Judgment : M. VENUGOPAL, J. This Civil Miscellaneous Appeal is directed against the award dated 20.8.2003 passed in W.C. No. 18 of 2002 by the Workmens Compensation Commissioner, Dindigul. 2. The Workmens Compensation Commissioner (Tribunal), Dindigul, after contest on appreciation of oral and documentary evidence, has passed an award on 20.8.2003, granting a sum of Rs. 2,14,491/- (Rupees Two Lakhs Fourteen Thousand Four Hundred and Ninety One only) as compensation along with interest at 9% p.a from the date of accident till date of payment. The appellant/second respondent, National Insurance Company Ltd,Madurai, has been directed to pay the aforesaid sum within thirty days from the date of receipt of the copy of the award. 3. Brief facts of the case are as follows: (i) The first respondent/claimant has filed the claim petition before the Workmens Compensation Commissioner (Tribunal), Dindigul, inter alia stating that he has been a driver/employee employed by the second respondent as the owner of an auto bearing Registration No. TN-59-J-0954 and that the vehicle has been insured with the appellant/National Insurance Company Ltd., Madurai and that on 7.9.2001 at about 12.00 p.m., (midnight), in the course of his employment as driver with the second respondent/owner has met with an accident and sustained grievous fracture of left leg in three places and cut injury and other multiple grievous injuries all over his body and that he took treatment as an inpatient from 8.9.2001 to 10.9.2001 at the Madurai Government Rajaji Hospital and thereafter, he took treatment as an inpatient in Preethi Hospital from 10.9.2001 to 11.10.2001 and spent Rs. 40,000/- (Rupees Forty Thousand only) towards medical expenses. (ii) On 7.9.2001 at about 12.00 p.m., the claimant/first respondent/driver in the course of his employment with the second respondent/owner of the auto bearing Registration No. TN-59-J-0954 driving the same near Santhi Nagar Bus stop on the way from Sikkanthar Savadi to Thathaneri in Madurai town and was nearing Santhi Nagar, near Nagajothi Mess, he applied the brake as a result of which the auto got capsized on the side of the road and thus, sustained grievous fracture on his left leg in three places and fracture of left palm and also sustained other injuries all over his body etc., and thereby has suffered a partial permanent disability of 85% and lost his job and therefore claims a sum of Rs. 5,00,000/-(Rupees Five Lakhs only) as compensation. 4. 5,00,000/-(Rupees Five Lakhs only) as compensation. 4. The appellant/National Insurance Company has filed the counter mentioning other things that the accident took place due to the negligent act of the first respondent/claimant and therefore, the appellant is not liable to pay any compensation and that the alleged accident on 7.9.2001 was reported to the Police Station on 2.10.2001 after a delay of twenty five days which creates a doubt about the occurrence and that the alleged injuries are not scheduled injuries as per the Workmens Compensation Act and therefore, the percentage of disability should be assessed through the qualified Medical Practitioner and the same should be the subject matter of reference before the Medical Board and therefore prays for dismissal of the claim petition with costs. 5. Before the Workmens Compensation Commissioner (Tribunal), Dindigul, on the side of the claimant/first respondent, witnesses P.W.1 to P.W.3 were examined and Exhibits P-1 to P-15 were marked. On the side of the respondents, no witness was examined and no documents were marked. 6. Dissatisfied with the award passed by the Workmens Compensation Commissioner, in W.C. No. 18 of 2002 dated 20.8.2003, the second respondent/ National Insurance Company, has filed the present Civil Miscellaneous Appeal as an appellant. 7. The following substantial questions of law were framed at the time of admission of this Civil Miscellaneous Appeal: (1) Whether the Workmens Compensation Commissioner erred in coming to the conclusion that the first respondent had sustained loss of earning power contrary to the provisions of 4(i)(c)(ii) of the Workmens Compensation Acte (2) Whether the Workmens Compensation Commissioner erred in not obtaining the assistance by invoking the provision Section 20(3) of the Workmens Compensation Act to assess the loss of earning powere (3) Whether the Workmens Compensation Commissioner was correct in holding that the appellant is liable to pay the compensation awarded relying on the evidence of P.W.2 who has not properly assessed the disability sustained due to the alleged injuriese 8. Heard the learned counsels for the appellant and the first respondent. 9. Heard the learned counsels for the appellant and the first respondent. 9. According to the learned counsel for the appellant/National Insurance Company, the Workmens Compensation Commissioner has not taken into consideration of the fact that the assessment of P.W.2, the Doctor, is not in accordance with the medical science and that the Workmens Compensation Commissioner has erred in determining the loss of earning power at 70% in spite of P.W.2s assessment of disability at 57% and that the Workmens Compensation Commissioner should have referred the claimant/first respondent to the Medical Board for ascertaining the exact loss of earning power by invoking the Sections 11 and 20(3) of the Act and in any event, the award of Rs. 2,14,491/-(Rupees Two Lakhs Fourteen Thousand Four Hundred and Ninety One only) as compensation is without any basis and therefore prays for allowing this appeal. Findings on the substantial questions of law Nos. (1) and (2): 10. P.W.2, Dr. K.S. Viswanathan, in his evidence before the Tribunal has deposed that he examined the first respondent/claimant on 24.11.2002 by taking X-ray for assessing the disability and that the injured/claimant has received treatment at Madurai Government Rajaji Hospital and at Madurai Preethi Hospital and that he has given treatment to the injured/claimant in the Private Hospital and that the first respondent/claimants left leg tibia bone was broken in two places which was operated upon and that rod was fixed and that the first respondent/claimants right leg fibula bone was broken and the same has been malunited and that plastic surgery was done in both legs of the first respondent/claimant and that the first respondent/claimant has sustained a partial permanent disability of 57% and that he has given Exhibit P.10, disability certificate and that the first respondent/claimant cannot walk straight as before and that with the help of supporting stick, he can walk for all times and that the first respondent/claimants left leg has been shortened by 3 cms., than that of right leg etc. 11. P.W.1, the first respondent/claimant in his evidence has stated that he worked as driver with the second respondent/owner of the vehicle on receipt of monthly sum of Rs. 4,500/- and that the accident occurred on 7.9.2001 and that it is correct to state that he has not given complaint while receiving treatment at Madurai Government Rajaji Hospital and that he has not filed any document in proof of his salary. 12. 4,500/- and that the accident occurred on 7.9.2001 and that it is correct to state that he has not given complaint while receiving treatment at Madurai Government Rajaji Hospital and that he has not filed any document in proof of his salary. 12. P.W.3, Dr. G. Senthil Arumugam, in his evidence has stated that he is filing the twelve pages inpatient treatment notes of the first respondent/claimant which is Exhibit P-15 and that he does not know about the details of the said notes. 13. P.W.2, Dr. K.S. Viswanathan, has assessed the disability of the first respondent/claimant as permanent partial disablement at 57%. 14. The learned counsel for the appellant urges that the Workmens Compensation Commissioner has committed an error in fixing the loss of earning power at 70% contrary to Section 4(i)(c)(ii) of the Workmens Compensation Act, 1923, when in fact, P.W.2, the Doctor has assessed the disability of the first respondent/claimant as 57% as per Exhibit P-10 and that the Workmens Compensation Commissioner has not chosen to refer the matter to a person possessing special knowledge to assist him in holding the inquiry so as to assess the loss of earning power as contemplated under Section 20(3) of the Workmens Compensation Act and therefore, the award passed by him is vitiated in the eye of law. 15. It is pertinent to point out the relevant portion of Section 4 of the Workmens Compensation Act, 1923, in regard to the ‘amount of compensation‘ which enjoins as follows: “ 4. Amount of compensation.- (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely: 16. The learned counsel for the appellant cited the decision in New India Assurance Company Limited v. Bharat Yadav and Another New India Assurance Company Limited v. Bharat Yadav and Another New India Assurance Company Limited v. Bharat Yadav and Another 2002-III-LLJ-97 (Cal): 2003 ACJ 44 , at page 47, wherein it is observed as follows at p. 100 of LLJ: “ 13. True it is that the decision of the single Judge of the Andhra Pradesh High Court in New India Assurance Co. Ltd v. Sammayya New India Assurance Co. Ltd v. Sammayya New India Assurance Co. Ltd v. Sammayya 1997 ACJ 185 (AP), was relied upon by the Division Bench in the above cited case of 2000 ACJ 1138 (Calcutta). True it is that the decision of the single Judge of the Andhra Pradesh High Court in New India Assurance Co. Ltd v. Sammayya New India Assurance Co. Ltd v. Sammayya New India Assurance Co. Ltd v. Sammayya 1997 ACJ 185 (AP), was relied upon by the Division Bench in the above cited case of 2000 ACJ 1138 (Calcutta). The same decision also fell for consideration before the Division Bench of this Court in National Insurance Co. Ltd. v. Susanta Das National Insurance Co. Ltd. v. Susanta Das National Insurance Co. Ltd. v. Susanta Das 2001 ACJ 1047 (Calcutta) and their Lordships came to a conclusion that the decision in New India Assurance Co. Ltd v. Sammayya New India Assurance Co. Ltd v. Sammayya New India Assurance Co. Ltd v. Sammayya ( supra) was not applicable in the case where the doctor gave evidence that the claimant had suffered one hundred per cent loss of earning capacity in para 13 of their decision, their Lordships also viewed that unless there is any evidence as regards actual loss of earning capacity, the Commissioner was not competent to assess the loss of earning capacity of the workman. From the above discussions, it would be noticed that two separate Division Benches of this Hon‘ble Court practically ratified the findings in New India Assurance Co. Ltd v. Sammayya New India Assurance Co. Ltd v. Sammayya New India Assurance Co. Ltd v. Sammayya ( supra) and thereby came to a conclusion that for the purpose of calculating the compensation, it is incumbent upon the learned Commissioner to assess actual loss of earning capacity. While respectfully agreeing with the findings of two Benches of this Court, we come to a conclusion that before passing any order of compensation it is incumbent upon the commissioner to assess the actual loss of earning capacity on the basis of the evidence required under Sections 2(1)(1) and 4 (1) of the Act. Since in this case the qualified medical practitioner did not t assess the actual loss of the earning capacity of the claimant, the learned Commissioner failed to arrive at a just conclusion. Or in other words, the compensation as assessed by the learned Commissioner being opposed to law is not acceptable and it is liable to be set aside.” 17. Since in this case the qualified medical practitioner did not t assess the actual loss of the earning capacity of the claimant, the learned Commissioner failed to arrive at a just conclusion. Or in other words, the compensation as assessed by the learned Commissioner being opposed to law is not acceptable and it is liable to be set aside.” 17. He also relies on the decision in New India Assurance Company Limited v. Sreedharan 1995-II-LLJ-362 (Ker): (1995) ACJ 373, at page 382, wherein it is observed as follows at p. 368 of LLJ: “ 21.Section 20(3) provides that the Commissioner may, for the purpose of deciding any matter referred to him for decision under the Act, choose one or more persons possessing special knowledge of any matter relevant to the matter under inquiry to assist him in holding the inquiry. In United India Insurance Co. Ltd v. Sethu Madhavan United India Insurance Co. Ltd v. Sethu Madhavan United India Insurance Co. Ltd v. Sethu Madhavan 1993 ACJ 1035 (Kerala), it has been held that in view of Section 20(3) of the Act it is idle to contend that the Commissioner has to ipso facto accept the certificate of the doctor prescribing the percentage of loss of earning capacity. What Section 20(3) has provided is that the Commissioner may, for the purpose of deciding any matter referred to him for decision under the Act, choose one or more persons possessing special knowledge of any matter relevant to the matter under him in holding the inquiry of course, under Section 20(3) the commissioner may adopt that mode. But without adopting that mode Commissioner cannot on his own assess the compensation on mere conjecture. The power is there to the Commissioner to refer the workman to any other expert for opinion. Of course, the commissioner can summon the doctor when there is ambiguity in the certificate as to the loss of earning capacity and examine him. The Commissioner can very well refer the applicant to a Medical Board for examination and report. Despite all these powers, to hold that the Commissioner without having recourse to them can assess compensation on his surmises would be too far-fetched. The Commissioner can very well refer the applicant to a Medical Board for examination and report. Despite all these powers, to hold that the Commissioner without having recourse to them can assess compensation on his surmises would be too far-fetched. To sum up the position, we hold that in a case where the report of the qualified medical practitioner certifying the loss of earning capacity alone is there and no other evidence is available the Commissioner cannot ignore the report and fix the compensation disregarding it. In a case where the applicant has produced only the medical certificate and has not produced any other evidence and when the Commissioner has not called for a second medical report or has not cared to send the applicant to be examined by a Medical Board, he cannot just ignore the medical practitioners report and determine the compensation on the basis of his own assessment. The probative value of the report of the qualified medical practitioner will have to be considered on its own along with other evidence, if any. As the Commissioner has assessed the compensation without any data, the matter requires reconsideration by him. The case is remitted to the Commissioner for de novo consideration in accordance with law. Parties are at liberty to adduce further evidence, if they are so advised.” (paras 21 and 22) 18. The learned counsel for the appellant placed reliance on yet another decision in National Insurance Company Limited v. Mubasir Ahmed and Another National Insurance Company Limited v. Mubasir Ahmed and Another National Insurance Company Limited v. Mubasir Ahmed and Another 2007 (1) TN MAC 214, at page 218, wherein the Honourable Supreme Court has inter alia observed as follows: “Loss of earning capacity is, therefore, not a substitute for percentage of the physical disablement. It is one of the factors taken into account. In the instant case the doctor who examined the claimant also noted about the functional disablement. In other words, the doctor had taken note of the relevant factors relating to loss of earning capacity. Without indicating any reason or basis the High Court held that there was 100% loss of earning capacity. Since no basis was indicated in support of the conclusion, same cannot be maintained. Therefore, we set aside that part of the High Courts order and restore that of the Commissioner, in view of the facts situation.” (para 8) 19. Without indicating any reason or basis the High Court held that there was 100% loss of earning capacity. Since no basis was indicated in support of the conclusion, same cannot be maintained. Therefore, we set aside that part of the High Courts order and restore that of the Commissioner, in view of the facts situation.” (para 8) 19. Per contra, the learned counsel for the first respondent/claimant cited the decision in Kerala Minerals and Metals Limited v. Raman Nair 1998-I-LLJ-933 wherein it is observed that ‘loss in the earning capacity had to be calculated in terms of permanent partial disability to which the workman was subjected.‘ 20. It is brought to the notice of this Court by the learned counsel for the first respondent/claimant that the Commissioner/Tribunal has passed an order on 8.12.2003 directing the payment of compensation of Rs. 2,14,491/-(Rupees Two Lakhs Fourteen Thousand Four Hundred and Ninety One only) in one instalment since the appeal time has expired and no proof has been filed to show that appeal has been preferred. 21. It cannot be gainsaid that before passing an order of compensation, the Commissioner/Tribunal is duty bound to assess the actual loss of earning capacity on the basis of evidence required under Section 2(1) and Section 4(1) of the Workmens Compensation Act. Admittedly, the Commissioner appointed under the Workmens Compensation Act is a Tribunal and not a civil Court in the considered opinion of this Court. 22. A perusal of the award dated 20.8.2003 passed in W.C. No. 18 of 2002 by the Workmens Compensation Commissioner/Tribunal, it is quite evident that the Commissioner/Tribunal has observed that ‘on the basis of documents and on seeing the first respondent/claimant directly and taking into consideration of the injuries sustained and primarily relying on the evidence of P.W.2, Dr. K.S. Viswanathan, has determined the loss of earning capacity of the first respondent/claimant at 70%.‘ 23. As far as the present case is concerned, the Commissioner/Tribunal has not referred the first respondent/workman to the Medical Board for expert opinion and report. As a matter of fact, the Commissioner/Tribunal has fixed the loss of earning capacity of the first respondent/claimant at 70% unilaterally contrary to the disability assessed at 57% by P.W.2, Dr. K.S. Viswanathan as per Exhibit P-10. As a matter of fact, the Commissioner/Tribunal has fixed the loss of earning capacity of the first respondent/claimant at 70% unilaterally contrary to the disability assessed at 57% by P.W.2, Dr. K.S. Viswanathan as per Exhibit P-10. In short, the Commissioner/Tribunal in the award has not indicated any reason or basis as to how he has fixed the loss of earning capacity at 70%. In fact, P.W.2, the Doctor in his disability certificate, Exhibit P-10, has not assessed the loss of earning capacity of the workman/driver. Therefore, in the instant case on hand, in a case of non-schedule injury, without the assistance of an expert, the Commissioner/Tribunal ought not to have determined the loss of earning capacity at 70% unilaterally in the considered opinion of this Court. To put it differently, the essential ingredients of the statutory mandate cannot be ignored by any authority. 24. At this stage, it is relevant to mention that when there is a mandatory provision in the Act, the Commissioner/Tribunal is duty bound to observe the same in true letter and spirit. In that view of the matter, this Court comes to the inevitable conclusion that the Workmens Compensation Commissioner/ Tribunal has erred in coming to the conclusion that the first respondent/claimant had sustained loss of earning power contrary to Section 4(i)(c)(ii) of the Workmens Compensation Act and further that the Commissioner/ Tribunal has committed an error in not obtaining the assistance of an expert by resorting to Section 20(3) of the Workmens Compensation Act, 1923 to assess the loss of earning power and the substantial questions of law are answered accordingly. Finding on the substantial question of law No. (3): 25. P.W.2, Dr. K.S. Viswanathan, has assessed the disability of the first respondent/claimant at 57% and has given the disability certificate which is marked as Exhibit P-10. P.W.2, the Doctor admittedly has not assessed the loss of earning capacity. In the case on hand, the Commissioner/Tribunal while assessing the loss of earning capacity has unilaterally arrived at the conclusion disregarding the assessment made by P.W.2, the Doctor. Inasmuch as, P.W.2, Dr. P.W.2, the Doctor admittedly has not assessed the loss of earning capacity. In the case on hand, the Commissioner/Tribunal while assessing the loss of earning capacity has unilaterally arrived at the conclusion disregarding the assessment made by P.W.2, the Doctor. Inasmuch as, P.W.2, Dr. K.S. Viswanathan has not assessed the loss of earning capacity of the first respondent/claimant while issuing the disability certificate Exhibit P-10, this Court comes to the inevitable conclusion that the Commissioner/Tribunal has erred in placing reliance upon the evidence of P.W.2 in assessing the disability sustained by the first respondent/claimant and the substantial question of law is so answered in favour of the appellant accordingly. 26. In fine, this Civil Miscellaneous Appeal is allowed. Resultantly, the award passed by the Workmens Compensation Commissioner, Dindigul, dated 20.8.2003 in W.C. No. 18 of 2002 is set aside to prevent aberration of justice and to promote substantial cause of justice and the matter is remitted to the Workmens Compensation Commissioner, Dindigul, with a direction to consider the claim of the first respondent/claimant afresh strictly in accordance with the relevant provisions of the Workmens Compensation Act and the Rules framed therein, after providing an opportunity to the parties to adduce further evidence if any, at an early date and preferably within three months from the date of receipt of the copy of this order. Consequently, connected C.M.P. No. 316 of 2004 is closed. Having regard to the facts and circumstances of this case, the parties are directed to bear their own costs in this appeal.