JUDGMENT 1. THIS is an appeal from the award of the Commissioner of Workmen's Compensation west Bengal, holding that the workman had sustained loss of earning capacity to the extent of 6%. The accident happened on July 29, 1970 and both of his legs and feet were injured on account of the fall of rolls of carpet on him while on duty. The employer appellant's case was that the workman was temporarily disabled for which he was: duly paid and no permanent partial disability was suffered so that there was no loss of earning capacity. 2. DURING trial the workman stated that he was treated for one month for the injury and still felt pain on both legs and right foot. He claimed that he was receiving of Rs. 300/- p. m. and admitted that he was still receiving the same rate under the appellant. His doctor found swelling and tenderness of the particular margins of the cuneiforms and basses of 1st, 2nd and 3rd metatarsals of right foot with stiff and painful joints and pain and pressure on each foot. He also found swelling and tenderness of the skin and the particular margins of the lower and right tibia with stiff and painful ankle joints as also of the particular margins of the condoles of left tibia with stiff and painful ankle joints. He further found indurations and tenderness of the left calf with stiffness of left knee joint and also noted that the gait was limping, while squatting was difficult, painful and. incomplete. He assessed the disability at 15%. The doctor of the employer on the other hand found that there was no mark of injury on both legs nor any disability of soft or bony tissue in both legs and feet. According to his opinion the workman did not suffer from any disability. The learned Commissioner found that the workman was in the wage group of Rs. 200- -Rs. 300/ -. He considered the conflicting medical reports, 28 which are unfortunately an usual feature in such proceedings, and also considered Ext. B which is the accident report of the Calcutta Dock Labour board. It recorded that the workman got hurt on both legs by rolls of carpet while working. 200- -Rs. 300/ -. He considered the conflicting medical reports, 28 which are unfortunately an usual feature in such proceedings, and also considered Ext. B which is the accident report of the Calcutta Dock Labour board. It recorded that the workman got hurt on both legs by rolls of carpet while working. He also examined the injured legs and feet and considering the evidence, he held that the workman sustained loss of earning capacity to the extent of 6% and the award was made accordingly. 3. IN this appeal Mr. Mahadev ghosh learned Advocate for the appellant has contended on authorities that there was no evidence to support any case of loss of earning capacity and mere physical injury does not automatically mean or imply loss of earning capacity particularly when the workman even after the accident was earning the same wages. 4. THE problem of assessment of loss of earning capacity has always been a controversial question and it is difficult to arrive a mathematical precision particularly when the injury is one not specified in schedule 1. Section 4 Subsection (1), Clause (a) provides for the amount of compensation when death results from the injury, Clause (b) for permanent total disablement from the injury, while Clause (c) is concerned with permanent partial disablement. Section 4 Subsection (1), Clause (a) provides for the amount of compensation when death results from the injury, Clause (b) for permanent total disablement from the injury, while Clause (c) is concerned with permanent partial disablement. Clauses (a), (b) and (c) are as follows :- "section 4 (1) Subject to the provisions of this Act the amount of compensation shall foe as follows, namely :- (a) Where death results from the injury and the deceased workman has been in receipt of monthly wages falling within limits shown in the first column of Schedule IV-the amount shown against such limits in the second Coolum thereof (b)Where permanent total disablement results from the injury and the injured workman has been in receipt of monthly wages falling within limits shown in the first column of Schedule IV the amount shown against such limits in the third column thereof (c)Where permanent partial disablement results from the injury- (i) in the case of an injury specified in (Part II of Schedule I, such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury, and (ii) 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. " EXPLANATION :-Where more injuries than one are caused by the same accident, the amount of compensation payable under this head shall be aggregated but not so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries; There have been consistent and uniform decisions of the Courts that in case where clause (c) (ii) applies, the estimate, is to be; made of the loss of the workman's earning capacity and not loss of his physical capacity as was held in fast Indian Railway vs. Maurice Cecil ryan, AIR 1937 Calcutta 526. In Kali das vs. S. K. Mondal, AIR 1957 Calcutta 660, the Court speaking, through Chakravartti, C. J. pointed out that medical opinion is only in regard to the physical aspect of the injury but riot in respect of loss of earning capacity, as this is not a matter on which medical opinion can possibly speak. The loss of earning capability is to be determinedly the extent to which the destruction or diminution of physical capacity can be reasonably taken to have disabled the workman from performing" the duties of a workman like him and from earning his normal remuneration earned for such duties. The medical opinion is thus not a decisive factor on the question of earning. the same view was taken in later decisions in Commissioners. for the Port of Calcutta v. Prayag Ram AIR 1967 Calcutta and in P. K. Davis and Co. Routh A. I. R. 1968 Calcutta 129 and. Calcutta Electric Supply Corporation v. Habul Chandra Dan, A. IK. 11968 Calcutta 278. 5. IN Calcutta Licensed Measurers v. Md. Hossain, AIR 1969 Calcutta 378, the Court laid down as established, the following propositions : (i) earning is not the same as earning capacity: (ii)the rise in earning may be because of various factors and rise in wages is not decisive of no loss of, earning capacity ; (iii) loss of physical capacity is not co-extensive with loss of earning capacity and (iv) 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 or the employment in which he was engaged. at the time of the accident as the case falls for consideration. The Court referred to with approval the dicta in Kali Doe's case (supra) that the medical evidence may be necessary to find out loss of physical capacity but as to loss of earning capacity it is but opinion evidence. The loss of earning capacity is to be determined by taking into account firstly the diminution or destruction of physical capacity as disclosed by the medical evidence and thereafter its effect about the extent it has disabled the workman from performing the duties which a workman of his class ordinarily performs with reference to the time of the accident. 6. The loss of earning capacity is to be determined by taking into account firstly the diminution or destruction of physical capacity as disclosed by the medical evidence and thereafter its effect about the extent it has disabled the workman from performing the duties which a workman of his class ordinarily performs with reference to the time of the accident. 6. THESE principles were followed again in Commissioners for the Port of calcutta vs. Ajit Kumar Ghosh, 76 c. W. N. 639. In Bengal Coal Co. vs. Shahed Miah, 81 C. W. N. 681 it was again reiterated that while a medical expert's evidence can establish the in juries suffered by the workman and extent of his physical disability but such evidence can not prove his loss of earning capacity. All the same the medical evidence may provide: basic materials for assessing the loss of earning capacity of a workman and each case depends of its own facts. It has often been contended, as also before us, that there had been in fact no loss of earning capacity since; the workman was in the same or even better job under the same employer. Earning the same or higher amount. This contention though attractive appears to offer no true or correct guidance. The question was considered by the Court of appeal In Moeliker vs. A. Reyrolle and co. (1977) 1 AH E. R. Page 9 where it has been laid down that the court will have to decide first if there is a substantial or real risk that the workman will lose his present job at some time before the end of his working life and be thrown on the labour market more than once or example, if he takes a job and. then finds he cannot manage it because of his disabilities. The next stage is for the court to assess this risk and quantify it in damages. 7. THE case for compensation will thus require in addition a consideration of the chances of the workman's obtaining in the open labour market a suitable job like the one he was engaged at the time of accident, which under a private employer is obviously terminable, and also of the possible reduction of his earning capacity in every employment which he: was capable of undertaking at that time. Unlike the general law, the workmen's Compensation Act, 1923, provides in its Schedule I for specified injuries a percentage of compensation which is payable for permanent total disablement as also specified therein. Where the injury suffered causes permanent partial disablement but is not one specified in the schedule I, such percentage of compensation/ which is payable in case of permanent total disablement, as is proportionate to the loss of earning capacity permanently caused by the injury, becomes payable to the workman. 8. IN case of such unspecified injury resulting in permanent partial disablement, it is not normally possible for a workman to establish his loss of earning capacity by his prospects or the offers to him in the open labour market, since he may be in is old or other employment. In such circumstances all that the Commissioner has to do in discharge of his judicial functions is to assess the loss of the earning. Capacity of the workman in the light of the medical report as also on the basis of his own estimate of the workman's possibilities of employment in the open labour market and similar other relevant factors at such percentage of the amount payable for permanent total disablement as may be deemed fair and reasonable in the facts of each case. In the case before us, we are satisfied that the learned Commissioner has adopted the procedure and method as indicated above, and his assessment of the unspecified injury at six percent of loss of the earning capacity is fully justified. The appeal accordingly fails and is dismissed with costs and all interim orders are vacated. Appeal dismissed with costs.