ORDER
R.C. Gandhi, J.
1. Both these appeals have been preferred against the order dated April 13, 1995 passed by the Commissioner, Workmen’s Compensation Act, 1923 (Assistant Labour Commissioner, Doda), whereby he has allowed the applications of the claimants, Manzoor Ahmad and Mohd. Shafi awarding compensation of Rs. 45,000/-(including costs Rs. 200/-) and Rs. 35,500/-(including costs of Rs. 200/-) determining the wages at Rs. 30/-to Rs. 35/-per day, their age 24 years and 20 years and loss of earning capacity 40% and 50% respectively.
2. The impugned orders have been challenged on the ground that the injury caused is a vis-major and the employer cannot be held liable for compensation. The loss of earning capacity determined is imaginary and not based upon any legal evidence. The claimants were not in the employment of the appellant either through contract or directly employed by the respondents nor they have received any injury.
3. I have heard the learned counsel for the
parties and perused the record.
4. While dealing with the submission of the learned counsel for the appellants, it is seen from the record that the accident is caused during the employment of the respondent on September 25, 1988 while working on Pathroo in Compartment No. 63, Hanja Jungle, due to sudden breakage and overturning of Pathroo, the respondent, Manzoor Ahmad suffered serious head injury, injuries on his left arm and right leg and other multiple injuries all over the body. The respondent, Mohd. Shafi received on his right leg and arm and other multiple injures all over his body. The finding recorded on the basis
of evidence shows that the accident caused is not
an act of a vis-major. This fact is proved by the
evidence of Mate Sirajuddin, who has deposed
that both the claimants were working through
him in the Compartment and met with an accident on September 25, 1988. There is no rebuttal evidence to this fact led by the appellants.
The contention of the appellants is, therefore,
rejected.
5. The second contention is that the loss of earning capacity determined by the authority is not based on legal evidence. The doctor has been examined who has opined with regard to the disability in earning capacity, though the evidence of the doctor is not conclusive factor for determining the loss of earning capacity, yet the certificate showing percentage of disability need to be considered but not as a piece of evidence for grading the injured to the extent of percentage of loss of earning capacity. The loss of earning capacity is a question of fact, which need to be provided by evidence. Learned counsel in support of his contention has cited AIR 1957 Cal 660 (Kali Dass Ghosal v. S.K. Mondal), wherein it is held at page 662:
“The Workmen’s Compensation Act, 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 the 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.
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The utmost a medical witness can give by way of a percentage is to give the percentage of the loss of the normal physcial capacity or power. The loss of earning capacity is not necessarily co-extensive with the loss of physical capacity and certainly the former does not prove the latter. It is therefore altogether wrong in taking the evidence of the medical witness not only as relevant but as decisive on the question of the loss of earning capacity.”
6. There is no evidence on record that in what manner and to what extent the physical disability hampers the earning capacity of the petitioners. The statement of the doctor, medical witness, is only relevant evidence, but not decisive and conclusive with regard to the loss of earning capacity. The finding of loss of earning capacity based on the evidence of percentage of disability being not relevant are not sustainable. The loss of earning capacity has relevance with the physical disability to earn, which is a matter of fact and this fact has not been established on record.
7. Under the circumstances of the case to deliver justice to the claimants, it is necessary to provide an opportunity to the parties to adduce evidence and establish by evidence the loss of earning capacity, if any. The appeals are allowed and the orders under appeal are set aside. The cases are remanded back to the authority with a direction that he should rehear the case in accordance with law and in the light of the observations made in this judgment providing an opportunity to the parties to adduce evidence on the question of fact of loss of earning capacity. The authority should decide the matter expeditiously. Record be sent back forthwith.