Sabyasachi Mukharji, J.
1. This is an appeal under Section 30 of the Workmen's Compensation Act, 1923 from an order of the Additional Commissioner for Workmen's Compensation dated 12th February, 1971.
2. The respondent filed a claim for compensation on the allegation that while working in the appellant's colliery on 1st March, 1968, he suffered injuries to his left foot and toes causing permanent partial disablement entailing loss of earning capacity to the extent of 25%. It has to be mentioned that orignially the claim was filed on 20th March, 1968, claiming loss of earning capacity to the extent of 10%. The amendment petition was filed on the 5th October, 1969, and from the records produced before us it appears that a copy of the said amendment petition was handed over to the advocate for the appellant on 9th October, 1969. On the 9th October, 1 69, the amendment petition was taken up for consideration by the learned Commissioner and the prayer was allowed and time was given to the appellant to file additional written statement.
3. Before we deal with the merits of this case, one of the points that was urged in this appeal was that the Commissioner was in error in allowing this amendment petition, It appears that under Section 10 of the Workmen's Compensation Act the claim has to be lodged within two years from the date of the accident, The application for amendment was made within Me aforesaid time Counsel for the appellant, however, contended that there was no specific power of granting amendment by the Commissioner for Work-men's Compensation. He drew our attention to Central Rules, namely, Workmen's Compensation Rules, 1924, specially Rule 41 and it was urged that the provisions of the Code of Civil Procedure in so far as these dealt with the power of the Courts to allow amendment were not the subject-matter of the said Rule 41 of the Workmen's Compensation Rules, 1924. Under Section 19 of the Workmen's Compensation Act it is provided that when the question arises as to the liability of a person to pay any person compensation including any question as to whether the person injured in or is not a workman or as to the amount or duration of compensation including any question as to the nature or extent of disablement, such a question, in default of agreement, will be settled by the Workmen's Compensation Commissioner. Therefore, under Section 19 the Commissioner has the obligation to settle if a dispute arises or a question arises in respect of the aforesaid matters. Section 23 gives the Commissioner the power of a civil Court under the Code of Civil Procedure for the purpose of taking evidence and compelling attendance of witness and evidence. There is no specific section under the Act dealing with the other powers of the Commissioner under the Code of Civil Procedure but Section 34 of the Act empowers the Central Government to make rules to implement the provisions of the Act. As mentioned hereinbefore, under the Workmen's Compensation Act, 1923, rules have been framed and our attention was drawn to Rule 41. The said Rule 41 does not specifically deal with the question of amendment. Under Section 19 of the Act the Commissioner has to settle the claim, if the question cannot be settled by agreement. Therefore, it must be presumed that in furtherance of the powers of setting the Commissioner should have all the incidental and ancillary powers unless the statute provides to the contrary In this connection reliance may be placed on Halsbury's Laws of England, Vol. 36 page 436 Even though, therefore, the Commissioner has power to allow an amendment within the period of limitation as was done in this case, the said power must be exercised in consonance with the principles of justice: and should be exercised by giving such reasonable opportunity to the opposite parties as are necessary in a particular case. In this case, counsel for the appellant contended that no date had been fixed by the learned Commissioner for adjudication of the application for amendment. That is perhaps so, as it appears from the records. It appears, however, that the copy of the application of the proposed amendment was served and no specific opportunity was sought by the appellant to oppose the said application. In the additional written statement filed by the appellant in answer to the amendment claim no point was taken that the amendment was allowed without giving reasonable opportunity to the appellant. Therefore, though strictly speaking there was some irregularity in allowing the application for amendment in this case no injustice has been caused to the appellant by the procedure followed. But the Workmen's Compensation Commissioner should try to ensure as the situation of the case demands to give such opportunities to the parties as may be necessary to make such representation against any proposed amendment.
4. From the judgment of the learned Commissioner for Workmen's Compensation it appears that only one issue was framed for decision, namely:
Has the applicant sustained any permanent partial disability involving loss of earning capacity? If so, to what extent ?
The learned Commissioner records that the only point contended by the appellant was that the respondent had not suffered any permanent disablement as a result of the minor injuries suffered by him at his left foot only. The respondent belonged to the wage group between Rs. 150 and 200 per month. On behalf of the respondent he himself gave evidence. He stated in his evidence that he had sustained injuries to his left foot and toes and felt much pain and was treated for six months and was under plaster. The respondent has further stated that he was unable to work then. He was cross-examined on behalf of the appellant. It was suggested that he had resumed job on 21st May, 1968, and thereafter had left his job. The respondent denied the said suggestion. It was further suggested to him that the appellant did not discharge him. The respondent also denied the said suggestion. On behalf of the respondent one Dr. D. K. Roy Choudhury gave evidence. His evidence was the medical evidence on behalf of the respondent and he stated that he had examined the applicant and he proved the certificate which was given by him as also the X-ray plate which was marked as Ext. 2. In cross-examination he admitted that he had not seen any medical papers and further stated that the respondent could walk with great difficulty and by limping. According to the said 'doctor, the respondent had suffered physical disability which he assessed at 25%. The said doctor denied that the said assessment was high.
5. On behalf of the appellant the only evidence tendered was that of Dr. S.M. Bhattacharjee who stated that he had examined the respondent on the 16th November, 1968. He also proved the certificate which was given by him as also the X-ray plate taken by him. According to the said doctor, the physical disablement was to the extent of 10%. He also, on the other hand, denied that his assessment was low. Apart from the said medical evidence on behalf of the appellant, there was no further evidence adduced on behalf of the appellant. The learned Commissioner took into consideration the said two certificates and the reports of the physical disablement by the two doctors which were, as mentioned before, at variance. He also took into consideration the X-ray reports. The learned Commissioner for Workmen's Compensation recorded that he had examined the respondent in Court personally and he further stated that he was satisfied that the disablement of the respondent was of a substantial nature. Upon this the learned Commissioner had come to the conclusion that the respondent had suffered loss of earning capacity which he assessed at 20% and accordingly awarded Rs. 1,960 by way of compensation,
6. Counsel for the appellant contended before us that the finding of loss of earning capacity by the learned Commissioner was perverse. It was further urged that there was no determination with any amount of precision as to the actual physical injury or disablement suffered by the respondent. It was contended further that the learned Commissioner was in error in examining the respondent in Court personally and taking into consideration his personal assessment of the condition of the respondent. It was pointed out that the hearing of the matter took place in 1971 while the incident or accident occured as early as in March, 1968. Therefore, it was submitted that there was no investigation as to whether the respondent was in the then condition due to the accident which he had suffered on the 1st March, 1968 or had suffered any other injury in between that time. It has, however, to be mentioned that there was no suggestion in the cross-examination of the respondent that subsequent to his accident which was a subject-matter of adjudication in this case the respondent had suffered further injuries or other things happened to him which had caused further disablement to his health and ability. The principles upon which the loss of earning capacity under Section 4(1)(c)(ii) of the Workmen's Compensation Act, 1923, have to be determined have been discussed in several decisions. It is necessary to find out whether there has been loss of earning capacity and secondly, whether such loss has been caused permanently by disablement which is of a permanent nature as the result of the injury suffered during employment. The several decisions were recently considered by my Lord, the Chief Justice, in Ratnakar Shipping Co. Ltd. v. Nikhll Kumar Base appeal from Original Order Nos. 402 of 1969. After referring to the various decisions, some of which were again cited before us, the following principles were laid down in the said decision:
1. Loss of physical capacity is not co-extensive with loss of earning capacity,
2. loss of earning is not co-extensive with loss of physical capacity and
3. There may be cases where even the loss of physical capacity may be of such nature as to make it abundantly clear that there has been large, if not complete loss of earning capacity even though there has been no immediate reduction in wages.
7. It has to be reiterated that medical evidence by itself is not conclusive or decisive factor in the loss of earning capacity. Medical evidence can only establish the nature of the disablement or the physical injury. But to what extent that physical disablement causes loss of earning capacity is not for medical evidence to state. It is for the Commissioner for Workmen's Compensation to settle in case of a dispute between the parties and such settlement can only take place upon the basis that there has been a loss of earning capacity caused by the said injury and secondly, the estimate that should be made of such loss of earning capacity should be proportionate to the loss of earning capacity caused by the injury. In the instant case, there was evidence that there was injury. There was medical evidence on both sides as to the extent of the injury. There were certificates by the two doctors and two respective X-ray plates. There was further the evidence of the respondent himself that when he went to resume work after six months, he could not join the work because the appellant stated that he would not be able to work. This evidence of the respondent remains uncontradicted. There is no evidence on the side of the appellant to rebut this evidence. Therefore, it has to be presumed that if the evidence had been tendered on behalf of the appellant, such evidence would not have been of any help to the appellant. Counsel for the appellant contended that there was no evidence that the respondent tried to secure job or employment elsewhere and was unable to do so as a result of the injury suffered by him. It is true that there is no such evidence. If there was such an evidence, that would have helped the authorities and would have added to the evidence already given. But there is evidence that the employer refused to employ the employee on the ground of the injury suffered by him and further more that he was unable to work at the present moment. If it was the case of the appellant that the respondent was able to seek other work or there was a market for a man of his type with the injury he had suffered, that suggestion was not made to the respondent. Having regard, therefore, to the evidence in this case it cannot be said that the learned Commissioner acted without evidence in coming to an estimate of the loss of earning capacity. What weight should be given and what value should be given to a particular evidence is a matter for a Court of fact and if a Court of fact puts greater weight on a certain piece of evidence, such a conclusion cannot be said to raise a substantial question of law upon which an appeal can be entertained under Section 30 of the Workmen's Compensation Act, 1923. It might have been otherwise if the learned Commissioner had acted without any evidence of loss of earning capacity and had relied solely on medical evidence as was done in some of the cases referred before us. But the facts of this case are different. So far as the criticism of the learned Counsel for the appellant is concerned that the Commissioner should not have examined the workman personally, it cannot be said that the Commissioner was not entitled to examine the workman in a particular case or a particular injury if he feels necessary for the purpose of settling the amount as he is enjoined to do under Section 19 of the Act. It is, however, of course, necessary to examine such person with caution. In this case, as mentioned hereinbefore, there was no suggestion that the workman concerned had suffered any further injury in between the time he had suffered the accident which was the subject-matter of adjudication and the time when the case came up for hearing before the learned Commissioner. The learned Commissioner, has, however, observed that the respondent, is out of employment completely. There is some substance in the criticism of the counsel for the appellant that there is no evidence to substantiate this. There is, however, evidence that the respondent was unable to work but there is no evidence that the respondent was completely out of employment. Even though this observation was unwarranted by the evidence on record there was other evidence upon which the learned Commissioner could come to the conclusion that there was a loss of earning capacity and his assessment having regard to the evidence given by the workman cannot be considered to be either excessive or based on no evidence.
8. Counsel for the respondent drew our attention to a decision of the Kerala High Court in N. P. Lalan v. F.A. John, 1972-II L.L.J. 273 and contended that even if the contentions of the appellant were correct, in this case these did not raise substantial questions of law and as such an appeal under Section 30 of the Workmen's Compensation Act, 1923, did not lie to this Court. In the view we have taken, it is unnecessary for us to decide this controversy.
9. For the reasons mentioned hereinbefore, this appeal fails and is dismissed. There will be no order as to costs.
Sankar Prasad Mitra, C.J.
10. I agree.