Patra, J.:— A learned Single Judge while hearing this appeal did not find himself in agreement with the opinion expressed by another learned Single Judge of this Court in National Insurance Company, Ltd. v. Narendra Samal [1993 Acc. C.J 1095]. That is how, on being referred, this matter has come before us for hearing.

2. The appellant - C. David is a driver. On May 18, 1992, at about 5.40 A.M when he in his capacity as driver was driving the car bearing registration No. ORX 1512 belonging to respondent 1, it collided with a truck No. AP/T-2349 coming from opposite direction near the Rajaloka crossing under Jhara Pokharia PS. in the district of Mayurbhanj on N.H No. 5. As a result of the accident, the car was badly damaged and the appellant was seriously injured with fracture of right elbow and multiple injuries all over his body. He was removed to Baripada hospital for treatment. Later, he got himself treated in S.C.B Medical College and Hospital, Cuttack, and also in a private clinic. After some days he filed an application before the Deputy Labour Commissioner-cum-Commissioner for Workmen's Compensation claiming compensation of Rs. 70,000 for the injuries sustained by him. The said application was registered as W.C Case No. 560-D of 1992. Respondent 1 the owner and respondent 2 the insurer appeared before the Commissioner and filed their respective written statements. On perusal of evidence, the commissioner, by the impugned order, came to hold that the appellant was injured and incurred physical disability in course of and arising out of his employment as a workman. He further held that at the time of the accident, the appellant was about 40 years of age and was getting Rs. 1,000 per month towards his wages. The Commissioner found that the appellant sustained different grievous and simple injuries including multiple fracture of right ulna and right forearm. The Commissioner accepted the statement of the doctor that the appellant suffered to the extent of permanent partial physical disability at 60 per cent and assessed the compensation under S. 4(b) of the Workman's Compensation Act, 1923 (hereinafter referred to as the Act) as indicated below:

“50 per cent of wage, i.e, Rs. 500 × extent of disability, i.e, 60 × age factor of years, i.e 184.17 to be divided by 100, that is to say

As the offending car was duly insured with the insurer — respondent 2, which was valid at the time of the accident, the Commissioner fixed the liability to pay compensation of Rs. 55,251 on respondent 2

3. The appellant being aggrieved by the aforesaid order of the Commissioner has filed this appeal under S. 30(1) of the Act contending that the amount of compensation is inadequate which ought to have been fixed as a case of total disablement.

4. Let us first find out the extent of injury suffered by the appellant on account of the accident and the nature of physical disability. The Commissioner on perusal of the medical report issued by the Medical Officer of the district headquarters hospital found that the appellant had sustained multiple fracture of right ulna, right forearm besides other grievous and simple injuries on his person. P.W 2-Dr. S.K Mohapatra examined the appellant on March 13, 1993, at his private clinic at Cuttack. In his evidence, he stated that with the present condition of deformity, the appellant's percentage of disability was 60 per cent.

5. Sri Nanda relying on the judgment of the Supreme Court in Pratap Narain Singh Deo v. Shrinivas Sabata [1976 (1) L.L.N 16], and a judgment of a learned Single Judge of this Court in National Insurance Company, Ltd. v. Narendra Sama (vide supra), contends that the percentage of loss of earning capacity of the appellant should be assessed at 100. Sri Mohanty counsel appearing for the insurer-respondent 2 on the other hand submits that the aforesaid proposition urged on behalf of the appellant is not tenable in view of absence of any evidence by the doctor in assessing the loss of earning capacity as required under S. 4(1)(c)(ii), Explanation II of the Act. In support of his submission, Sri Mohanty relied on the judgment of this Court in New India Assurance Company, Ltd. v. Babaji Das [(1995) 79 Cut. L.T 889] and Para. 14 of the judgment of a Division Bench of this Court in Oriental Insurance Company, Ltd. v. Dinabandhu Pradhan [(1994) I.O.L.R 464].

6. Under the Act, the amount of compensation is to be determined in accordance with the provisions contained in S. 4 thereof. On perusal of S. 4 of the Act, it would appear that the result of injuries giving rise to a claim for compensation are divided into the following:

(i) Death.

(ii) Permanent total disablement.

(iii) Permanent partial disablement.

(iv) temporary disablement.

Schedule I of the Act contains a list of bodily injuries which are deemed to result in permanent total disablement with 100 per cent of loss of earning capacity. The said scheduled contains another list of injuries (Part II) which are deemed to result in permanent partial disablement with varying percentage of loss of earning capacity. In the instant case, there is no dispute at the Bar that the injuries sustained by the appellant are non-schedule injuries. To meet such case of injuries not specified in Sch. I, the statute has provided an elaborate provision in S. 4(1)(c)(ii), Explanation II of the Act. For the sake of convenience, we may quote the relevant portion of the provision:

“4. Amount of compensation.— (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:

(a) x x x

(b) x x x

(c) where permanent partial disablement results from the injury.

(i) x x x

(ii) in the case of an injury not specified in Sch. I, such percentage of the compensation payable in the case of permanent total disablement as a proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury,

Explanation.— I

Explanation.— II — In assessing the loss of earning capacity for the purposes of Sub-cl.(ii), the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in relation to different injuries specified in Sch. I.

(d) x x x”

A reading of the above provision would show that a bare statement of the doctor (P.W 2) in his evidence that with the present condition of deformity, the appellant's percentage of disability is 60 per cent is not acceptable. The injury sustained by the appellant being non-schedule one, there must be positive evidence through the doctor as envisaged in S. 4(1)(c)(ii), Explanation II of the Act. In order to bring the appellant's case to one of loss of 100 per cent earning in capacity, evidence should have been elicited from P.W 2 in the line indicated in the aforesaid provision. On perusal of the evidence or P.W 2, we do not find an iota of evidence in that regard. As observed in Para. 14 by a Bench of this Court in the case of Dinabandhu Pradhan [(1994) I O.L.R 464] (vide supra), that the corresponding obligation to make proper assessment of the loss of earning capacity rests on the concerned medical practitioner. The assessment should be unbiased, fair and backed by basis and reasons. It cannot be outcome of any arbitrary guess work unsupported by basis and/or reason. Sanctity attached to the assessment is on account of expertise which the qualified medical practitioner is supposed to posses. The doctor is required to make assessment of loss of earning capacity which is the foundation for working out entitlements of the claimant. Even otherwise, disability of certain percentage is not the same as percentage of loss of earning capacity. There is a distinction between the two.

7. At this stage, let us examine the cases of Pratap Narain Singh Deo [1976 (1) L.L.N 16] (vide supra) and Narendra Samal [1993 Acc C.J 1095] (vide supra), cited on behalf of the appellant. In Pratap Narain Singh Deo case (vide supra), a carpenter while doing some ornament work in a cinema hall fell down and suffered injuries resulting in the amputation of his left arm from the elbow. The Commissioner of Compensation held that the claimant was a carpenter by profession and by loss of his left hand above the elbow, he has been rendered unfit for the work of carpenter as the work of carpentry cannot be done by one hand only. He accordingly, adjudged him to have lost 100 per cent of his earning capacity. The proprietor of the cinema hall challenged the order of the Commissioner in the Supreme Court on the ground, inter alia, that the amputation being from 8″ from tip of acromion and less ??? an 4 ½″ a below tip of olecranon it was a case of partial disablement within the meaning of S. 2(1)(g) of tie Act and it should have been deemed to have resulted in permanent partial disablement of the nature referred in item (3) of Part II of Sch. I of the Act. While rejecting the aforesaid argument of the proprietor, the Supreme Court observed as follows, in Para. 5, at page 18:

“It has not been disputed before us that the injury was of such a nature as to cause permanent disablement to the respondent and the question for consideration is whether the disablement incapacitated the respondent for all works which he was capable of performing at the time of the accident. The Commissioner has examined the question and recorded his finding as follows:

‘The injured workman in this case is carpenter by profession …. By loss of the left hand above the elbow, he has evidently been rendered unfit for the work of carpenter as the work of carpentry cannot be done by one hand only.’

This is obviously a reasonable and correct finding. Counsel for the appellant has not been able to assail it on any ground and it does not require to be corrected in this appeal. There is also no justification for the other argument which has been advanced with reference to item (3) of Part II of Sch. I, because it was not the appellant's case before the Commissioner that amputation of the arm was from 8″ from tip of acromion to less than 4 ½,″ below the tip of olecranon. A new case cannot, therefore, be allowed to be set up on facts which have not been admitted or established.”

The case of Pratap Narain Singh Deo (vide supra), was a scheduled injury coming under Part I of Sch. I and not a case coming under S. 4(1)(c)(ii), Explanation II of the Act.

7A. In Narendra Samal case (vide supra), the Commissioner on assessing the evidence recorded a finding that the injured was cent per cent disabled due to the amputation of his left leg ankle level. He accordingly, calculated the amount of compensation by referring to S.(4)(1)(b) read with Sch. IV of the Act. The said decision of the Commissioner was challenged by the Insurance Company in appeal contending that the disablement suffered by the workman should have been taken as 50 per cent. The maintainability of the appeal was challenged by the claimant on the ground that it involved no substantial question of law. The learned Single Judge after referring to the case of Pratap Narain Singh Deo [1976 (1) L.L.N 16] (vide supra), held that whether the injury suffered by the workman makes him unfit for work he was doing prior to the accident is essentially question of fact. It does not involve any question of law, far less a substantial question of law. The learned Judge accordingly held that “the appeal is not maintainable since it does not satisfy the requirement of the first proviso to Sub-sec.(1) of S. 30.” After holding that the appeal was not maintainable, the learned Judge took the pain of perusing the evidence on record and concurred with the finding of the Commissioner that the quantification of compensation is in accord with the provision in S. 4 read with Sch. IV of the Act.

8. From the aforesaid, it would be clear that Narendra Samal case (vide supra), was a case coming under S. 4(1)(b) read with Sch. IV of the Act. It is, therefore, not an authority to a claim where the quantum of compensation is required to be determined under S. 4(1)(c)(ii), Explanation II of the Act.

9. In the premises stated above, we state that while assessing compensation, the Court has to see whether the earning capacity of the injured has been reduced in every employment and not merely in particular employment in which he was engaged at the time of the accident. That is the reason why S. 4(1)(c)(ii), Explanation JJ of the Act mandates that in case of non-schedule injury the qualified medical practitioner while assessing the loss of earning capacity shall have due regard to the percentage of loss of earning capacity in relation to different injuries specified in Schedule I.

10. In view of what has been stated above, the claim of the appellant that he suffered total disablement and compensation should be determined on the footing that it was a case of 100 per cent loss of earning capacity is not tenable.

11. In the result, there is no merit in this appeal which is accordingly dismissed.

12. S.C Datta, J.:— I agree.