The main legal point established in the judgment is the requirement for the assessment of loss of earning capacity by a qualified medical practitioner under S.4(c)(ii) of the Workmen's Compensation Act and the importance of medical evidence in proving the loss of earning capacity.

John Mathew, J.

These arc appeals filed under S.30 of the Workmen's Compensation Act, 1923, for short 'the Act', against orders of the Commissioner for Workmen's Compensation (Deputy Labour Commissioner), Kannur, in different cases. When we noticed that a large number of appeals were being filed against the orders of this Commissioner, we directed the office to post-them together. On a perusal of the records we prima facie found that in most of these appeals learned Commissioner has erred in fixing and awarding compensation. Accordingly we passed the following order on M.F.A.No. 649 of 1993 on 13-7-1993:

"Notice. Give notice to A.G. also. Issue notice to Shri.G. Sasidharan Nair, Commissioner for Workmen's Compensation (Deputy Labour Commissioner) Kannur, informing him that he may appear, if he thinks it necessary, at the final hearing of this case and the following similar cases, since prima facie we are of the

view that in these cases some strictures against the officer are likely to be made: 1) M.F.A. 607/93 - W.C.C. 124/91

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On receipt of this order the learned Commissioner entered appearance through Advocate Mr. M. Ramachandran, who ably represented his case.

2. In the nature of the contentions raised by learned counsel appearing for the parties the following general points arise for consideration:

i) Whether in the case of an injury not specified in Schedule I to the Act can the Commissioner fix the percentage of loss of earning capacity without an assessment by a qualified medical practitioner?

ii) Is it proper on the part of the Commissioner to disburse the compensation amount deposited before the expiry of the appeal period?

Point No.(i)

3. Prior to 1984 Amendment S.4 of the Act was as follows:

' "4. Amount of compensation:- (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:

(a)

(b)

(c) Where permanent partial disablement results Vom the injury

(i) I

(ii) In the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity permanently caused by the injury."

(Explanation and remaining Section are omitted).

4. Subsequent to the amendment by Act 22 of 1984 the present provision is as follows:

"4. Amount of compensation. - (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely: -

(c) Where permanent partial disablement results from the injury:

(ii) In the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury;

XX XX XX

xx xx xx"

From a reading of these two provisions it is clear that after the amendment it is essential that the loss of earning capacity is to be assessed by the qualified medical practitioner.

5. How to estimate the loss of earning capacity was considered by various courts. Loss of earning capacity is different from loss of physical capacity. Earning capacity is capacity to earn money. (Sec Agent, East Indian Railway v. Maurice Cecil Ryan, AIR 1937 Cal. 526, and Commissioners for Port of Calcutta v. Prayag Ra/n, AIR 1967 Cal. 7). In some cases any physical defect which may occur as a result of the accident may not reduce the worker's earning capacity or capacity to do work. Incapacity for work is not to be ascertained merely by examining whether the workman is suffering from physical injury. It is to be ascertained by reference to his incapacity to earn wages. If his wage earning capacity is diminished he tan be said to be suffering from partial incapacity for work. However, if his wage earning capacity has not been affected, noomthstanding the fact that he may be having some physical injury, he is not entitled to compensation. Therefore the loss of earning capacity is a q