JUDGMENT [ENTITY], J.
1. The instant appeal is preferred by the workman aggrieved by and dissatisfied with the order dated 12th February, 1998 passed by the learned Commissioner, Workmen's Compensation, West Bengal in [CASE NUMBER] whereby and whereunder the workman was awarded compensation in the sum of Rs. 24,199/- and the Insurance Company was directed to deposit the sum within one month from the date of the said order.
2. Brief facts of the cases are that the applicant is a '[ENTITY]' of the motor vehicle bearing No. WB-23/1319. He is said to have sustained injury in an accident which occurred on 19th August, 1996 and claimed compensation for 100% loss of earning capacity. The accident occurred when the truck WB-23/1319 capsized due to reckless driving of the driver. The compensation has been awarded by assessing the loss of earning capacity as 20% when the claim was for 100% disability. The monthly wages has been determined at Rs. 1,000/- p.m. and the age of workman at the time of accident as 33 years. Assailing the award of compensation on the aforesaid basis, it is contended that the loss of earning capacity should have been assessed at 100% and the wages ought to have been determined at Rs. 2000/- p.m. as per the certificate and the testimony of the Medical Practitioner.
3. On the other hand, Mr. [ENTITY], learned counsel appearing on behalf of the Insurance Company submitted that the claim of the petitioner based upon the certificate and evidence of PW-3 is untenable. The said medical practitioner is not a qualified Doctor and neither his testimony nor his certificate (Exhibit-3) can be relied upon for awarding compensation at 100% loss of earning capacity.
4. As regards the wages earned, the learned Commissioner arrived at the following conclusion:
"P.W.-1/applicant has stated in cross-examination that he used to get wages for all the days but he has no document to prove his wage per day. P.W.-2 has stated in cross-examination that he used to pay [ENTITY] Rs. 70/- per day as his wages by taking the same from the owner [ENTITY]. No document in support of claim of the P.W.-2 is proved. Owner [ENTITY] has not come to adduce evidence in the matter of wages per month of the P.W.1. I do not think that owner of a truck will give Rs.70/- per day without receipt, to the [ENTITY] of a truck owned by him. In absence of document, but considering the economical condition of the society, it is taken, for the purpose of assessment of compensation in this case, that wages of the applicant per month was at least Rs. 1000/- at the time of accident."
5. Merely because the owner of the truck did not come forward to adduce evidence when he was a party to the proceeding before the learned Commissioner, if at all, adverse Inference ought to have been drawn against the owner. Instead the learned Commissioner has chosen to presume in favour of the owner.
6. In assessing 20% as loss of earning capacity, the learned Commissioner found as follows:
"No treatment paper of Burdwan Hospital has been filed or proved by the applicant In this case. The facts shown aforesuggest that the applicant was neither admitted in Burdwan Hospital nor treated there as an indoor patient as he has claimed. I have considered these facts too In assessing loss of earning capacity of the applicant due to the accident in question."
7. The learned Commissioner, however, held as follows:
"Accident involved in this case is dated 19.8.96. [SECTION] and [SECTION] of the [ACT] were amended in 1995 giving effect to this amendment on and from 15.9.1995. So, considering the present position of [SECTION] of the [ACT] and taking loss of earning capacity as well as age and wages of the applicant, at the time of accident, as 20%, 33 years and Rs. 1,000/- P.M. respectively. Compensation payable to the applicant in this case is assessed at Rs. 24,199.20p. but ignoring the fraction the applicant is allowed Rs. 24,199/-".
8. On behalf of the applicant-workman much reliance has been placed upon the certificate issued by the Medical Practitioner "Dr. [ENTITY]". The said medical practitioner was also examined as PW-3. According to the certificate "Exhibit 13" and the oral testimony, the workman is said to have suffered permanent total disablement of 100%.
9. In his depositions "Dr. [ENTITY]" has described himself as Retired Medical Superintendent of South Eastern Railway. What his qualifications are have not been stated. The designation stated is vague.
10. In [PRECEDENT], this Division Bench has considered a somewhat similar matter. In that case also Dr. [ENTITY] had been examined as P.W.-3 and had assessed 100% disability.
11. In that case, the following passage from judgment of a learned single Judge of Andhra Pradesh High Court in [PRECEDENT]. dealing with the question of the requirement of the loss of earning capacity of the applicant workman to be assessed by a qualified medical practitioner after amendment of the Act w.e.f. 1st July, 1984 was extracted;
"Before the [ACT], the taw did not require that, the loss of earning capacity of the applicant workman should be assessed by a qualified medical practitioner. The legislature in its wisdom thought it necessary and fit to make a provision, enabling the assessment of loss of earning capacity of the workman by a qualified medical practitioner and this amendment came into force with effect from 1st July, 1984. When the statute commands the Commissioner, who is the adjudicatory authority under the Act, to exercise power vested in him in a particular manner and subject to certain conditions statutorily laid, then the adjudicatory authority Commissioner is statutorily bound to follow the same and if, there is any departure from the prescribed procedure or violation of the conditions, then it could be straightway stated that the Commissioner has committed an illegality. At the same time, it should be noted that each and every violation of a condition or conditions or violation of rule or rules of procedure would not tantamount to commission of an error of jurisdiction. Even before the [ACT], the Commissioner had Jurisdiction to compute the compensation payable to an injured employees. The only change brought about by the [ACT], providing for assessment of loss of earning capacity by a qualified medical practitioner is an amendment regulating only the procedure to be followed by the Commissioner and it is not an amendment restricting or abridging the Commissioner power otherwise available to him under the provisions of the Act in the matter of determination of compensation payable to the workman under [SECTION] of the Act."
12. The Division Bench, in that case, held;
"while arriving at such conclusion, the learned Judge has referred to a Full Bench decision of the Kerala High Court in [PRECEDENT]. By reason of [ACT]. the loss of earning capacity of the appellant workman should be assessed by a qualified medical practitioner. The said amendment, keeping in view the well-known doctrine of head and souts must be given the importance and significance. Such an amendment must be held to have been made keeping in view the medical practices which were prevalent as prior thereto. A bare perusal of the Judgment under appeal would show that the learned Tribunal below did not bestow any consideration as regards the said factor at all. P.W.-3 has not been found to be a qualified doctor to assess loss for determination of compensation. It is not the case of the applicant-
respondent that he comes within the purview of the six Injuries referred to in [SECTION] appended to [ACT].
It was, therefore, obligatory on the part of the Tribunal below to arrive at a finding of fact as to whether P.W.-3 was a qualified doctor and in any event he should have referred to the report for the purpose of coming to conclusion as to whether such report should be accepted on its fact value.
13. Applying the above dicta to the instant case. It is seen that the case of the appellant also does not come within the purview of the six injuries referred to in [SECTION] It was, therefore, obligatory on the part of the learned Commissioner to have considered the question as to the loss of earning capacity to be assessed by a qualified medical practitioner which he failed to do, if in the opinion of the learned Commissioner, P.W.-3 is not a qualified Medical Practitioner. However, it is needless to state that the probative value of the Medical Certificate has to be adjudged by the learned Commissioner taking into consideration the entirety of evidence. In this connection, a passage from the judgment of the Division Bench of Kerala High Court in [PRECEDENT] is apposite and with which we are in respectful agreement, reads a under:
" we have to accept the position that inspite of numerous decision of different Courts to the effect that in case of non-scheduled injuries the Commissioner is the authority to adjudicate and determine the percentage of loss of earning capacity the legislature thought it necessary to amend [SECTION] of the Act in order to vest in the qualified medical practitioner the power to assess the loss of earning capacity in the case of non-scheduled injuries. The motive of the legislature in making the 1984 amendment is beyond the scrutiny of Courts. Nor can the Courts examine whether the legislature had applied its mind to the provisions of a statute before passing it. The propriety, expediency and necessity of a legislative Act are not for determination of the Courts. (See [PRECEDENT] ). No doubt while assessing the percentage of loss of earning capacity the authority should have adequate knowledge of various other factors, like the nature of the work, chances of re-employment, number of years of service of the workman etc. The assessment made by the qualified medical practitioner can only relate to the physical disability of the workman. Although that is an important factor in assessing the loss of earning capacity of a workman there may not be any doubt that this is not the only factor. Therefore, we cannot held that after the 1984 amendment the Commissioner has no power at all to determine the loss of earning capacity of an injured workman. However, proved medical evidence has to be insisted upon by the Commissioner which is the primary basis on which the loss can be assessed."
14. In assessing the percentage of disablement, the learned Commissioner is to consider whether disablement is permanent and total which has to be judged from the point of view of the job which the workman was doing and whether such injury incapacitated the workman from all work which he was capable of performing at the time of accident. (See-[PRECEDENT]., ).
15. A perusal of the Judgment under appeal would show that the learned Commissioner has not taken into consideration the above aspects of the matter. Therefore, we are of the opinion that the judgment under appeal cannot be sustained. It is set aside accordingly. The appeal and the application are allowed in part The proceedings are remanded to the learned Commissioner for Workmen's Compensation, West Bengal with a direction to consider the claim of the claimant respondent afresh strictly in accordance with the provisions of the Act and the Rules framed thereunder after affording an opportunity to the parties to lead additional or fresh evidence at an early date and preferably within a period of two months from the date of communication of this order.
There shall, however, be no order as to costs.
[ENTITY], J.
16. I agree.
17. Appeal allowed in part