Sankar Prasad Mitra, C.J.
1. This is an appeal from a judgment of the Workmen's Compensation Commissioner under Section 30 of the Workmen's Compensation Act, 1923.
2. The respondent was an employee of the appellant and had suffered physical injuries by reason of an accident in course of his employment on the 28th December. 1963, His wages were between Rs. 100 and Rs. 150 per month. The Commissioner has found that he sustained a permanent partial disability and assessed his loss of earning capacity to the extent of 10 per cent. The Commissioner made an award of compensation for Rs. 980. He directed payment of the balance, of Rs. 550 with corresponding costs and hearing fee assessed at Rs. 10.
The respondent did not go to the witness box to adduce any evidence but there was medical evidence both by the employee's doctor as well as the employer's doctor.
The accident occurred, as we have said, on the 28th December, 1963. It is admitted that the respondent resumed his duties on the 18th June, 1964 and he filed the case for compensation on the 19th October, 1965.
3. Dr. S.K. Neogi gave medical evidence on behalf of the workman. He examined the respondent on the 13th June, 1966. He stated as follows;
Very much tender and pigmented adherent scar on the medical aspect of the left ankle, heel, sole and foot with grafting from the left thigh with contraction of the scar and partially rigid ankle joint and wasting of the foot.
I assess the disability, permanent and partial at 20 p.c.
In cross-elimination Dr. Neogi said:
There is nerve involvement of the coetaneous nerve. No less of sensation.
My assessment is for the scar, i.e. based on the scar only.
On behalf of the appellant Dr. S.M. Bhattacharya was examined. He had seen the patient on the 12th September, 1966. His evidence is :
There is one irregular scar mark of 2 inches by 2 inches on the medical side of the left foot resulting from the skin-grafting of the lacerated injury. There is no evidence of any injury to the nerves and vessels.
Movements of the left foot are normal, X-ray dated 13.6.66 shows no evidence of any bony injury to the left foot.
Loss of working capacity is nil.
Very much tender means very much sensitive and painful. We do not expect a man with a very tender scar on his leg would walk normally.
Dr. Bhattacharya to a certain extent was shaken in cross examination. His evidence in cross-examination is:
He can walk very slowly in a limping gait.
The foot is not normal due to the presence of the scar but there is no disability in the matter of movement of the foot.
The scar is not tender because it is not inflamed, not connected with the underlying tissues nor any affection of the joints.
4. On the evidence on record, Mr. Sanyal appearing for the appellant has urged before us that in the absence of the deposition of the respondent or other evidence supporting him, the Commissioner should not have come to any conclusion as to loss of earning capacity. In other words, the finding of the Commissioner is based on no evidence at all. Section 4(1)(c)(ii) of the Workmen's Compensation Act, 192) provides that subject to the provisions of the Act the amount of compensation shall be where permanent partial disablement results from the injury-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.
5. In cases of injuries specified in the Schedule there is no difficulty inasmuch as the statute itself has fixed the percentage of loss of earning capacity. When an injury is not specified in Schedule I, as in the present case, the loss of earning capacity has to be assessed by the Commissioner on the basis of evidence on record. The leading case on this subject is an illuminating judgment of Chief Justice P.B. Chakravartti sitting with Mr. Justice K.C. Das Gupta in Kali Das Ghosal v. S.K. Mondal : AIR1957Cal660 . We intend to set out fully what the learned Chief Justice said in paragraph 11 of this judgment at pages 662 to 663. His Lordship observed as follows:
It seems to have become a habit in the Court of the Commissioner of the Workmen's Compensation to take medical evidence as to the extent of the loss of earning capacity or, if I may express it otherwise, the percentage of the disability. I am entirely unable to understand how any such practice could have been countenanced and allowed to grow and how it could ever be thought that a medical witness would be competent to speak to the extent of the loss of earning capacity which had been occasioned by the effect of the physical injury. A medical witness can properly speak to the nature of the injuries suffer by a workman and the physiologi1 cal or organic effect of such injury on the bodily system As to such matters he is undoubtedly a competent witness The Workmen's Compensation Act, however, 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 concern, 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 fore medical witness to say. Medical evidence is opinion evidence and it is only with regard to the physical aspect of the adjures that the opinion of a 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. A doctor can say from his special knowledge what injuries the physical system of the workman has suffered by reason of the accident and what effect, temporary or permanent, those injuries have left on the system or to what extent the normal physical powers of a man of the age and physique of the affected workman could reasonably be said to have been reduced. He can go that far but at that point he must stop. After the medical evidence as to the nature of and measure of the physical infirmity has been given, the substance of that evidence is to be taken over and applied in the assessment of the loss of earning capacity as one of the factors and perhaps that principal factor. But 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 destruction of physical capacity, a 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. It may very well happen that it spite of the weakening or even the loss of a limb, the capacity of the affected workman to do the kind of work he was accustomed to do has not in the slightest degree been affected, nor has any difficulty arising in the way of his getting employment of the usual kind by reason of the injury. In such a case, in spite of the physical injury and the effect of it, there will do no loss of the earning capacity. On the other hand, it may happen that the diminution of physical powers or the destruction of a limb makes it impossible for the affected workman to do the kind or work he used to do formerly with equal efficiency, as a result of which, although he finds it possible to obtain remunerated employment, he is not offered remuneration at the old rate. In such a case, there will be a reduction of the earning capacity but not total loss. Total loss will occur where by reason of the infirmity caused by the injury, the affected workman is unable altogether to perform duties of the nature he had been accustomed to perform and to obtain any employment because of his total incapacity for work. But total loss of earning capacity may also occur in another way. It may be that the particular physical injury suffered by the workman, such as the loss of an eye or loss of an arm, has not in fact affected the workman's capacity for doing the kind of work he had been accustomed to do and that physically he is still in a position to perform the same kind of work with an equal degree of efficiency arid yet it may be that because of the visible disfigurement, he is refused employment by every one so that his labour has become altogether un-saleable in the market where he can take it and, therefore, his capacity for earning remuneration by work has in fact disappeared, although physical capacity hat not. These are some of the matters which have to be considered where the question of a loss of earning capacity arises and the loss or diminution of such capacity must obviously be established by evidence other than the medical evidence. The utmost a medical witness can give by way of a percentage is to give the percentage of the lots of the normal physical capacity or power. The loss of earning capacity is not necessarily co-extensive with toe loss of physical capacity and certainly the former does not prove the latter....
6. We have set out this long quotation just to reiterate the relevant legal principles involved as these cases are coming up before us every now and then. A medical expert's evidence can establish the nature of the physical injuries suffered by a workman and the extent of his physical disability. A medical expert's evidence cannot prove loss of earning capacity. But the facts that appear from the medical evidence may provide basic materials far assessing the loss of earning capacity of a workman. Each case depends on its own facts. It is permissible for the Commissioner to rely on facts disclosed by medical experts for the purpose of drawing his own inference as to loss of earning capacity. In the instant case it appears that the accident occurred on the 28th December, 1963 and the workman could not resume his duties till the 18th Jane, 1964. In other words, he was incapable of working for nearly six months. Secondly, he had to undergo skin grafting from his left thigh to cover up the injuries of his left ankle, heel, sole and foot. The resulting scar mark was 12 inches by 2 inches. Thirdly, it is admitted by the employer's medical witness that he could walk very slowly in a limping gait. Fourthly, the same witness has admitted that his foot was not normal due to the presence of the scar. The cumulative effect of all these facts seems to be that so far as the left foot of the workman is concerned, he was far from normal. The extent of his physical disability has been assessed by his own doctor at 20 per cent. On these facts it does not seem to us to be unreasonable that the Commissioner has assessed at 10 per cent his loss of earning capacity.
7. In the premises, this appeal is dismissed with costs assessed at fifty-one rupees.
S.K. Datta, J.