THOTTATHIL B. RADHAKRISHNAN, J.

1. This appeal by an insurer is against an award passed under the Workmen's Compensation Act, 1923 (since re-christened "the Employees' Compensation Act, 1923"). No such appeal shall lie unless a substantial question of law is involved in it, in view of the first proviso to Section 30(1) of that Act.

2. Before the Commissioner, the insurer denied liability to indemnify the insured on the plea that the incident did not arise in the course of employment. It also disputed the lump sum payment claimed by the applicant and his plea as to the monthly wages.

3. Appreciating the evidence, the Commissioner held that the applicant was driving the lorry of his employer and when it reached near a check post, a group of men manhandled him. FIR, accident-cum-would certificate, reference card to the Medical College Hospital, body mahazar, certificate issued by the Sub Inspector of Police etc. were taken on record. The accident was, thus, found as one that falls within the ambit of the provisions of the Act.

4. Supporting the appeal, it is argued, firstly, that the monthly wages ought to have been pegged at Rs.4,000/-, having regard to the provision in Explanation II to Section 4(1)(a) and (b) and the impugned award, treating the monthly wages as Rs.6,000/-is unsustainable in law. Secondly, it is argued that the percentage of loss of earning capacity has not been assessed by a qualified medical practitioner in terms of the decision of the Full Bench of this Court in New India Assurance Co. Ltd. v. Sreedharan [1995(1) KLT 275]. The further plea is that the Commissioner awarded amounts in excess of that claimed.

5. We first proceed to consider the primary plea of the insurer that the monthly income of the workman ought to have been pegged at Rs.4,000/-and the argument on its behalf with reference to Explanation-II occurring after clauses (a) and (b) of sub-section (1) of Section 4. A survey of the Act shows that the legislature visualised five contingencies, to start with. They are (1) death; (2) permanent total disablement; (3) permanent partial disablement; (4) temporary total disablement; and, (5) temporary partial disablement. We also see the legislation categorising the injuries as those included in the Schedules, also with deeming provisions. Section 4(1)(a) deals with cases where death results from the injury. Fortunately, this is not such a case. Section 4 (1)(b) deals with cases where permanent total disablement results from the injury. To his fortune, the claimant in this case is not permanently totally disabled. It is a case of permanent "partial" disability. The determination of compensation due to the applicant would not, therefore, fall within Section 4(1)(b). It falls, squarely under section 4(1)(c), which governs cases where permanent partial disablement results from the injury. The limit of Rs.4,000/- fixed in Explanation-II to Section 4(1)(a) & (b) is not applicable to cases which fall under Section 4(1)(c). The appealing insurer's plea that the Commissioner ought to have pegged the monthly income of the workman at Rs.4,000/-applying Explanation-II occurring after clauses (a) and (b) of Section 4(1) of the Act, therefore, fails.

6. As regards the appealing insurer's second plea based on New India Assurance Co.Ltd.(supra), the fact that the medical certificate has been issued by a qualified medical practitioner is not disputed. As noted supra, excluding death, disability, in the physical sense, could be permanent total disability, permanent partial disability, temporary total disability or temporary partial disability. These are the types on which the physical disability can be classified in terms of the status of the body. When it comes to the loss of earning capacity, it has to be determined with reference to the occupation of the person concerned. This is the method of determination of loss of earning power or earning capacity. Though the statute uses the phrase "loss of earning capa