The main legal point established in the judgment is that in cases under S.4(1)(c)(ii) of the Workmen's Compensation Act, the Commissioner cannot unilaterally determine compensation disregarding the assessment by the qualified medical practitioner.

Pareed Pillay, Ag. CJ.

Appellant (New India Assurance Company) is the third opposite party in W.C.C. 118 of 1988 before the Deputy Labour Commissioner (Commissioner for Workmen's Compensation), Kozhikode. First respondent (applicant) filed application under S.22 of the Workmen's Compensation Act, 1923 (referred to as 'the Act' for brevity ) claiming compensation for personal injuries sustained by him on 14-11-1987 during the course of his employment as driver in the Autorikshaw KED-1232 owned by the second respondent. Applicant sustained injuries including fracture of tibia and fibula. Second respondent admitted the employment of the applicant as his driver. The accident is also admitted.

2. This is a case where the qualified medical practitioner certified the percentage of the disability and the Commissioner did not accept the same. Commissioner fixed 100% loss of earning capacity and on that basis determined the compensation. Applicant's contention is that the compensation determined by the Commissioner is without jurisdiction. It is contended that in terms of S.4(1) (c) (ii) of the Act the Commissioner has no jurisdiction to fix percentage of disability at variance with the percentage of disability certified by qualified medical practitioner. According to the appellant, Commissioner has no discretion in the matter and as the very section itself states that the compensation has to be assessed on the basis of the loss of earning capacity as assessed by the qualified medical practitioner and where he certifies the percentage of loss of earning capacity the Commissioner is bound to accept the same.

3. Applicant's contention is that Commissioner being the authority to fix the' compensation under the Act has to fix the loss of earning capacity on the basis of which compensation is to be awarded. It is stated that where the qualified medical practitioner has not certified the percentage of the loss of earning capacity, the Commissioner can really fix the same on other evidence. Applicant's stand is that the certificate issued by the qualified medical practitioner is only a piece of evidence just like other evidence and it is for the Commissioner to judge its probative value and effect.

4. For a resolution of the rival contentions it is necessary to read S.4 of the Act. Section 4 reads:

In this case, the workman has sustained only non-scheduled injuries and hence S.4(1)(c)(ii) alone has application.

5. Section 4 of the Act provides for the determination of the amount of compensation. Section 4(1)(a) deals with the case where death results from the injury. The compensation in such a case shall be the amount equal to forty percent of the monthly wages of the deceased workman multiplied by the relevant factor or Rs. 20,000/- whichever is more. Section 4(1)(b) deals with permanent total disablement resulting from the injury. The compensation in such a case shall be the amount equal to fifty per cent of the monthly wages of the injured workman multiplied by the relevant factor or Rs. 24,000/- whichever is more. "Relevant factor" means the factor specified in the second column of Schedule IV against the entry in the first column of that Schedule specifying the number of years which are the same as the completed years of the age of the workman on his last birthday immediately preceding the date on which the compensation fell due (Vide Explanation I). Explanation II is to the effect that where the monthly wages of a workman exceed one thousand rupees, his monthly wages for the purposes of Clauses (a) and (b) shall be deemed to be Rupees one thousand only. Sub-clause (c) of Section 4(1) is concerned with permanent partial disablement resulting from the injury. Part II of Schedule I has enumerated list of injuries resulting in permanent partial disablement. In a case coming under the category of permanent partial disablement, such percentage of the compensation which would have been payable in the case of permanent total disablement as