JUDGMENT : P.C. Naik, J. - Whether a workman, who received injuries in an accident arising out of and during the course of his employment but is retained in service and paid the same salary as he was drawing prior to the accident, is entitled to compensation and whether, in the absence of assessment of loss of earning capacity by a qualified medical practitioner, the Commissioner can determine the loss of earning capacity and award compensation are the moot questions which arise for consideration in this appeal. 2. Brief facts giving rise to this appeal are that on 27.7.1985 the claimant (respondent herein) who was a workman in the employment of the appellants sustained injuries during the course of his employment. The circumstances under which he was injured need not be narrated since the accident is not disputed by the employer (appellants herein). The employer denied its liability on the ground that as the claimant continues in its employment and is drawing the same salary which he was getting before the accident, he has not suffered any loss of earning capacity. It is pleaded that during the period of treatment, the claimant was paid a sum of Rs. 5,542.55 towards medical expenses He resumed his duties after the doctoi certified him to be fit. Under these circumstances, liability is denied. 3. PW 3 the doctor who was examinee on behalf of the claimant did not say anything about the loss of earning capacity suffered by the claimant. He only stated that he has suffered permanent disability to the extent of fifty per cent due to the dislocation of cervical vertebrae resulting in quadriparesis. The disability certificate issued by him has been marked Exh. 1. The claimant also has stated that in spite of treatment he has not been fully cured and is unable to perform any work. He. however, admits that he is receiving his wages regularly. As the accident is admitted the other evidence on record relating to the accident is not being referred to. 4. On a consideration of the material on record the Commissioner came to the conclusion that the claimant has suffered permanent disability to the extent of fifty per cent whereby his earning capacity has been reduced to that extent and accordingly, on that basis, compensation was determined and a sum of Rs. 39,504.46 was awarded to the claimant. 4. On a consideration of the material on record the Commissioner came to the conclusion that the claimant has suffered permanent disability to the extent of fifty per cent whereby his earning capacity has been reduced to that extent and accordingly, on that basis, compensation was determined and a sum of Rs. 39,504.46 was awarded to the claimant. Hence this appeal by the employer which involves the questions posed above. 5. It is the contention of the learned Counsel for the appellants that as admittedly in spite of injury the claimant continues to draw the same salary which he was drawing before the accident, it is not a case of any loss of earning capacity and as such, the question of awarding any compensation does not arise, more so when the doctor himself has certified that he (claimant) is fit to resume duties. The next contention of the learned Counsel for the appellants is that in the absence of any evidence of a qualified medical practitioner regarding the loss of earning capacity, the Commissioner was not justified in himself assessing the loss of earning capacity of the claimant at fifty per cent and awarding compensation accordingly. 6. In reply, the learned Counsel for the claimant submits that 'earning' is not the same as 'earning capacity', and the mere fact that the claimant continues to draw the same salary cannot defeat his claim for compensation. It is further submitted that in view of the medical evidence on the record, the Commissioner was justified in assessing the loss of earning capacity and awarding compensation on that basis. In support of this contention, reference is made to the decision reported in Commissioners for Port of Calcutta Vs. Prayag Ram. It is further contended that the medical certificate and the evidence of PW 3 (Dr. Abbas) fully establish that the claimant has suffered disability to the extent of fifty per cent which is permanent in nature and as there is disability to that extent, he is entitled to compensation irrespective of the fact whether or not he is being retained in service and paid his salary as usual. 7. Before proceeding further, a brief reference may be made to the purpose for which the Workmen's Compensation Act was enacted. 7. Before proceeding further, a brief reference may be made to the purpose for which the Workmen's Compensation Act was enacted. As per the preamble, the Workmen's Compensation Act, 1923 is "an Act to provide for the payment by certain classes of employers to their workmen of compensation for injury by accident." The Act Was probably designed to correct what had become a very generally recognized evil. It proceeds on the principle that where a person on his own responsibility and for his own profits sets in motion agencies which create risks for others, he ought to be civilly responsible for the consequences of what he does. The Act provides an inexpensive method of settling questions regarding payment of compensation to workmen who suffered fatal injuries or are injured in an accident arising out of and during the course of their employment. 8. Under the Workmen's Compensation Act, compensation is to be calculated (in the case of disability) not on the basis of 'loss of earnings' but on the 'loss of earning capacity'. Obviously, the two are different and cannot be inter-changed. 'Loss of earnings' is the cessation of regular income by way of salary or wages, or in a case may even be the difference between the salary or wages earned prior to the accident and the reduced amount earned after the accident. 'Loss of earning capacity', however, is the loss of ability to earn though in fact the income may not have been reduced. Therefore, the mere fact that even after an accident the workman is continued in the employment and is paid the regular wages as before will not matter for what is to be seen is not whether he has lost something but whether because of the injury he will be able to earn the same wages in future with another employer? In other words, whether any other employer will, with his such incapacity or disability, hire his services on the same wages which he was getting before the accident? Thus, compensation payable under the Act is the resultant loss of earning capacity caused due to the injury. In this view of the matter, the fact whether or not the workman continues to draw the same wages, is not a relevant factor. 9. Thus, compensation payable under the Act is the resultant loss of earning capacity caused due to the injury. In this view of the matter, the fact whether or not the workman continues to draw the same wages, is not a relevant factor. 9. The question, whether a workman who suffered injury in the course of an employment could be denied compensation on the ground that there has been no loss of earning capacity as he continued to draw the same wages, also came up for consideration before this Court in the cases of Debaki Swain v. Executive Engineer, Electrical Division, Bhawanipatna, Orissa State Electricity Board 1988 ACJ 836 (Orissa), and Executive Engineer, Electrical Division Vs. Commissioner for Workmen's Compensation wherein it has been held that a workman could not be denied compensation on the ground that he continues to get the same wages as before. The first question posed in this appeal has, therefore, to be answered against the appellant and in favour of the claimant. 10. For answering the second question, a brief reference may be made to the provisions contained in Section 4(1)(c) of the Act which relates to determination of compensation in a case of permanent partial disablement resulting from an injury. Admittedly, the injury sustained by the claimant in the accident is not of the type specified in Part II of Schedule I of the Act. It is, what can be called, a 'non-schedule injury' and as such, the compensation will be required to be determined in accordance with the provisions contained in Section 4(1)(c)(ii) of the Act which provides that 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 (as assessed by the qualified medical practitioner) permanently caused by the injury. Thus, compensation payable is such percentage of the compensation for permanent total disability as is proportionate to the loss of earning capacity as assessed by the qualified medical practitioner. Admittedly, in this case though the doctor has certified the disability to be fifty per cent, he has not assessed the loss of earning capacity, as is required to be assessed under the relevant provision. 11. The reliance placed by the claimant on the decision reported in Commissioners for Port of Calcutta Vs. Admittedly, in this case though the doctor has certified the disability to be fifty per cent, he has not assessed the loss of earning capacity, as is required to be assessed under the relevant provision. 11. The reliance placed by the claimant on the decision reported in Commissioners for Port of Calcutta Vs. Prayag Ram is misconceived for that was a case which was dealing with Section 4(1)(c)(ii) as it stood before 1.7.1984. At that point of time, the words 'as assessed by the qualified medical practitioner' did not find place in the said section. The said words were incorporated in Section 4(1)(c)(ii) by Section 3 of Act 22 of 1984 and in this view of the matter, the aforesaid decision of the Calcutta High Court cannot be of any assistance to the appellant. Needless to say, when the Act now specifically provides that the loss of earning capacity is to be assessed by a qualified medical practitioner, it follows that it is not open to the Commissioner for Workmen's Compensation to himself determine the same. Duty is now cast on the workman to prove not only disability but also the loss of earning capacity by examining a qualified medical practitioner. Such assessment is sadly lacking in this case. In the absence of such a determination, I feel, the Commissioner was not right in treating the fifty percentage disability of the workman as fifty per cent of his loss of earning capacity. Accordingly, the finding recorded by the Commissioner that the claimant has suffered loss of earning capacity to the extent of fifty per cent cannot be sustained and the same is, therefore, set aside. It follows that the compensation assessed by him on that basis is also vitiated. 12. In view of the aforesaid finding, the proper course would be to remand the matter to the Commissioner for a fresh determination of the loss of earning capacity. However, in two cases, namely, New India Assurance Co. Ltd. Vs. Chittaranjan Sandha and Another, and New India Assurance Company Ltd. Vs. Babaji Das and Another where the situations are similar, this Court, instead of remanding the matters to the Commissioner for a determination of the loss of earning capacity, itself, in order to avoid hardship to the claimant, determined the compensation. Ltd. Vs. Chittaranjan Sandha and Another, and New India Assurance Company Ltd. Vs. Babaji Das and Another where the situations are similar, this Court, instead of remanding the matters to the Commissioner for a determination of the loss of earning capacity, itself, in order to avoid hardship to the claimant, determined the compensation. Looking to the nature o the injuries suffered by the present claim ant in 1989 and the period of about seven years that has since elapsed, and the fact that the claimant was not averse to the court fixing the quantum, I feel that it may not be fair to remand the matter at the stage. Therefore, taking into account the injuries sustained by the claimant and the disability suffered by him, I award a lump sum compensation of Rs. 30,000/- (Rupees thirty thousand only) which, in my view, will meet the ends of justice. The record indicates that an amount of Rs. 39,504.46 is kept in deposit with the Commissioner, Balasore. Out of the said amount, a sum of Rs. 30,000/- with the accrued interest thereon be paid to the claimant arid the balance amount be refunded to the employer/appellant. 13. The appeal is accordingly allowed to the extent indicated above. There shall be no order as to costs.