ORDER R.K. Patra, J. - This appeal filed on behalf of the Divisional Manager, Oriental Insurance Company Limited u/s 30 of the Workmen's Compensation Act, 1923 (in brief 'the Act') is directed against the order dated August 8, 1994 of the Commissioner for Workmen's Compensation-cum-Assistant Labour Commissioner, Cuttack in W.C. Case No. 390-D of 1992. By the impugned order the Commissioner has directed the appellant to pay a sum of Rs. 50,415/- as compensation to respondent No. 1. 2. It may be noted that the Commissioner earlier by order dated April 14, 1993 fixed the compensation payable to respondent No. 1. The said order was challenged by the appellant in M. A. No. 328 of 1993. This Court by order dated May 18, 1994 set aside the order of the Commissioner dated April 14, 1993 and remitted the matter to him for fresh disposal with certain observation and direction. The concerned parties were directed to appear before the Commissioner on a particular date. The appellant, however, despite valid service of notice on him did not appear and chose to remain absent. The respondent No. 1, however, appeared. On the basis of the evidence available on record, the Commissioner has passed the impugned order. 3. The case of respondent No. 1 was that due to the accident he got fractured injury on his forehead, right side rib and right hand. As a result of such injury he became disabled to perform the duty of driver. Respondent No. 1 besides examining himself, got the doctor examined as PW 3. After remand, the doctor was not further examined. The Commissioner by the impugned order has held that due to the injury, respondent No. 1 has lost his earning capacity to the tune of 50% and accordingly determined the compensation at Rs. 50,450/-. 4. Shri Mohanty, learned counsel for the appellant, raised two points in support of the appeal: (i) There is no evidence that on account of the injury sustained by the respondent No. 1, there is loss of his earning capacity. In this connection he has placed reliance on the Division Bench decision of this Court in C. David Vs. Gobind Chandra Mishra and Another, and (ii) The Commissioner acted illegally in disbursing of the amount which was deposited by the appellant in the earlier appeal, i.e. M. A. No. 328 of 1993 without notice to him. 5. In this connection he has placed reliance on the Division Bench decision of this Court in C. David Vs. Gobind Chandra Mishra and Another, and (ii) The Commissioner acted illegally in disbursing of the amount which was deposited by the appellant in the earlier appeal, i.e. M. A. No. 328 of 1993 without notice to him. 5. Point No. (i) : It is relevant to note here that after the matter was remanded by this Court, the doctor was not reexamined by the respondent No. 1. In his evidence recorded earlier he stated that he is not an Orthopaedic Specialist and neither did he see the X-ray report nor any report relating to the injured. According to him, epilepsy is a disease in itself either inherited or acquired and it may not be proximate cause of any accident only. In paragraph 8 of the judgment in the case of David (supra), it was observed by this Court as follows: "In the premises stated above, we state that while assessing compensation, the Court has to see whether the earning capacity of the injured has been, reduced in every employment and not merely in particular employment in which he was engaged at the time of the accident. That is the reason why Section 4(1)(c)(ii), Explanation II of the Act mandates that in case of non-schedule injury the qualified medical practitioner while assessing the loss of earning capacity shall have due regard to the percentage of loss of earning capacity in relation to different injuries specified in Schedule-I." It has been emphasised that in case of an injury not specified in Schedule-I of the Act, the amount of compensation would depend upon the evidence of the medical practitioner who has to assess the loss of earning capacity of the injured in every employment and not merely in a particular employment in which he was engaged at the time of accident and while assessing the loss of earning capacity the doctor shall have due regard to the percentage of such loss of earning capacity. The doctor's evidence falls short of the requirement of Section 4(1)(a)(ii) Explanation II of the Act. The Commissioner has clearly erred in absence of any evidence in holding that on account of the injury, respondent has lost his earning capacity of 50 per cent. The aforesaid finding is obviously based on mere guess work. The doctor's evidence falls short of the requirement of Section 4(1)(a)(ii) Explanation II of the Act. The Commissioner has clearly erred in absence of any evidence in holding that on account of the injury, respondent has lost his earning capacity of 50 per cent. The aforesaid finding is obviously based on mere guess work. Point No. (ii) : Admittedly within 8 days of the impugned order, the Commissioner disbursed the amount of compensation to respondent No. 1 without notice to the appellant. It may be noted that the said amount was deposited by the appellant in M. A. No 328 of 1993 which was disposed of by this Court on May 18, 1994. The Commissioner treating that deposit as the deposit made pursuant to the impugned order has obviously disbursed the amount. It appears that the Commissioner was in a hurry to disburse the amount. He should have heard the appellant before disbursing the amount to respondent No. 1. Had the amount of compensation been in fixed deposit, the Commissioner could not have disbursed it. The manner in which the amount was disbursed to respondent No. 1 is not appreciated and such action on the part of the Commissioner is disapproved. 6. The fact, however, remains that respondent No. 1 has already received the amount. Although the impugned judgment is vulnerable on the first ground, as indicated, I am not inclined to interfere with it as in the meantime more than nine years have already passed after the accident and amount of compensation has been received by respondent No. 1. 7. The appeal consequently has to be dismissed and it is ordered accordingly. Final Result : Dismissed