MFA 25/2000 BEFORE HON’BLE MR JUSTICE B.P. KATAKEY 1. Heard Mr. SS Sarma, learned senior counsel for the appellant. No ne appears for the respondents though the names of the learned counsel appearing for the respondent/claimant are reflected in the cause list. 2. The appellant has filed the appeal under Section 30 of the Workm en’s Compensation Act challenging the award dated 28.1.2000 passed by the learne d Commissioner, Workmen’s Compensation, Nagaon in Case No. NWC 68/99. The ground s on which the award has been challenged are that - (i) the learned Commissioner has assessed the loss of earning capacity of the workman concerned without rega rd being had to the percentage of loss of earning capacity specified in Schedule I as required under Explanation II to Clause (c) to sub section 1 of Section 4; (ii) such loss of earning capacity has been assessed as 50 % on the basis of th e medical certificate (Ext. 3) certifying the physical disability and not the lo ss of earning capacity; and (iii) without ascertaining whether the injuries sust ained by the workman resulted in permanent partial disablement or temporary dis ablement within the meaning of the said Act. 3. Vide order dated 3.4.2000, the appeal has been admitted for hear ing on the substantial question of law as to whether the learned Commissioner, W orkmen’s Compensation can assess the compensation without taking into considerat ion the Explanation II to Section 4(1)(c) of the Act. 4. Mr. Sarma, learned senior counsel for the appellant referring to the impugned award dated 28.1.2000 has submitted that the learned Commissioner has awarded the compensation by taking the loss of earning capacity of the workm an as 50 % on the basis of the medical certificate (Ext. 3) issued by the Medica l practitioner assessing the physical disability at 50% without there being any assessment of loss of earning capacity as required by Section 4 (1)(c)(ii) of th e Act. It has also been submitted by the learned senior counsel that the learned Commissioner also did not consider the percentage of loss of earning capacity i n relation to different injuries specified under Section 1 of the Act as require d under Schedule (II) to Section 4(1)(c) while assessing the loss of earning cap acity of the workman concerned. The further submission of the learned senior cou nsel is that the award was passed without also ascertaining as to whether the in juries sustained amounts to permanent partial disablement so as to award compens ation under Section 4(1)(c) or temporary disablement entitling the workman to ge t the award under Section 4(1)(d) of the Act. The learned senior counsel, theref ore, submits that the award passed by the learned Commissioner may be set aside and the matter be remitted to the learned Commissioner for fresh decision. 5. It appears from the record that the respondent No. 1/claimant ha s filed the application claiming compensation under the provision of the Act con tending inter alia that while he was driving a motor vehicle bearing registratio n No. AS-02 6009 (609 Bus), it met with an accident on 31.5.2009 at about 4.30 P .M. in a place near Samuguri Police Station in the district of Nagaon and as a r esult of which he has sustained injuries. It has also been contended in the said application claiming compensation that the respondent No. 1 workman received su ch injuries in course of and arising out of employment as a driver. In the said proceeding apart from the employer i.e. the owner of the motor vehicle, the pres ent appellant has also been arrayed as opposite parties since there was a contra ct of insurance with the appellant Insurance Company in respect of the liability in relation to the vehicle in question. 6. The owner of the vehicle i.e. the employer filed the written sta tement admitting the claim of the respondent/workman. It has also been contended that since there is a contract of insurance between the appellant Insurance Com pany and him, the amount, if any, payable is to be paid by the Insurance company . The present appellant who was the opposite party No. 2 also contested the proc eeding by filing the written statement denying all the averments made and put th e workman to prove the facts. 7. The respondent/workman in support of his claim examined himself and proved 18 documents which includes the medical certificate (Ext. 3) issued b y the doctor attending him. The learned Commissioner upon appreciation of the ev idence on record passed the order awarding the compensation of Rs. 1,22,310/- wi th interest at the rate of 12% per annum, which was quantified at Rs. 9705.90, t otaling Rs. 1,32,015.90 and directed the appellant to satisfied the said award, in view of the contract of insurance between the employer and the Insurance Comp any. 8. In the present appeal, the factum of accident, the monthly wage and the injuries sustained by the workman arising out and in course of his emplo yment have not been challenged and, therefore, are not required to be gone into. The contract of insurance between the appellant Insurance Company and the emplo yer/respondent No. 2 is also not under challenge. As noticed above, the appellan t Insurance Company has challenged the award on the ground that the learned Comm issioner has assessed the loss of earning capacity on the basis of the medical c ertificate (Ext. 3) issued by the attending doctor certifying the percentage of physical disability of the workman concerned without there being any certificati on relating to the loss of earning capacity as required under Section 4(1)(c)(ii ) of the Act and that there is no finding as to whether such injuries result in permanent partial disablement or temporary disability. The other ground of chall enge is that the loss of earning capacity has been assessed without regard being had to the percentage of loss of earning capacity and without taking into consi deration as provided in Explanation II of Section 4(1)(c) of the Act. 9. It appears from the impugned award that the claimant proved the medical certificate issued by the attending doctor as Ext. 3 who certified that the physical disablement of the workman as 50%. Such certificate was issued on 1 0.6.1999. The learned Commissioner has assessed the loss of earning capacity of the workman at 50% solely based on the said certificate (Ext. 3) certifying the percentage of physical disability of the workman concerned. 10. Section 4(1)(c)(ii) provides that where permanent partial disabi lity resulted from the injury not specified under Schedule I, the percentage of the compensation payable in respect of the permanent total disablement has to be proportionate to the loss of earning capacity as certified by the medical pract itioner permanently caused by the injury. Explanation II to Section 4(1)(c) also requires that in assessing the loss of earning capacity for the purpose of sub clause (ii) of clause (c) of sub section (1) of Section 4 of the Act, the qualif ied medical practitioner shall have due regard to the percentage of loss of earn ing capacity in relation to the different injuries specified in Schedule I. 11. Upon reading the said provision of law it, therefore, appears th at the loss of earning capacity is to be assessed by the qualified medical pract itioner having due regard to the loss of earning capacity in relation to the dif ferent injuries specified in Schedule I of the Act. 12. In the instance case, as noticed above, there was no assessment of loss of earning capacity by the medical practitioner in the certificate issue d by it, which has been proved by the workman as Ext. 3. What has been certified by the said certificate is the percentage of physical disability. The learned C ommissioner has taken the percentage of physical disability as the loss of earni ng capacity, which is not permissible in law. The learned Commissioner has also not recorded any finding as to whether the injuries sustained by the workman res ulted in permanent partial disablement or temporary disablement, total or partia l, which the learned Commissioner is required to do as the amount of compensatio n payable in respect of the aforesaid contingency are different. 13. In view of the aforesaid discussions, the impugned award dated 2 8.1.2000 is set aside. The matter is remitted to the learned Commissioner to dec ide the case No. NWC 68/99 afresh, if necessary by allowing parties to adduce fu rther evidence. It is, however, made clear that if the amount as awarded by the learned Commissioner has already been disbursed to the workman concerned, which fact could not be ascertained from the records as produced by the learned Commis sioner and also due to non appearance of the learned counsel appearing for the w orkman, the learned Commissioner shall not proceed to decide the said proceeding in terms of the direction passed by this Court, as it is quite impossible, keep ing in view the economic condition of the workman concerned, to recover the amou nt from him. 14. The appeal is accordingly allowed with the aforesaid directions. No cost. 15. The Registry is directed to send down the records forthwith.