D.N. Sinha, C.J.
1. The facts in this case are shortly as follows.
2. The respondent in this case is one Bhagwati Prosad Sukul. He has made a claim for compensation under the provisions of the Workmen's Compensation Act, 1923 (hereinafter referred to as the said Act), in respect of an accidental Injury suffered by him on 26 September 1963. According to him, it arose oat of, and In the course of, his employment under the respondent. It appears that the respondent was employed by the India Trading Company. It is a disputed question as to whether this company is a partnership concern or whether it belonged solely to the appellant. We need not however, consider that matter in this appeal, as It la not necessary to do so. The said business deals with sale of petrol and petroleum products, and has a petrol pump station In Lower Circular Road, Calcutta, and the respondent had been working there. On 25 September 1963 he took out a Fiat oar belonging to a customer and drove it to the maidan, where he met with an accident. He was taken to the P. G. Hospital and later on to the Sambhunath Pandit Hospital where he stayed for three days, having received injuries in his chest, knee and upper lip. It appears that while he was driving the oar in the maidan, there was a mechanical failure and the oar dashed against some object, with the result that the oar was smashed and the respondent received Injuries. Thereupon he made this claim under the said Act claiming that he had a fracture of two ribs and damage in the right knee and he assessed 35 per cent and 10 per cent respectively on these two headings aggregating to 45 per cent of loss. He stated that his monthly wages amounted to Rs. 70. He claimed a lump-sum payment of Rs. 2,046. The appellant filed a written statement and put forward a number of objections. The main objection taken was that the accident did not arise in the course of and out of the respondent's employment. He was not employed as a driver but only as a serviceman to assist the mechanic, and yet without the knowledge of the proprietor, he took the oar for a trial run, and suffered an injury and at the same time smashed a customer's car for which the proprietors had to spend a substantial sum in repairs. Before the Commissioner for Workmen's Compensation three issues were raised:
(1) Did the alleged accident arise out of and in the course of the applicant's employment ?
(2) Was Rs. 186 paid to applicant as compensation?
(3) Has the applicant sustained any permanent partial disability? If so, to what extent?
3. Evidence was taken of the respondent, the head clerk of Sambhunath Pandit Hospital, one of the partners of the employer-firm, the manager of the petrol pump, its regular mechanic, its assistant manager and two doctors one being Dr. S. K. Niyogi, and the other, Dr. S. M. Bhattacharjee, who deposed, one on each side. According to Dr. S. K. Niyogi, who was called on behalf of the respondent the assessment was 20 per cent and according to Dr. S. M. Bhattacharjee, it was nil. The Commissioner, upon this evidence, assessed the amount of earning capacity at 10 par cent only and directed that the compensation be fixed at Rs. 588, in our opinion, the entire proceedings were conducted In total disregard of the law and the order of the Commissioner cannot be upheld. It will be observed that although three issues were raised, the most important issue as to the diminution of earning capacity has not been raised. In the order of the Commissioner, it has been dealt with as if it is a necessary appendage of issue (3), namely, permanent partial disability. This aspect has been well brought out in a Bench decision of this Court In Kali Das Ghosal v. S. K, Mondal : AIR1957Cal660 , Chakravarti, C.J, pointed out that 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. Section 4(1) of the said Act, provides for the amount of compensation that is to be paid. In Sub-section (1)(c)(ii) It has been laid down that in the case of an injury not specified in Son, I, the amount of compensation shall be 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. In the present case, the injury is not an injury as specified in Sch. I. Therefore, the percentage is proportionate to the loss of earning capacity permanently caused by the injury. The loss of earning capacity is a question of fact. In the present case, however, no issue was raised on the point and the only evidence that has been adduced is that of the two medical practitioners mentioned above. There is no other evidence of the diminution of earning capacity. The respondent himself did not give any evidence of the diminution of his earning capacity. The practice of deciding the diminution of earning: capacity upon medical evidence alone, has been strongly disapproved in at least two Division Bench judgments of the High Court. The first was made as long ago as in February 1936 by Derbyshire, C.J, in Agent, East Indian Railway v. Maurice Cecil Ryan : AIR1937Cal526 . The learned Chief Justice held that in awarding compensation under Section 4C (ii) [S. 4(1)(c)(ii) of the said Act, what has to be estimated is the loss of earning capacity caused by the injury and not the loss of his physical capacity. A surgeon might well estimate the loss of his physical capacity for work, but the loss of earning capacity must be estimated by some other person. This was repeated by Chakravartti, C.J., in Kalidas Ghosal case : AIR1957Cal660 (vide supra). The learned Chief Justice held that the loss of earning capacity or the extent of it is a question of fact. It has got to be determined by taking into account the diminution or destruction of physical capacity, as disclosed by the medical evidence and then It is to be seen to what extent such diminution or destruction could reasonably be taken to have disabled the affected workman from performing the duties which a workman of his class ordinarily performed and from earning the normal remuneration paid for such duties. The utmost a medical witness can give by way of a percentage is to give the percentage of the loss of the normal physical 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 also as decisive on the question of the loss of earning capacity. In the present case, the loss of earning capacity was not dealt with separately at all but was treated as if it was a necessary appendage of the injury or disability. Percentages were talked of, as if the injury was co-extensive with the diminution of earning capacity, and even a separate Issue had not been raised about the diminution of earning capacity.
4. I shall now deal with the findings of the Commissioner. With regard to issue (1) the Commissioner has taken into consideration the evidence and has rightly given importance to the fact that the respondent had a driver's licence, that he was admittedly employed to help a mechanic, and that he could not have taken away the car for trial without the knowledge of the mechanic and the supervisory staff of the petrol pump. Sri Ganguli has taken a point that the matter comes within the purview of Section 3(1)(b)(ii) of the said Act. This is a part of the proviso which provides that the employer shall not be liable where there is wilful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workmen. Sri Ganguli concedes that in this case there is no standing order nor any rules which were framed for that purpose. He also concedes that there was no 'express' order given, but he says that inasmuch as the employers never asked the respondent to take the car out for a trial and he was merely a serviceman who was not employed for the purpose of driving the car, it must be taken that he had committed wilful disobedience of an order, In my opinion, this argument cannot be accepted. The provision of law uses the word 'expressly,' and we cannot Ignore this expression. There must be an order expressly given which has been disobeyed wilfully. It has not been established that the case comes within this proviso. We, therefore, do not see any reason to differ with the conclusion arrived at by the Commissioner on Issue (1). Issue (2) is also a question of fact and we do not see why we should disturb the finding of the Commissioner. Coming to Issue (3), we find that the Issue has been framed wrongly and In any event, the conclusions arrived at by the Commissioner, that the diminution of earning capacity has been established is wrong and cannot be supported. Assuming that permanent partial disability has been proved, there Is no proof of a permanent diminution in the earning capacity or any diminution at all. The evidence upon this point by the doctors cannot be accepted, or in any event, is not sufficient, as held In the Division Bench judgments mentioned above. In an earlier case, I have myself cited the above judgments and pointed out that the Commissioners were totally Ignoring them and were continuing to rely on medical evidence alone, as If the judgments of this Court which are binding on them did not exist. The only result of it is that it must be held that there has been a basic failure to establish a diminution of earning capacity which vitiates the whole findings of the Commissioner. In the absence of a proper finding on diminution of earning capacity, the finding as to damages cannot be supported and must be set aside. In other words, in the absence of proof of this vital factor, the case must fail.
5. That being so, on the grounds aforesaid, this appeal must be allowed and the impugned order of the Additional Commissioner for Workmen's Compensation must be set aside and the case dismissed.
6. There will be no order as to costs. The amount deposited must be refunded.
A.K. Mukherjee, J.
7. I agree.