JUDGMENT
S.C. Pandey, J.
1. This appeal under Section 30 of the Workmen’s Compensation Act, 1923 (henceforth ‘the Act’ for short) is directed against the order dated 18.1.1993, passed by the Commissioner for Workmen’s Compensation, Shahdol, in W.C. Case No. 22 of 1989.
2. The facts of this case are as follows: The respondent No. 1 was working as a Switch Board Attendant in Birsinghpur Colliery of South Eastern Coalfields Ltd. On 27.5.1987, the respondent No. 1 was trying to remove an electric pole from one place to another. During the course of his employment, he suffered an injury on account of electric fire due to the electric current in the wire falling short. He, therefore, claimed compensation to the extent of Rs. 50,000/- on the ground that he suffered an injury on his left hand and also on his body.
3. The appellants did not dispute that an accident occurred on 27.5.1987. It was claimed that respondent No. 1 suffered only minor injuries, but he did not suffer any disablement on account of the injury and, therefore, claimed that the application for compensation should be dismissed.
4. The Commissioner for Workmen’s Compensation has awarded the claim of respondent No. 1 partially to the extent of Rs. 17,849/- with interest at the rate of 12 per cent if the amount is not paid within one month from the award. The finding of the Commissioner for Workmen’s Compensation is to the effect that the left hand of the respondent No. 1 was completely disabled and, therefore, his working capacity was reduced by 10 per cent.
5. The learned Counsel for the appellants argued that according to the report of the Medical Board, there was a lacerated well healed wound having a scar which restricted the movement of left wrist. There was injury also on the left thumb. This injury was based on the report given by the Medical Board of the employer. On the other hand, the Commissioner for Workmen’s Compensation has found that the injury was on the left hand and as a result thereof, there was a disability of the left elbow and the fingers of the left hand. This disability was to the extent of 10 per cent. In doing so, the Commissioner for Workmen’s Compensation has relied on Exh. P-1, which was given by the Board constituted by the District Hospital, Shahdol.
6. It has been argued before this Court that this injury is not covered by any of the Schedules of ‘the Act’ and, therefore, it is a non-scheduled injury. The Commissioner for Workmen’s Compensation could not have awarded compensation merely on the basis of physical disability of the respondent No. 1 as per Exh. P-1. The Commissioner for Workmen’s Compensation was bound to judge the disability, under the facts and circumstances of the case, on the basis of loss of earning capacity of the worker. According to the learned Counsel for the appellants, there was no loss of working capacity as the respondent No. 1 was employed in the same capacity as a Switch Board Attendant and, therefore, the Commissioner for Workmen’s Compensation erred in granting compensation. The learned Counsel for the appellants made it further clear that the appellants have no intention not to pay the amount of compensation already granted to respondent No. 1. However, the learned Counsel wants to challenge this order on principle aforesaid.
7. The learned Counsel for respondent No. 1, on the other hand, supported the order of the Commissioner for Workmen’s Compensation.
8. Having heard the counsel for the parties, this Court is of the opinion that in view of Section 2(1) of ‘the Act’ and the injury, whether it be partial disablement or total disablement, firstly, it has to be noticed whether it is covered by Schedule I of ‘the Act’. If it is not covered by any of the parts of the Schedule, then the nature of the injury has to be judged on the capacity of the workman to perform the work he was doing. Where a workman suffers permanent partial disablement, he is governed by Section 4(1)(c) of ‘the Act’. So far as any injury which is not covered by Schedule I of ‘the Act’, a workman shall be entitled to such percentage of the compensation payable in case of permanent total disablement as is proportionate to the percentage of the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury. Therefore, the true basis for determination of compensation is not loss of physical capacity, but the earning capacity of the workman. In this particular case, there is no loss of earning capacity of the workman and the workman was employed as Switch Board Attendant and has not been given any other alternative job. In view of this matter, it cannot be said that the workman had lost his capacity for working in any manner. He is performing the same operation which he used to perform. In such a situation, the Commissioner for Workmen’s Compensation should not have held that there was loss of capacity for working merely because the doctors had opined so. This court took the similar view in a case in Shankarlal v. General Manager, Central Railway, Bombay V.T. 1990 ACJ 1028 (MP). S.K. Dubey, J. of this Court held in this case as follows:
Further, a surgeon or a doctor can estimate only the loss of physical capacity for work but the opinion of such expert witness, which is admissible, cannot be the only consideration for determining the loss of earning capacity. The loss of earning capacity is to be estimated naturally by some other person, and in the case of master and servant, the master, i.e., the employer, who has the opportunity to see the workman’s work both before and after the accident.
9. In view of this matter, the conclusion of the Workmen’s Compensation Commissioner appears to be wrong. However, the learned Counsel for the appellants says that he does not want to recover compensation already awarded to respondent No. 1. For this reason, it is not necessary to set aside the award granted by the Commissioner for Workmen’s Compensation.
10. The appeal is, therefore, allowed subject to the undertaking given by the counsel for the appellants.