John Mathew, J.
1. These are appeals filed under Section 30 of the Workmen's Compensation Act, 1923, for short 'the Act', against orders of the Commissioner for Workmen's Compensation (Deputy Labour Commissioner), Kannur, in different cases. When we noticed that a large number of appeals were being filed against the orders of this Commissioner, we directed the office to post them together. On a perusal of the records we prima facie found that in most of these appeals learned Commissioner has erred in fixing and awarding compensation. Accordingly we passed the following order on M.F.A.No. 649 of 1993 on July 13; 1993:
'Notice. Give notice to A.G. also. Issue notice to Shri.G. Sasidhanin Nair, Commissioner for Workmen's Compensation (Deputy Labour Commissioner) Kannur, informing him that he may appear, if he thinks it necessary, at the final hearing of this case and the following similar cases, since prima facie we are of the view that in these cases some strictures against the officer are likely to be made:
1) M.F.A. 607/93 - W.C.C. 124/91 XXX XXX XXXXXX XXX XXX'
On receipt of this order the learned Commissioner entered appearance through Advocate Mr, M. Ramachandran, who ably represented his case.
2. In the nature of the contentions raised by learned counsel appearing for the parties the following general points arise for consideration:
i) Whether in the case of an injury not specified in Schedule I to the Act can the Commissioner fix the percentage of loss of earning capacity without an assessment by a qualified medical practitioner?
ii) Is it proper on the part 6 of the Commissioner to disburse the compensation amount deposited before the expiry of the appeal period?
Point No. (i)
3. Prior to 1984 Amendment, Section 4 of the Act was as follows:
'4. Amount of compensation:- (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:
(a)...........
(b)...........
(c) Where permanent partial disablement results from the injury -
(i)............
(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 permanently caused by the injury.'
(Explanation and remaining Section are omitted).
4. Subsequent to the amendment by Act 22 of 1984 the present provision is as follows:
'4. Amount of 'compensation'.- (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:-
(a)..............
(b)................
(c) Where permanent partial disablement results from the injury:
(i).............
(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: xx xx xxxx xx xx'
From a reading of these two provisions it is clear that after the amendment it is essential that the loss of earning capacity is to be assessed by the qualified medical practitioner.
5. How to estimate the loss of earning capacity was considered by various Courts. Loss of earning capacity is different from loss of physical capacity. Earning capacity is capacity to earn money. (See Agent, East Indian Railway v. Mourice Cecil Rayon, AIR 1937 Cal. 526, and Commissioners for Port of Calcutta v. Prayag Ram, (1987-II-LLJ-302). In some cases any physical defect which may occur as a result of the accident may not reduce the worker's earning capacity or capacity to do work. Incapacity for work is not to be ascertained merely by examining whether the workman is suffering from physical injury. It is to be ascertained by reference to his incapacity to earn wages. If his wage earning capacity is diminished he can be said to be suffering from partial incapacity for work. However, if his wage earning capacity has not been affected, notwithstanding the fact that he may be having some physical injury, he is not entitled to compensation. Therefore, the loss of earning capacity is a question which has to be proved by evidence of physical injury resulting in loss of earning capacity. Only in the case of a Scheduled injury the loss of earning capacity is presumed. Where the injury is not included in the Schedule, the reduction in earning capacity will have to be proved as any other question of fact. It must be proved by evidence which will establish that the workman was unable to earn as much as he did before, as a result of the injury.
6. This Court in U.L Insurance Co. Ltd. v. Sethu Madhavan (1993-I-LLJ-142) held as follows: (pp. 145-146)
'10. A certificate prescribing the nature of the injury and its impact on the organ of the human body involved technical and special knowledge with regard to the same and, therefore, expert opinion as regards that aspect becomes necessary. The nature of the injury, the part where it is inflicted and the effect it produces require expertise and therefore opinion of expert in that regard becomes relevant and necessary. The evaluation of the nature of injury is objective. Then its effect on the functioning of organ is also a matter for the expert ... as the percentage of loss of earning power depends upon the disablement and other factors the same is a question of fact depending upon the nature of work, the age of the workman etc.'
7. We may observe that the most of the decisions referred to by learned counsel for the respondents and learned counsel who represented the Commissioner were dealing with Section 4(c)(ii) of the Act before its amendment in 1984. As observed above, before the amendment the words 'as assessed by the qualified medical practitioner' were not present. Those words were added only by Act 22 of 1984. So much so, the decisions in Sukhai v. Hukumchand Jute Mills Ltd. AIR 1957 Cal. 601, Commissioners for Port of Calcutta v, Prayag Ram, (supra), Kochu Velu v. Purakkattu Joseph 1984 ACJ 630 and Pratap Narain Singh v. Shrinivas (1976-I-LLJ-235), may not directly apply to a case arising under the amended provision. In (1976-I-LLJ- 235) the Supreme Court held that amputation of left hand above elbow will amount to total disablement because the carpenter did not work with one hand. The argument in that case centered round the meaning of the words of total disablement. The importance of the medical certificate or the assessment of loss of earning capacity by the qualified medical practitioner was not in issue in that case. In Kochu Velu v. Purakkattu Joseph, (supra) this Court only considered the meaning of 'permanent disability'. The necessity for assessment of loss of earning capacity by a qualified medical practitioner was not an issue in that case. In U.I. Insurance Co. Ltd v. Sethu Madhavan, (supra), this Court held that in deciding the loss of earning capacity the basic document was the certificate by the qualified medical practitioner (see para 14). Further this Court cautioned that it was for the Commissioner to adjudicate the percentage of loss of earning capacity after taking into consideration the medical certificate as well as other evidence.
8. Whether the Medical Officer should be examined? The Travancore-Cochin High Court in M.S.N. Co. Ltd. v. Mohd. Kunju (1956-I-LLJ-43), held that normally a medical certificate shall not be used without examining the medical officer who issued the certificate unless the parties agreed to be bound by the certificate. The Court also quoted with approval the following observation of Harries C.J. in Panchanan Ghose v. Bhaggu Bari. AIR 1950 Cal. 261:
'The Commissioner also noted that he had seen the workman. The Commissioner is not medical man and in this class of litigation, malingering and false claims are notorious and I am sure that the Commissioner would find it very difficult to say whether an alleged injury to a joint was real or not'.
The Allahabad High Court in Burhwal Sugar Mills Ltd. v. Ramjan, 1982 Lab. I.C. 84, noticed that Section 11(1) of the Act does not prescribe that if a medical certificate has been produced by the workman and the employer does not avail of the right conferred under Sub-section (1) of Section 11, the medical certificate submitted by the employee will be deemed to be correct. The employer is entitled to challenge the medical certificate produced by the workman. The Calcutta High Court in Bengal Coal Co. Ltd. Girimint v. Sew Pujan Harijan, 1983 Lab. I.C. 1285, held that in order to make the medical certificate legally admissible, the Doctors giving the same must come and give evidence in support of the certificates. The Court also held as follows:
' 16..... But in the case of Panchanan Ghose v. Bhaggu Ban, AIR 1950 Cal. 261 it is observed that it is not proper for the Commissioner to base his findings upon his own observation of the injured person. Further, in the absence of medical evidence the Commissioner is not in a position to decide the percentage of the physical disability of the injured workman'
The Act nowhere excludes the operation of the Evidence Act in claims to be decided under the Act. Under Section 25 of the Act the Commissioner is to make a brief memorandum of the substance of the evidence of every witness as the examination of the witness proceeds. This only shows that there is some difference between the normal procedure of examination of witness contemplated by the Evidence Act. But it is highly risky to leave to the individual Commissioners to adopt procedures to their liking. It is much safer to adopt the provisions of the Evidence Act. Even if the Evidence Act as such is not made applicable the general principles of the Act would apply to the proceedings before the Commissioner. Medical certificate is not a document which can be admitted in evidence without proof under any of the provisions of the Evidence Act or under any of the provisions of the Workmen's Compensation Act. Therefore the certificate will have to be proved in one of the modes allowed by the Evidence Act.
9. Whether the Commissioner can personally examine the disabled workman to decide the percentage of loss of earning capacity is a question which has considerable importance in workmen's compensation claims. The Commissioner is entitled to examine the workman in a particular case or a particular injury if he feels it is necessary for the purpose of settling the amount as he is enjoined to do under Section 19 of the Act. However, this power should be exercised with circumspection. The Commissioner should always keep in mind that after the 1984 Amendment the power to assess the loss of earning capacity in the 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 4(c)(ii) 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 the determination of the Courts. (See T. Venkata Reddy v. State of A.P., AIR 1985 SC 724). 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 work man, there may not be any doubt that this is not the only factor. Therefore we cannot hoid 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.
10. Therefore we hold that primarily the loss of earning capacity is to be assessed by the qualified medical practitioner. Normally he should be examined to prove the certificates. However in case there are special reasons the Commissioner may accept other evidence to prove the medical certificate. Normally the Commissioner shall not decide the loss of earning capacity without a medical certificate of a qualified medical practitioner assessing the loss of earning capacity except in cases where there are special reasons to dispense with medical certificate. However it goes without saying that the probative value of the medical certificate has to be adjudged by the Commissioner taking into consideration the other evidence in the proceedings. We respectfully adopt the reasoning of this Court in V.I, Insurance Co. Lid. v. Sethu Madhavan (supra).
11. Point No. (ii): Section 30 of the Act confers on an aggrieved party the right to challenge the order of the Workmen's Compensation Commissioner before the High Court. The period of limitation for such appeal is 60 days. Section 5 of the Limitation Act is made applicable to the appeals under Section 30 of the Act. Under the 3rd proviso to Section 30 of the Act, no appeal by an employer shall lie unless the memorandum of appeal is accompanied by the certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against. Thus it is mandatory that the employer should deposit the compensation amount before the appeal can be entertained. In case within the appeal period of 60 days the Commissioner disburses the compensation to the workman the appeal itself may become infructuous since in most of the cases it may not be possible to get back the amount withdrawn by the workman. There is no provision in the Act empowering recovery of the amount payable by the employer. Therefore the disbursal of the compensation amount should be done only after the expiry of the period of 60 days. Under Section 29(2) of the Limitation Act 1963 the appellant is entitled to the exclusion of time for obtaining a certified copy of the award. In these cases the. Commissioner forwarded the copies of the award to the parties. Thus the affected parties will get sixty days from the date of receipt of such copy to file appeal. In special cases the Commissioner may order disbursal of the whole or part of the compensation amount by order on a petition to be filed by the workman after giving notice to the employer and hearing the employer's objections. Even after the period of 60 days if the employer has informed the Commissioner about the filing of an appeal or the intention to file an appeal the compensation amount may be disbursed only after hearing the employer also.
12. Now we will deal with individual appeals:
*(Paragraphs 12 to 38 omitted)
39. On a review of these various cases we have to observe that the learned Commissioner has awarded exorbitant amounts as compensation, often more than the claim amount, without supporting evidence. We cannot accept the contention of the learned counsel appearing for him that these awards were passed on a misunderstanding of the reported decisions. In most of the these cases the Commissioner has observed that the assessment was made on the basis of personal satisfaction of the Commissioner. M.F.A. No. 580 of 1993 is an example to show that the personal satisfaction of the Commissioner can be mistaken. In that case the Commissioner observed that the petitioner came to the Court with the help of crutches. But the discharge summary specifically mentioned that he was walking without crutches. So also in two of these cases when the petitioners were examined by Medical Board as per the order of this Court, we found that there was no justification for assessing the percentage of disability at the high figure estimated by the Commissioner. In M.F.A. No. 608 of 1993 the Medical Board assessed the disability as 5% whereas the Commissioner fixed his disability at 50%. In M.F.A. No. 750 of 1993 the Medical Board assessed that there is no disability as against 75% disability fixed by the Commissioner. We also find that in some of these cases learned Commissioner disbursed the compensation amount before the expiry of the appeal period and that also in spite of the filing of petitions not to disburse the amount since the appellants are intending to file appeal. In some case there, was a request to send the claimant for medical examination, the Commissioner refused to send him for medical examination. We bring all these aspects to the notice of the Government in order to take appropriate remedial actions so that these errors or omissions may not happen in future.
40. Since we are setting aside awards passed by the Commissioner all the claimants who have withdrawn the compensation amount should re-deposit the amount with the Commissioner within one month from the date of his judgment. In case they are not depositing the amount the Commissioner should take steps to recover the amount from the claimants.
41. Registrar will forward a copy of this judgment to the Chief Secretary, State of Kerala, for appropriate action.