JUDGMENT : R.N. Misra, J. - This is an appeal u/s 30(1)(a) of the Workmen's Compensation Act of 1923 and is directed against the decision of the Workmen's Compensation Commissioner, Koraput. 2. The Respondent who is not represented in this Court was working in the construction section of the Aero-engine Factory Township at Sunabeda. It is said that while being engaged in laying of cement pipes, the Claimant-Respondent sustained injury in his right hand. The claimant was working on daily wages of Rs. 2.50. According to him the injury led to partial disability and he was entitled to compensation under the Act. In support of his claim laid on 10-2-1968 he was examined by the Commissioner that very day. The case was duly registered as Workmen's Case No. 575 of 1968 and notice was issued to the Executive Engineer. P.H. Division N. II, Aero-engine Factory Project, Sunabeda, who had employed the claimant in the particular job in execution where of he received the injury. The employer in his written statement denied liability to pay any compensation. Four issues were framed by order dated 21-4-1970. Two of the workers engaged in the establishment were examined. The plea taken by the employer was that the person under whose supervision the work is to be done was absent when the Claimant-Respondent and some other people came to execute the work of laying the pipes. There was negligence on the part of the workman and, therefore, no compensation was payable. It was also contended that the employment was causal. 3. The Workmen's Compensation Commissioner discussed the entire evidence on record and came to find in favour of the Claimant-Respondent on all the issues. He relied upon the certificate issued by the Civil Surgeon of Koraput to show that there was a loss of earning capacity to the tune of thirty per cent. Accordingly he fixed the compensation at Rs. 2,016.00. 4. Learned Government Advocate in support of the appeal contends that the manner of disposal of the case by the Workmen's Compensation Commissioner is not in accordance with law. Issues were not properly framed. The claimant did not appear before the Commissioner for being cross-examined and, therefore, his evidence was not to be at all accepted. The evidence led on behalf of the employer has not been considered in accordance with law. Issues were not properly framed. The claimant did not appear before the Commissioner for being cross-examined and, therefore, his evidence was not to be at all accepted. The evidence led on behalf of the employer has not been considered in accordance with law. The provisions contained in the statutes and the Rules made there-under have not been strictly followed. Accordingly, it is contended that the award of compensation is liable to be vacated. 5. There is some force in the contention of learned Government advocate that the disposal of the case has not been very satisfactory. But I am not inclined to interfere in this case for the following reasons. 6. There is no dispute that the claimant was engaged in employment under the Executive Engineer of the relevant division and received the injury in course of employment The only defence taken was that the claimant was a casual labourer and not a workman and the injury was sustained more on account of negligence than on account of discharge of duty to the employer. The Workmen's Compensation Commissioner has recorded a finding that the claimant was not a casual employee but was a workman. In fact the evidence of the two witnesses for the employer support that conclusion. 7. The two witnesses for the employer also support the stand of the claimant that there was no negligence on his part as a result whereof the injury was sustained. In the afternoon shift which normally is to begin at 2.00 p.m. the claimant and his co-employees were directed by the mistry to start work because the supervising officer was not coming in time. It was only under the instructions of the mistry, who in normal circumstances must be directing execution of work, that the work in question was handled. The claimant with a view to saving the costly pipe from damage tried his best by use of all his force to slowly release the pipe. The process in which the work was executed has been clearly indicated both by the claimant as also the two witnesses for the employer. There is no room to hold that the injury was the outcome of negligence or that the claimant had contributed in any manner to the sustaining of the injury. 8. The Workmen's Compensation Commissioner has relied upon the report of the Civil Surgeon. There is no room to hold that the injury was the outcome of negligence or that the claimant had contributed in any manner to the sustaining of the injury. 8. The Workmen's Compensation Commissioner has relied upon the report of the Civil Surgeon. There is no indication in the records of the Commissioner that Government objected to the certificate of the Civil Surgeon being taken into account. The circumstances clearly indicate that the conduct of the parties has beed above board and the certificate from the Civil Surgeon seems to be absolutely bona fide and genuine. 9. Learned Government Advocate placed reliance on two recent decisions in support of his contention. The first decision is in the case of Y. Srinivasa Rao Vs. The Commissioner for Workmen's Compensation and Others The question that came up for consideration in the said case is very different. Liability u/s 12(1) of the Act was under determination and therefore, the expression "trade or business" became relevant for consideration. The facts of the present case are very different and no support is available from the said decision for the contention of the Appellant. 10. The next case is a Bench decision of the Calcutta High Court in the case of Commissioners for the Port of Calcutta Vs. Ajit Kumar Gosh. The Division Bench reiterated the view expressed in their Court in Kali Das Ghosal Vs. S.K. Mondal, where Chakravarthi C.J., had expressed the view that: "...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 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. After the medical evidence as to the nature and measure of 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 the principal factor. After the medical evidence as to the nature and measure of 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 the principal factor. But loss of earning capacity or the extent of it is a question of fact..." After discussing a number of cases of their own Court, the Division Bench deduced the following principles: "(1) earning is not the same as earning capacity. (2) the rise in earning may be because of various factors and rise in wages is not decisive (sic) of earning capacity. (3) Loss of physical capacity is not coextensive with the loss of earning capacity, and (4) loss of physical capacity or physical incapacity may be relevant in assessing to what extent there is loss of earning capacity for every employment which the workman was capable of undertaking at that time of the employment in which he was engaged at the time of the accident as the case falls for consideration." There does not seem to be any scope to dispute the propositions laid down above. In this case the claim was laid on the basis of total damage to the right hand. The doctor found that the injury was partial and it affected the earning capacity of the claimant to the extent of thirty percent. The fact that the claimant had the injury is admitted. There could be a remand to gather evidence in the line indicated by the Calcutta High Court, but as I find, the Respondent is a poor hill tribe man he would not be in position to contest the proceeding. In fact he had made that statement when on 12-10-68 the Compensation Commissioner examined him at the time of initiating the case. The Executive Engineer had not taken any objection when the case was being proceeded with on the basis of the medical certificate. To collect medical certificate the proceeding was adjourned for about more than a year. Keeping these aspects in view, I think it appropriate not to remand the case particularly when it has been established that there was injury to the hand of the Respondent in course of employment and it was not sustained on account of contributory negligence of the Respondent. 11. The appeal fails and is dismissed. Keeping these aspects in view, I think it appropriate not to remand the case particularly when it has been established that there was injury to the hand of the Respondent in course of employment and it was not sustained on account of contributory negligence of the Respondent. 11. The appeal fails and is dismissed. I make no order as to costs. The amount of compensation is said to be in deposit. Steps be taken to pay the same to the Respondent. Final Result : Dismissed