The court emphasized the distinction between loss of earning capacity and loss of future earnings, and highlighted the objective evaluation of injuries and the nexus between disablement and adaptation provision of the workman.

PRADIP KUMAR MOHANTY, J.

( 1 ) THIS is an appeal under section 30 of the Workmen's compensation Act, 1923 (for short 'the act') against the order dated 6. 5. 1999 passed by the Commissioner for workmen's Compensation-cum-Joint Labour commissioner, Jeypore, Koraput in W. C. Case No. 1 of 1998.

( 2 ) THE case of the claimant-respondent is that one Istapan Gonda (respondent) filed a claim case in Form-F under the Act for payment of compensation against the executive Engineer, Nawarangpur electrical Division (appellant) stating that he was working as a lineman under the appellant. On 19. 11. 1993 while he was engaged in 33/11 K. V. line, climbing on a ladder he fell down and sustained multiple fracture injuries. After the accident he was admitted in Nawarangpur Government Hospital and was treated as indoor patient till 13. 2. 1994. However, he was not cured till the filing of the case. Moreover, he was unable to stand for half an hour due to the above injuries. For the above reasons, the claim petition could be filed on 7. 1. 1998 only along with a petition for condonation of delay. Subsequently after hearing the claimant and considering the initial deposition given by the claimant, the delay was condoned by the Commissioner.

( 3 ) ON receipt of notice, the appellant opposite party filed the written statement denying their liability. In order to prove his case, the claimant-respondent examined as many as four witnesses including claimant himself and appellant opposite party examined two witnesses including himself.

( 4 ) AFTER hearing the parties and considering the evidence, both oral and documentary, learned Commissioner vide his order dated 6. 5. 1999 directed the appellant to deposit the compensation amount of rs. 1,07,762 with interest at the rate of 12 per cent per annum from 19. 11. 1993 over and above the amount of compensation in shape of bank draft within thirty days. Mr. B. K. Pattanaik, counsel appearing for the appellant, submitted that disability and loss of earning capacity cannot be assessed in absence of the evidence of the doctor who was treating the respondent and contended that no doctor has been examined by the claimant-respondent in support of his case. He further contended that the delay was condoned by the commissioner without giving opportunity of hearing to the appellant. He also contended that the claimant-respondent had joined his duty by giving fitness certificate from the treating doctor and availed all benefits. He also submitted that since the claimant was re-engaged and was getting his usual salary there was no loss of earning capacity and, therefore, the question of any compensation does not arise. Mr. Mohanty, learned counsel for the claimant, on the other hand, submitted that the argument advanced by appellant cannot be sustained. It is argued that re-engagement cannot deprive the workman of his getting the benefit of compensation. He has further submitted that the Commissioner rightly condoned the delay as per settled principle of law.

( 5 ) FOR appreciation of rival contentions reference to section 4 (1) (c) (ii) of the Act is necessary. The same reads as follows:"4 (1) (c) (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. "

( 6 ) THE plea of the appellant is that, in the case of continuance of engagement and non-reduction in earnings, the claimant cannot claim any compensation. It is important to realise that an award for loss of earnings is different from that of compensation for loss of earning capacity. The compensation for loss of future earnings is awarded for real assessable loss approved by evidence. Disability cannot be equated with loss of earning power. Loss of earning capacity would depend upon not only the physical condition of the injured and th