Chakravartti, C.J:— This case must go back as, in my opinion, there has been no proper determination of the issues involved in the case upon a proper consideration of the evidence.
2. The appellant Kali Das Ghosal made an application for compensation on the 21st of June, 1954, in respect of injuries said to have been suffered by him by an accident which had taken place on the 18th of August, 1950, while he was in the employment of the respondent and in the course of that employment. The application stated that while the applicant had been on duty as a Watchman at night, his left hand got entangled in two live electric wires as a result of which he received a severe electric shock culminating in a weakening and disfigurement of his left hand, permanent loss of hearing and loss of teeth. According to him, his monthly wages were Rs. 70 and on that basis he claimed a lump sum payment of Rs. 2,000. That figure was arrived at after giving credit for Rs. 58 which, it was said, had already been paid by the respondent. At the foot of the application there was a note to the effect that the case could not be filed in time, as the applicant had been paid some amount and had then been promised the balance which was to be paid at the time of his discharge.
3. In his written statement the respondent denied that any person of the name of Kali Das Ghosal had been in his employment on or about the 18th of August, 1950. He added that one Kali Das Ghosal had served his domestic house-hold as a cook for a short term in a purely casual vacancy and that when a few months later, he had turned up again and asked for employment, he had again been given casual employment as a gardener to raise vegetables for purely domestic consumption in a plot of fallow land situated near his factory premises. As he had been employed merely as a domestic servant and subsequently as a gardener, the appellant, it was contended, could not possibly be a workman as contemplated by the Act, because he had never been employed in the respondent's trade or business. There was no specific denial of the facts alleged in the petition as regards the manner in which the accident was said to have occurred, but in paragraph 5 of his written statement, the respondent set out a series of denials under the letters (a) to (g) by which he broadly denied the existence of every component part or ingredient of the appellant's claim. The defence of limitation was, however, taken in a specific form and it was contended that the cause alleged for the delay in filing the application did not not amount to sufficient cause and, therefore, the application was liable to be thrown out as time-barred. The learned Commissioner framed five specific issues. They were, whether the appellant's claim was barred by limitation, whether the accident had arisen out of and in the course of his employment, what the rate of his monthly wages was, whether he had sustained any permanent partial disability and if so, to what extent and lastly whether he was a workman within the meaning of the Act.
4. The principal issue was the issue of limitation and the learned Commissioner devoted the greater part of his judgment to its consideration. He held against the appellant, but proceeding to consider the other issues, he held in his favour in respect of each one of them. In view of his finding on the question of limitation, however, he dismissed the application.
5. I regret to have to say that the learned Commissioner did not pay to the evidence the attention which was required to be paid, nor does he seem to have approached the several issues framed by him in a proper manner and with a full sense of their implication Before us. Mr. Mukherjee urged a single ground which was a ground against the learned Commissioner's finding on the question of limitation. The argument was that the principle which the learned Commissioner had applied was altogether wrong, because what he was required to find was only whether the appellant had sufficient cause for not making his application within the period of one year from the date of the accident and not also whether he had sufficient cause for not making the application within the subsequent period which had elapsed before the application was actually made. In support of that proposition, Mr. Kukheriee referred to certain decisions of this Court. In this case been one where proper findings had been arrived at, the principle contended for by Mr. Mukherjee would have to be examined, but, in my view, it is unprofitable to ??? on self in a discussion of a question of law so long as the primary facts remain to be finally and satisfactorily found. It appears to he that whether the appellant was only required to establish sufficient cause for not making his application within one year from the date of the accident or whether he was required to establish sufficient cause for not making his application till the data on which he did make it, it would be necessary to find how actually he had been occupied in the meantime, what his explanations were and whether those explanations could be accepted. The appellant was examined-in-chief in a very muddle-headed fashion by someone who does not seem to have known what facts were required to be elicited from the person who came to the Commissioner for Workmen's Compensation with an application of the kind which the appellant had made. Yet, it would appear that the appellant at least hinted at, if not very satisfactorily made out, three causes for the delay, namely, an alleged payment of some money by the respondent, protracted illness and lastly, resumption of his employment under the respondent. With regard to each of these explanations, there was some other evidence in the record in a contrary sense, which also had to be examined before any finding was arrived at, but it does not appear that the other evidence received any attention at the learned Commissioner's hands. There were, for example, the statement in the application that the respondent had paid the appellant a sum of Rs. 58, total omission of any reference to any such payment in the course of the deposition and a belated statement by means of an application after the deposition had been closed that the respondent had paid not Rs. 58 but Rs. 50. It is true that the learned Commissioner disposed of this particular explanation of the appellant by pointing out that, according to his statement in the course of deposition, he had not received any compensation, but the statement made in the subsequent application required at least to be referred to. So again was the question of resumption of duty by the appellant seven months after the accident, as alleged by him. He followed up that allegation by a further statement that he had not received any wages and the effect of that statement upon the allegation made by him that he had actually resumed his duties and served for two years and seven months required to be considered. Then again the appellant's case was that he had first been employed as a during and then as an Assistant Store-keeper, although he did not say whether it was before or after the accident that the charge-over in the post held by him took place. If he was an assistant to the Storekeeper the statement of the Store-keener in the course of his deposition that the appellant had never been his assistant required to be considered. I do not think I need multiply instances. But I must add that if in spite of discrepancies and contradictions in the evidence, the learned Commissioner found it possible to hold that, after the accident, the appellant was detained at his village home for seven months and during all that time he was ill and that on returning from home, he resumed his employment and remained employed for two years & seven months, as alleged by him, the bar of limitation would be got over, if failure to make the application within one year was all that the appellant had to explain. It would also be got over, even if the whole period of the delay was to be explained, if it would be held that there had been sufficient cause for the delay which had occurred since the termination of the resumed employment. To arrive at a proper further evidence would have to be properly examined. The finding; which the learned Commissioner chose to record was in my view, arrived at by him upon a very imperfect and perfunctory consideration of the evidence and I feel that it will be wrong to let it stand as it is and to act upon it.
6. Nor are the findings of the learned Commissioner on the other issues of any better quality. He was required to find with reference to issue No. 2 whether the accident, if it had taken place at all had arisen out of and in the course of the appellant's employment. It was obviously necessary to find in connection with that issue what the appellant's employment was. The learned Commissioner, however, began his discussion of the issue by saying that the applicant w?s a, during in the factory of the respondent, as that was an admitted fact. As I said a little while ago, the appellant's own case was that he had began as a durwan and had subsequently become an Assistant to the Store-keeper and, therefore although the case made in the application was that the accident had happened to him while he was on duty as a Watchman at night, it was necessary to find what the real employment of the appellant at the relevant time was and whether the statement made by him in his application was true. To begin saying that the appellant was a durwan was to beg the question.
7. Closely allied to the second issue framed by the learned Commissioner was the fifth. That issue asked whether the appellant was a workman within the meaning of the Act and again one finds the Commissioner beginning by saying that the appellant was a durwan in the respondent's factory. Whether he was a workman or not would depend upon what his work was and since his very employment was a disputed question and also the nature of the work he did during the time of his admitted employment, it was necessary for the learned Commissioner to find on a proper consideration of the evidence what the post was in which the appellant was actually employed at the time the accident was said to have taken place. Before arriving at a finding on that question, there could be no meaning in proceeding to decide whether or not the appellant was a workman within the meaning of the Act.
8. The learned Commissioner's finding on the third issue again represents his method of almost taking for granted what he was required to find. The appellant came to Court with the allegation that his monthly wages were Rs. 70 while in his deposition he stated that his pay was only Rs. 50 per month at the time of the accident. The learned Commissioner says that there would have been no difficulty in the way of the appellant's getting compensation on the basis of a monthly salary of Rs. 50 if his application had not been barred by limitation. He gives no reason why he accepts the statement in the deposition as final, seeing that the appellant himself had made different cases at different time. I do not say that the Commissioner could not in any case find that the monthly wages of the appellant, were Rs. 50 but before he could make a finding which could be accepted as a proper finding he would have to undertake an examination of the evidence and record the result of it.
9. The fourth issue was as to whether the appellant had sustained a permanent partial disability and if such a disability had been sustained, what its extent) was. On that point the learned Commissioner referred to the evidence of the appellant's own medical witness, Dr. Neogi, and said that since he had assessed the loss of the appellant's earning capacity at 15 per cent, the appellant would have been entitled to compensation on that basis, if his claim were not time-barred.
10. It seems to have become a habit in the Court of the Commissioner of the Workmen's Compensation to take medical evidence as to the extent of the loss of earning capacity or, if I may express it otherwise, the percentage of the disability. I am entirely unable to understand how any such practice could have been countenanced and allowed to grow and how it could ever be thought that a medical witness would be competent to speak to the extent of the less of earning capacity which had been occasioned by the effect of the physical injury. A medical witness can properly speak to the nature of the injuries suffered by a workman and the physiological or organic effect of such injury on the bedily system. As to such matters he is undoubtedly a competent witness. The Workmen's Compensation Act, however, is not concerned with physical injury as such, nor with the mere effect of such injury on the physical system of the workman, but it is concerned only with the effect of such injury or of the diminution of physical powers caused thereby on the earning capacity of the affected workman. To what extent the earning capacity has been affected, it can never be for a medical witness to say. Medical evidence is opinion evidence and it is only with regard to the physical aspect of the injuries that the opinion of a medical witness is relevant and admissible as the opinion of an expert. But loss of earning capacity is not a matter for medical opinion and is not a matter to which a medical witness can possibly speak, A doctor can say from his special knowledge what injuries the physical system of the workman has suffered by reason of the accident and what effect, temporary or permanent, those injuries have left on the system or to what extent the normal Physical powers of a man of the age and physique of the affected workman could reasonably be said to have been reduced. He can go that far but at that point he must stop. After the medical evidence as to the nature of and measure of the physical infirmity has been given, the substance of that evidence is to be taken over and applied in the assessment of the loss of earning capacity as one of the factors and perhaps the principal factor. But loss of earning capacity or the extent of it is a question of fact. It has got to be determined by taking into account the diminution or destruction of physical capacity, as disclosed by the medical evidence and then it is to be seen to what extent such diminution or destruction could reasonably be taken to have disabled the affected workman from performing the duties which a workman of his class ordinarily performed and from earning the normal remuneration paid for such duties. It may very well happen that in spite of the weakening or even the loss of a limb, the capacity of the affected workman to do the kind of work he was accustomed to do has not in the slightest decree been affected, nor has any difficulty arisen in the way of his getting employment of the usual kind by reason of the injury. In such a case, in spite of the physical injury and the effect, of it, there will be no loss of the earning capacity. On the other hand, it may happen that the diminution of physical powers or the destruction of a limb makes it impossible for tile affected workman to do the kind of work he used to do formerly with equal efficiency, as a result of which, although he finds it possible to obtain remunerated employment, he is not offered remuneration at the old rate. In such a case, there will be a reduction of the earning capacity but not total loss. Total loss will occur where, by reason of the infirmity caused by the injury, the affected workman is unable altogether to perform duties of the nature he had been accustomed to perform and to obtain any employment because of his total incapacity for work. But total loss of earning capacity may also occur in another way. It may be that the particular physical injury suffered by the workman, such as the loss of an eve or loss of an arm, has not in fact affected the workman's capacity for doing the kind of work he had been accustomed to do, and that physically he is still in a position to perform the same kind of work with an equal degree of efficiency and yet it may be that because of the visible disfigurement, he is refused employment by every one so that his labour has become altogether unsaleable in the market where he can take it and, therefore, his capacity for earning remuneration by work has in fact disappeared, although physical capacity has not. These are some of the matters which have to be considered when the question of a loss of earning capacity arises and the loss or diminution of such capacity must obviously be established by evidence other than the medical evidence. The utmost a medical witness can give by way of a percentage is to give the percentage of the loss of the normal physical capacity or power. The loss of earning capacity is not necessarily coextensive with the loss of physical capacity & certainly the former does not prove the latter. The learned Commissioner, therefore, was altogether wrong in - taking the evidence of the medical witness not only as relevant but as decisive on the question I of the loss of earning capacity.
11. As I have already said, the practice of taking medical evidence as proper evidence on the question of loss of earning capacity seems to have taken firm root in the Court of the Commissioner for Workmen's Compensation and, therefore, it will be wrong to hold that the learned Commissioner went particularly wrong in this particular case or that the responsibility for relying upon such evidence lay wholly upon the present parties. The parties might be excused, if they adjusted the evidence to the principles which they found in vogue in the tribunal where they; were leading their evidence. Yet findings arrived at on evidence of so irrelevant a character ought not to be allowed to stand.
12. The reason for my saying what I have just been saying is that while I realise that, ordinarily, it will be extremely imprudent and risky to allow the parties to adduce fresh evidence, when remanding a case and directing its re-hearing, it is necessary in this particular case to give the parties that liberty with respect to the one question of loss, if any, of the earning capacity of the appellant, provided that question calls for decision. I am making that exception, because it seems desirable to make this case an occasion for correcting an error which seems to be steadly spreading.
13. In the result, this appeal is allowed. The judgment and order of the learned Commissioner are set aside and the case is sent back to him with a direction that he should re-hear it in accordance with law and in the light of the observations contained in this judgment on the evidence already on record, except as regards the question of loss of earning capacity.
14. On that single question and on that question alone, the parties wall be entitled to adduce additional evidence.
15. Costs of this appeal will be costs in the case, that is to say, the party who will be successful before the learned Commissioner will get the costs — the hearing fee being assessed at three gold mohurs.
16. Das Gupta, J.:— I agree.
H.G.P
17. Appeal allowed.