JUDGMENT: The Management who was the respondent before the Deputy Commissioner of Labour (Commissioner for Workmen’s compensation), Coimbatore, has come forward with the instant civil miscellaneous appeal. 2. This C.M.A. has arisen in this way: The respondent herein, Gnanasekharaan, was employed as a worker under the appellant herein for pruning work in the estate. He sustained injury over his left thumb and index finger on 22.7.1995. He filed an application under the relevant provisions of the Workmen’s Compensation Act, 1923, claiming compensation of Rs.51,062. The management refuted the claim and contended that after the accident, the workmen is getting the same emoluments which he was drawing at the time of the accident and therefore, no loss or damage was caused to the workmen as a result of the injury. The learned Deputy Commissioner for Workmen’s Compensation, after considering the evidence, directed the management to pay Rs.32,237 within thirty days from the date of the order, failing which the management should pay the said amount with interest at 12% till realization. Aggrieved by the orders passed by the learned Deputy Commissioner for Workmen’s Compensation, the management has come forward with the instant C.M.A. 3. The two grounds urged by the learned counsel for the appellant- management are, that, (i) the respondent-workman has suffered a trivial injury and even after the accident, the respondent- workman is getting the same emoluments which he was drawing at the time of the accident; (ii) the learned Deputy Commissioner for Workmen’s Compensation failed to draw a distinction between the personal injury and loss of earning capacity, i.e., the learned Deputy Commissioner had failed to consider whether the injury resulted in loss of earning capacity, but in the absence of any evidence the learned Deputy Commissioner has held that the workman has suffered 31% loss of earning capacity. 4. Heard both the sides. It is not in dispute that the respondent- workman sustained injuries in the course of his employment. According to the appellant- management, the respondent- workman had not sustained any loss in earning capacity in that he is drawing the same salary, which the learned Deputy Commissioner ought to have taken into consideration and dismissed the claim application. 5. The learned counsel for the respondent- workman submitted that the fact that the workman is drawing the same salary in praesenti would not disentitle him from claiming the compensation. 5. The learned counsel for the respondent- workman submitted that the fact that the workman is drawing the same salary in praesenti would not disentitle him from claiming the compensation. The learned counsel cited the decision reported in Kerala Minerals and Metals Ltd. v. K.Bhaskaran, (1998)1 L.L.N. 902, where a Division Bench of the Kerala High Court consisting of AR.Lakshmanan and K.A.Abdul Gaffoor, JJ. has referred to certain earlier decisions and held that comparison between the wages drawn by the workman before and after the accident from his employer is not the determinative factor. The Kerala High Court has referred to an earlier decision of a Division Bench of this Court reported in Sree Lalithambika Enterprises, Salem v. S.Kailasam, (1988)1 L.L.N. 393, where it has been observed as under: "Coming to the scope of Sec.4(1)(c)(ii) of the Act, we are of the view that the loss of earning power should not be confined only to the present capacity because it is contended by the management that at the same salary the workman is continued in employment. That will be only begging the question. If this were to be the law, the employer can easily evade the provisions of the Act by continuing the employment on the same terms as was enjoyed by the Workman prior to the accident. Therefore, we are unable to agree with the view taken by the Punjab High Court in Sewa Singh v. Indian Hume Pipe Company, A.I.R. 1964 Punj. 512. Nor again can it be said that if in future the workman is compelled to seek employment at reduced wages he can claim compensation. That would only result in the negation of the beneficial provisions of the Act which are intended to benefit unfortunate workmen like the respondent herein. Added to this, should the management wind up its business, the workman will be in the lurch because no person with his eyes open will give employment to a person who has suffered an injury of this kind. Therefore, this is clearly a case to which Sec.4(1)(c)(ii) of the Act would apply. Added to this, should the management wind up its business, the workman will be in the lurch because no person with his eyes open will give employment to a person who has suffered an injury of this kind. Therefore, this is clearly a case to which Sec.4(1)(c)(ii) of the Act would apply. Consequently, we agree with the judgment forming the subject-matter of the appeal." The Kerala High Court has referred to another earlier decision also reported in Executive Engineer, Public Works Department, Udaipur v. Narain Lal, (1977)2 L.L.N. 415, where it was held as follows: "The Workmen’s Compensation Act is to provide security to the workmen who sustain partial incapacity resulting in the earning capacity. This statutory protection is independent of the acts of grace or mercy which the employer might show him. In a welfare state, the protection afforded to a workman cannot be allowed to rest on the mercies of the employer; if the employer does so, it is commendable, but the workman still has a stake in his employment which is guaranteed to him under the Workmen’s Compensation Act. Therefore, the loss in the earning capacity has to be calculated in terms of the permanent partial disability to which the workman has been subjected to....". Reference has also been made in the Kerala High Court Judgment to another judgment rendered by a single Judge of the Orissa High Court where it has been observed as under: "In considering this loss of earning capacity in the case of a permanent partial disablement the comparison between the wages drawn by the workmen before and after the accident, from his employer at the time of the accident is not a determinative factor. If that be so, the cunning employer to tide over the liability may offer a temporary employment to the claimant-Workman to deprive him his entitlement under the Act. That would be against the legislative intent. The plea that there being no loss in the wages, compensation could not have been awarded, cannot be accepted". If that be so, the cunning employer to tide over the liability may offer a temporary employment to the claimant-Workman to deprive him his entitlement under the Act. That would be against the legislative intent. The plea that there being no loss in the wages, compensation could not have been awarded, cannot be accepted". In view of the decision rendered by the Division Bench of this Court reported in Lalithambika Enterprises, Salem v. S.Kailasam, (1988)1 L.L.N. 393, and the other decisions cited supra, I am satisfied that the arguments of the learned counsel for the appellant- management that because the workman is getting the same salary, the learned Deputy Commissioner ought Act to have proceeded to award compensation, holds no water. 6. The next point submitted by the learned counsel appearing for the appellant is regarding lack of evidence to fix loss of earning capacity. The learned counsel for the respondent- workman submitted that the learned Deputy Commissioner has found that the workman has suffered 31% disability and such finding is a question of fact. The learned counsel submits that unless a substantial question of law is involved, no appeal shall lie to this court under Sec.30 of the Workmen’s Compensation Act. It would be useful to refer Sec.30 of the Workmen’s Compensation Act, which recites as under: "30. The learned counsel submits that unless a substantial question of law is involved, no appeal shall lie to this court under Sec.30 of the Workmen’s Compensation Act. It would be useful to refer Sec.30 of the Workmen’s Compensation Act, which recites as under: "30. Appeals: (1) An Appeal shall lie to the High Court from the following orders of a Commissioner, namely: (a) an order awarding as compensation a lump sum whether by way of a redemption of a half-monthly payment or otherwise or disallowing a claim in full or in part for a lump sum; (aa) an order awarding interest or penalty under Sec.4-A; (b) an order refusing to allow redemption of a half-monthly payment; (c) an order providing for the distribution of compensation among the dependents of a deceased workman, or disallowing any claim of a person alleging himself to be such dependent; (d) an order allowing or disallowing any claim for the amount of an indemnity under the provisions of Sub-sec.(2) of Sec.12; or (2) an order refusing to register a memorandum of agreement or registering the same or providing for the registration of the same subject to conditions: Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal and, in the case of an order other than an order such as is referred to in clause (b), unless the amount in dispute in the appeal is not less than three hundred rupees: Provided, further, that no appeal shall lie in any case in which the parties have agreed to abide by the decision of the Commissioner, or in which the order of the commissioner gives effect to an agreement come to by the parties: Provided, further, that no appeal by an employer under Clause (a) shall lie unless the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against. (2) The period of limitation for an appeal under this Section shall be sixty days. (3) The provisions of Sec.5 of the Limitation Act, 1963 (36 of 1963) shall be applicable to appeals under this Section". 7. The words ‘substantial question of law’ have not been defined anywhere in the statute and yet they have acquired a definite connotation. (2) The period of limitation for an appeal under this Section shall be sixty days. (3) The provisions of Sec.5 of the Limitation Act, 1963 (36 of 1963) shall be applicable to appeals under this Section". 7. The words ‘substantial question of law’ have not been defined anywhere in the statute and yet they have acquired a definite connotation. Involvement of mere question of law is not sufficient but it should be substantial. There are certain guides to find out as to what is substantial question of law. To be a substantial question of law, it must be a question of law of great public importance or a question of law which arises so frequently as to affect a greater class of people or a question of law based on the operation of the Act itself. 8. In Mrs.Kathleen Dias v. H.M.Coria & Sons, (1951)2 L.L.J. 192 , the Gujarat High Court has observed that, even if the question of law is not of general public importance but is one which concerns only the dispute between the parties, if the question of law is fairly arguable or where there is room for difference of opinion on it, then the question would be substantial question of law. 9. It has also been held in Rajinder Singh v. Shri Malki Ram, 1978 Kash.L.J. 84: 1978 A.C.J. 222 (J.& K.), misappreciation of evidence or insufficiency of evidence is not a question of law, though absence of evidence is held to be such question of law. 10. In Bhanora Colliery v. Poda Teli, (1974)2 L.L.J. 520 at 525 (Cal.) (D.B.), it was held that what weight and what value should be given to a particular evidence, is a matter for a court of fact; and, if a court of fact puts greater weight on a certain piece of evidence, such a conclusion cannot be said to raise a substantial question of law under Sec.30, and that it might have been otherwise if the Commissioner has acted without any evidence of loss of earning capacity and had relied solely on medical evidence. 11. 11. The learned counsel for the respondent cited the following authorities to stress that unless substantial question of law is involved, an appeal should not be entertained: (i) In Khoomataie Tea Estate v. Ramiya Mal, 1978 Lab.I.C. 139, where a workman of a Tea company was cleaning the company in the course of his duty as a fitter and while doing so, his right hand was caught in the conveyer belt as a result of which the radius of his right hand was fractured which completely and permanently affected the use of his right hand, before the learned Commissioner the workman claimed compensation for the injury and examined himself and another witness on his behalf, while on behalf of the employer two witnesses were examined, but no medical evidence was adduced. The learned Commissioner came to the conclusion that as a result of the injury loss of use of right hand was 100% and determined the loss of earning capacity at 60%. On appeal, the Gauhati High Court held that on the evidence the Commissioner was entitled to come to the conclusion that as a result of injury there was loss of earning and this being a question of fact, that does not require any interference. (ii) In G.M., I.C.F., Madras v. V.G. Dasarathan, (1997)1 L.L.J. 880 , which is a case where an employee who was booked to work for first session of night shift and second session of night shift, but he unauthorisedly left for his home after the completion of the first session of night shift without attending the second session of night shift got involved in an accident after which he applied for leave for the second session of the night shift and unauthorised leave on loss of pay was sanctioned to him for the second session of the night shift as well as subsequent three days by the employer. In a claim for compensation question came up whether the sanctioning of leave by the shop superintendent is proper or not and whether the acceptance of leave so sanctioned by the shop superintendent by the Commissioner for Workmen’s Compensation would only amount to re-assessing the evidence and an appeal to reverse the finding of a fact arrived at by the Commissioner for Workmen’s Compensation is not permitted under Sec.30 of the Workmen’s Compensation Act. (iii) In Ranga Cotton Ginning Mills v. G.R.Kumari, (1997)3 L.L.N. 104 , it has been pointed out: "There is a total prohibition to deal with the matter by way of appeal under Sec.30 of the Workmen’s Compensation Act, 1923, unless it involves a substantial question of law. To make it certain it must be mentioned that the pure finding of fact cannot be the subject-matter of such an appeal. But the finding of fact based on no evidence or perverse appreciation of evidence totally opposed to accepted principles, thereby raising a substantial question of law whether such a finding can be supported, appeal can be maintained. Therefore, legally it must be noticed that law relating to the appeals against such orders has been codified in Sec.30 of the Act providing for an appeal only in relation to certain matters and not in all circumstances". 12. Regarding appreciation of evidence if no reasonable person could come to the conclusion arrived at by an authority, then that would involve a substantial question of law. Therefore, it has to be analysed whether the findings of the learned Deputy Commissioner is not based on any evidence at all or upon most unsatisfactory evidence which no reasonable and prudent man would think that it could be acted upon. It should also be examined whether such a finding is totally arbitrary. 13. The learned counsel for the appellant-management submits that the learned Deputy Commissioner had (i) not appreciated the evidence in the proper perspective; (ii) not understood the distinction between the personal disability and partial loss of earning capacity; and (iii) not considered whether the loss of earning capacity is based on evidence. I have carefully pursued the records in this case. In his claim application, the workman has claimed that he was suffered with partial loss of earning capacity and therefore, was entitled to claim Rs.51,062. In the application, it is stated that The only witness examined before the learned Deputy commissioner on the side of the workman was the workman himself. His evidence is very laconic. He has stated as under: He had produced the medical certificate issued by Dr.C.J.B. Gnanaraj, M.S. (Ortho), D.Ortho, who was working at Coimbatore. In the application, it is stated that The only witness examined before the learned Deputy commissioner on the side of the workman was the workman himself. His evidence is very laconic. He has stated as under: He had produced the medical certificate issued by Dr.C.J.B. Gnanaraj, M.S. (Ortho), D.Ortho, who was working at Coimbatore. The Doctor has given certificate to the effect that the worker has sustained sensory loss over the alnar side thumb reckoned as 1.2% post traumatic stiffness of the left thumb as 10% wasting of the limbrical, interoggli muscles as 10% and involuntary movement due to attempted nuero panethereby as 10%. totalling 31.2%. The Doctor had not been examined as a witness. 14. On the other hand, the appellant- management had examined one Doctor Sivaraman, working in the hospital center run by the management, as R.W.1 who has spoken to about a certificate issued by a specialist. He has stated as under: I have very carefully perused the file. But, I do not find (Ex.R-1). At page No.8 of the typedset of papers, I find a xerox copy of the certificate purported to have been issued by Dr.R.V.S. Rajanikanth, Orthopedic Surgeon. The certificate is to the following effect: “Sri Gnanesekar was reviewed at General Hospital on 21st instant. He is a chronic alcholic and smoker. He has fine tremors which are probably related to these habits. He is an old case of Extensor Polices Lonnus Injury (L) thumb which has been repaired, with good healing, at Central Hospital, Uralikal. The movements of the left thumb are full. He does not require any active treatment. He has no disability on account of the injury to (L) thumb”. 15. It is evident that the learned Deputy Commissioner has not gone through this certificate. May be it was not available before him, because it was not marked. In the annexure to the order, regarding exhibits marked, it is stated as under: That shows that the certificate issued by Dr.Rajanikanth was not at all marked before the learned Deputy Commissioner. 16. The next question is whether the acceptance of oral evidence of the worker and the medical certificate without examining the Doctor would amount to assessment of evidence in an arbitrary manner. 16. The next question is whether the acceptance of oral evidence of the worker and the medical certificate without examining the Doctor would amount to assessment of evidence in an arbitrary manner. It is pertinent to note that the claimant has not stated anything about the disability suffered by him i.e., whether he is in a position to use his hand properly or not. Therefore, on the basis of the oral evidence of the workman, no reasonable man would come to a conclusion that the workman has suffered disability. I have already pointed out that though Ex.P-1 has been marked, the Doctor who issued the certificate has not been examined. 17. In Panchanan Ghose v. Bhaggu Bari, A.I.R. 1950 Cal. 261, a case where there was no other evidence excepting the medical certificate, it was held that the medical certificate would not afford evidence with regard to loss of earning capacity. In that case, the Commissioner has based his award on his own observation. 18. In the instant case, the learned Deputy Commissioner accepted the medical certificate without examining the Doctor. If the Doctor had been examined, the medical expert’s evidence would establish the nature of physical injury suffered by the workman and the extent of physical disability and whether it resulted in the loss of earning capacity. In this present case, the learned Deputy Commissioner had come to the conclusion regarding the loss of physical capacity without any acceptable evidence. The learned Deputy Commissioner had not even assessed the loss of earning capacity. He has simply accepted the partial physical disability as partial loss of earning capacity. The learned Deputy Commissioner had not considered as to what type of work the workman was doing and how the physical capacity even accepting for argument sake, would prove impairment of the work and to what extent the earning capacity is impaired. I am satisfied that there is no evidence for the Deputy Commissioner to assess the earning capacity and what little evidence has been let in would not be sufficient for a reasonable person to come to a conclusion regarding physical disability or to assess of loss of earning capacity. 19. I am satisfied that there is no evidence for the Deputy Commissioner to assess the earning capacity and what little evidence has been let in would not be sufficient for a reasonable person to come to a conclusion regarding physical disability or to assess of loss of earning capacity. 19. The learned counsel for the appellant- management cited an authority reported in Oriental Insurance Company Ltd. v. R.Mohapatra, (1996)1 L.L.N. 665, where under identical circumstances, the Orissa High Court has held that the Commissioner was not justified in working out the entitlement in the manner he has done in the absence of the Doctor being examined. It was also held that the examination of the Doctor who could have thrown light as to how he has worked out the percentage of the physical disability is highly desirable in a case where the loss of earning capacity is pleaded. 20. I feel that the proper course would be to remand the matter for fresh adjudication by the learned Deputy Commissioner. The appeal is therefore allowed. The order passed by the learned Deputy Commissioner is set aside. The matter is remitted back to the learned Deputy Commissioner for fresh adjudication. The Deputy Commissioner is directed to dispose of the matter within three months from the date of the receipt of the records. Consequently, C.M.P. Nos.11242 of 1997 and 3374 of 1999 are closed.