Judgment:
A. Pasayat, J.
1. In the appeal under Section 30 of the Workmen's Compensation Act, 1923 (hereinafter referred to as the 'Act') correctness of the order passed by the Additional District Magistrate and Commissioner, Workmen's Compensation, Mayurbhanj (in short, the 'Commissioner') is under challenge.
2. Dhrubendra Ray (hereinafter referred to as the 'claimant') lodged a claim in Form F in terms of Rule 20 of the Workmen's Compensation Rules, 1924 (in short, the 'Rules') on the following premises.
He was working as a driver of a vehicle bearing Registration No. OFM 1045 which was kept stationery near a hotel at Khuntuni at about 3 a.m. on August 4, 1988 when another trunk dashed against it, whereby he sustained serious mjuries which were very serious in nature as would be evident from the fact that there was fracture of ieft hand wrist and of the back bone. On account of the accident he was disabled which affected his earning capacity. He was getting monthly wages of Rs. 1200/- per month from Biswanath Agarwal (hereinafter referred to as the 'employer '). However, employer filed objection to the claim taking the stand that claimant was not getting Rs. 1200/- but was getting Rs. 1000/- per month and he was employed on a temporary basis. The claim that there was disablement which affected normal functioning was disputed on the ground that the claimant was fit enough to discharge his normal duties and was working as driver under another person. The vehicle was stated to be insured with the New India Assurance Company Ltd. (in short, the 'insurer') and therefore, compensation, if any, was to be paid by way of indemnification by the Insurer.
3. The Commissioner framed eight issues of which issue Nos. 5,6 and 7 which are relevant for the purpose of this appeal, read as follows:
' XXX XXX XXX5. What is the percentage of disability sustained by the petitioner due to accident?
6. What is the amount of compensation, the petitioner is entitled to from opp. party No. 1?
7. Whether the opp. party No. 2 is liable to pay compensation payable to the opp. party No.l being the insurer at the relevant time?'
In answering issue Nos. 5 and 6, it was observed that the extent of claimant's permanent disability was 50%, and compensation amount was payable as per provisions of Clause(c) of Sub-section(1) of Section 4 of the Act. In answering issue No.7 along with another issue, it was held that the entitlement of the claimant was Rs. 53,870/-. The figure was arrived at by taking monthly wages to be Rs. 1000/- relevant factor at 215.48 and permanent disablement to be 50%.
4. Claim of insurer in this appeal is that finding regarding permanent disablement may be a factor while determining the question of loss of earning capacity, but in the absence of any definite material in that regard, that factor alone was not sufficient to make quantification as done by the Commissioner. The statements relating to factum of accident are disputed. Learned counsel for the claimant, on the other hand, urged that percentage of disability is the determinative factor while adjudicating question of loss of earning capacity, and therefore, conclusions of the Commissioner are irreversible.
5. So far as the conclusions about the factum of accident are concerned, they are essentially based on certain facts situation highlighted by the claimant. I do not find them to be unreasonable or perverse so as to attract any interference, and in any event, no question of law is involved so far as that aspect is concerned. An appeal under Section 30 of the Act is restricted to cases where a substantial question of law is involved, as stipulated in first proviso to Sub-section (1) of Section 30 of the Act. The Commissioner's con-elusions that the vehicle was involved in an accident and the claimant sustained injuries in the accident which arose out of his employment are open to be interfered in this appeal.
6. For resolution of dispute, it is relevant to refer to Section 4(1)(c) of the Act so far it is relevant for disposal of the appeal.
'4. Amount of compensation - (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely;
XX XX XX(c) where permanent partial disablement results from the injury--
(i) in the case of an injury specified in Part II of Schedule I, such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury, and
(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;'
Explanation-II--In assessing the loss of earning capacity for the purpose of Sub-section-Clause (ii), the qualified medical practitioner shall have due regard to the percentage of loss of earning capacity in relation to different injuries specified in Schedule I;XX XX XX
It is not in dispute that injuries claimed to have been sustained in the case at hand, are not specified in Schedule-I of the Act. Therefore, by applying percentage of compensation payable in the case of permanent disablement as is proportionate to the loss of earning capacity, permanently caused by injury and as assessed by the qualified medical practitioner, quantum of entitlement is to be worked out. Qualified medical practitioner whose evidence is pressed into service by the parties has to work out loss of earning capacity. Mere quantification of the percentage of permanent disablement without indication of loss of earning capacity aspect would not meet the requirements of law. This is apparent from Explanation-II which postulates that in assessing loss of earning capacity for the purpose of Sub-Clause (ii) of Clause (c) of sub section (1) of Section 4, qualified medical practitioner shall have due regard to the percentage of loss of earning capacity in relation to different injuries specified in Schedule-I. No doctor was examined in this case. Reliance was placed on a certificate issued by a doctor who indicated himself to be on Orthopaedic Specialist of District Headquaterers Hospital, Baripada. The certificate contained following recital.
'Extent of his permanent disability is 50% (fifty percent).'
From this the Commissioner inferred and concluded that the loss of earning capacity was 50%. The conclusion is indefensible. As observed by this Court in New India Assurance Company Ltd. v. Kalandi Moharana and Anr., (1992) (I) T.A.C. 648 a qualified medical practitioner has to take note of duties a workman, claiming compensation under the Act is required to perform in course of his employment and certify percentage of loss of earning capacity. The certificate issued by the Doctor on which reliance was placed by the Commissioner does not breath a word about the nature of the job which was being undertaken by the claimant. The Commissioner has also not considered the stand of the employer that claimant had not in fact suffered permanent or partial disability and was fit enough to discharge his normal duties and was working as a driver under another employer. Consequentially award cannot be maintained and matter has to be determined afresh by the Commissioner. To avoid unnecessary delay, the parties are directed to appear before the Commissioner on November 10, 1993, who shall fix up a date for proceeding further. There is no Cross Appeal by the claimant. The award to be made should not normally be for an amount beyond what has been quantified in the impugned award. But the quantum is statutorily fixed, and if the Commissioner ceases to hold that the claimant is entitled to more than what was awarded in the impugned award, there shall be no impediment on his quantifying it. The Commissioner shall give a direction that not less than 80% of the Award including interest, if any, in case the quantum is less than Rs.50,000/-, between 80% to 90% in case it exceeds Rs.50,000/-upto Rs. 1 lakh and between 90% to 95% in case it exceeds Rs. 1 lakh shall be kept in the fixed deposit for a period of not less than three years and the claimant shall not be permitted to withdraw any money against the fixed deposit, without order of the Commissioner. If the claimant wants to withdraw any money against the deposit, he has to indicate the reasons, on consideration of which the Commissioner may, in appropriate cases, grant permission for withdrawal to the extent of actual requirement. The desirability for adoption of such modalities has been elaborately highlighted by the Apex Court in National Insurance Co. Ltd, v. Swarnalata Das and Ors., 1993 A.CJ.748.
7. The Misc. appeal is disposed of accordingly.
8. A copy of the judgment be sent to the State Government in the Labour and Employment Department. It is directed that the said Department shall notify all Commissioners functioning in the State under the Act to fix up the quantum and mode of fixed deposits in all cases keeping in view the direction contained in this judgment in that regard.