Judgment :- (PRAYER: Civil Miscellaneous Appeal filed against the award dated 03.04.2001 passed in WC No.46/2000 on the file of the Workmens Compensation I, Coimbatore.) Being aggrieved by the award of compensation of Rs.1,02,770/- to the first respondent/workman, Food Corporation of India [FCI] has preferred this appeal. .2. Brief facts which are necessary for disposal of this appeal are as follows:- .Respondent was a workman employed by FCI. On 011. 1999, respondent was engaged in unloading food grains bags from Railway Wagon. At that time, in an accident arising in the course of employment, respondent sustained injuries and he lost his two fingers [little finger and ring finger] in the right hand. He was admitted in the hospital and discharged on 11. 1999. At the time of accident, respondent was drawing salary of Rs.2,136/-. The second Respondent is the approved contractor of FCI. Claiming compensation of Rs.2,33,568/-, the first Respondent has filed a Petition under Workmens Compensation Act. .3. Admitting that the accident occurred out of and in the course of employment, FCI has .filed counter stating that the first respondent is carrying on the work as usual and there is no loss of earning capacity and while so, the claim of compensation of Rs.2,33,568/-is on the higher side. In any event, the loss of two fingers on the right hand would result in permanent partial disablement as per Schedule I to Act, 1923 and not any total disablement as alleged by the claimant and therefore, the claimant/workman is not entitled for any compensation. 4. The first Respondent workman examined himself as PW-1. He has neither examined Doctor nor adduced any other evidence. On the side of Management, RW-1 was examined. Attendance Register and Salary Registers were marked as Exs.R-1 to R-12. Upon consideration of oral and documentary evidence, the Deputy Commissioner held that the workman suffered amputation of two fingers and that he is not in a position to carry on work. The learned Commissioner has also taken the view that since there is disablement to carry on the work, referring to Judgment of the Kerala High Court reported in 1998 (1) LLN 902 [Kerala Minerals and Metals Ltd., Kollam and K.Bhaskaran], the Tribunal fixed the percentage of disability at 60% and awarded compensation of Rs.1,02,770/-. 5. The learned Commissioner has also taken the view that since there is disablement to carry on the work, referring to Judgment of the Kerala High Court reported in 1998 (1) LLN 902 [Kerala Minerals and Metals Ltd., Kollam and K.Bhaskaran], the Tribunal fixed the percentage of disability at 60% and awarded compensation of Rs.1,02,770/-. 5. Taking me through the records, the learned Counsel for the Appellant Management submitted that little finger and ring finger of workman were amputated and therefore, percentage of disability is to be as per Schedule I Part II at 20%. 6. The learned Counsel for the Management submitted that only two phalanges of the fingers were lost and therefore, as per Schedule I Part II, percentage of loss could only be 6%. Placing reliance upon 2000 LAB I.C. 2252 [Management of Panchamalai Estate v. D.Gnanasekaran], learned Counsel for the Appellant submitted that when no evidence was adduced to ascertain percentage of disability, the Commissioner erred in fixing the disability at 60%. .7. Supporting the findings of the Commissioner, the learned Counsel for the first respondent/workman has submitted that though loss of two fingers is Scheduled injury, loss of earning capacity has also to be taken into account. It was further submitted that when the claimant/workman was not in a position to carry on his work, the Commissioner was justified in holding that the workman suffered more permanent .disability, fixing it at 60%. It was further submitted that Workmens Compensation Act being a beneficial legislation, if technical objections are to be upheld, the benevolent object of the statute would be defeated. 8. The accident was on 011. 1999 and the fact that first respondent sustained injuries in the course of his employment is not denied. First respondent lost two fingers on his right hand. His little finger and ring finger have been partially amputated. Only percentage of disability and quantum of compensation is challenged. 9. Onbehalf of the Management, it was contended that little finger and ring finger have been partially amputated and the workman has lost two phalanges and therefore, as per Sl.No.36 in Part II of the Schedule I to Workmens Compensation Act, the loss of dependency for loss of two phalanges is 6% for each finger, totaling 12%. 9. Onbehalf of the Management, it was contended that little finger and ring finger have been partially amputated and the workman has lost two phalanges and therefore, as per Sl.No.36 in Part II of the Schedule I to Workmens Compensation Act, the loss of dependency for loss of two phalanges is 6% for each finger, totaling 12%. It was further submitted that in any event, the injury could be construed as loss of two fingers and as per Sl.No.9, Permanent disability could only be 20% and while so, the Commissioner erred in fixing the disability at 60%. 10. The learned Counsel for the Management has further contended that since there was loss of two phalanges on right hand, workman has not suffered any loss of income and he continued to be employed, earning the same income. The accident was on 011. 1999. Management has produced the Attendance Register and Salary Register from April 1998 to October 2000 to show that there was no reduction in the salary of the claimant. 11. The main contention of Management is that there was no loss of earning capacity and therefore, there was no permanent disability. It was also argued that in the absence of any evidence, particularly, non examination of doctor, permanent disability and loss of earning capacity cannot be accepted. The learned Counsel for the Management has stated that the matter was once referred to Lok Adalat and even before the Lok Adalat, the first Respondent/ claimant has not appeared to show that there was actual amputation of the entire little finger and ring finger of the right hand. .12. As rightly submitted by the learned Counsel for the Management, apart from evidence of claimant/workman, there is lack of evidence to fix the loss of earning capacity and permanent disability. Assuming for the sake of arguments that there was amputation of two fingers in the right hand, as per Schedule I Part II, Serial No.9, percentage of earning capacity could only be 20% and the first Respondent/claimant would be entitled to only 1/3rd of compensation amount awarded. 13. Assuming for the sake of arguments that there was amputation of two fingers in the right hand, as per Schedule I Part II, Serial No.9, percentage of earning capacity could only be 20% and the first Respondent/claimant would be entitled to only 1/3rd of compensation amount awarded. 13. Submitting that Workmens Compensation Act is a beneficial legislation, the learned Counsel for the first respondent/workman interalia raised the following contentions :- (1)Workmens Compensation Act is to provide security to the workman who sustained partial disability and therefore, loss in the earning capacity has to be calculated in terms of permanent partial disability and need not be restricted to the Schedule; (2)Considering loss of earning capacity in case of permanent partial disablement, comparison between wages drawn by the workman before and after the accident from his employer at the time of accident is not a determinative factor; (3)Even in the absence of medical evidence, determining disability at 60% cannot be held to be arbitrary. .14. The learned Counsel for the first respondent placed reliance upon 1993 (2) LLN 685 [Tamil Nadu Cements Corporation Ltd. Ariyalur Works, Ariyalur and N.Jayapalan], wherein Court has held as under :- ."Merely because the employer pays the same salary to the workman, it cannot be stated that there is no loss of earning capacity. If the law were to be so, the employer can easily evade the provisions of the Act by continuing the employment on the same terms as were enjoyed by the workman prior to the accident. 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 result in the negation of the beneficial provision of the Act. Further, if the management winds up its business, the workman will be in the lurch because no person will give employment to a person who had suffered the injury. .15. In 2000 LAB I.C. 2252 [Management of Panchamalai Estate v. D.Gnanasekaran], Court has held "Claim for compensation cannot be denied on mere ground that .workman was drawing same amount of salary after the accident." .16. The learned Counsel for the first respondent has submitted that permanent disability should not be calculated in reference to the present capacity but must also extend to future earning capacity. The learned Counsel for the first respondent has submitted that permanent disability should not be calculated in reference to the present capacity but must also extend to future earning capacity. In support of his contention, the learned Counsel also placed reliance upon 1988 (1) LLN 393 [Sree Lalithambika Enterprises, and S.Kailasam], wherein Justice Mohan has held : ."10. Coming to the scope of S.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 at 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 [AIR 1964 Punjab 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 had suffered an injury of this kind". 17. Contending that loss of earning capacity in respect of workman is to be determined with reference to his normal avocation, the learned Counsel for the first respondent workman has placed reliance upon 1996 (2) LLN 756 [United India Insurance Company Ltd. v. Balmat Singh @ Balwant Singh and another]. In the said decision, "the question as to whether a particular claimant has suffered partial disablement or total disablement should depend upon the nature of employment and further, if in an given case alternative employment is given by the same employer that a factor can be taken into account" came up for consideration. Madhya Pradesh High Court has held that compensation should be awarded minimum compensation without proof of loss of earning capacity. Madhya Pradesh High Court has held that compensation should be awarded minimum compensation without proof of loss of earning capacity. But the claimant is not debarred from proving that he has suffered higher percentage of loss of earning capacity. 18. In the present case, though it is a case of amputation of two fingers in the right hand, there is total lack of evidence, proving loss of earning capacity. Placing reliance upon 2003 (3) LLN 919 [New India Assurance Company Ltd. and Mohd. Aslam and another], it was contended that even without report of medical practitioner, Commissioner could determine disability relating to the assessment of earning capacity on account of the injuries received by the workman. 19. The above contention does not merit acceptance. In respect of specific instances, the claimant is entitled to compensation as per percentage of disability stipulated in Schedule I Part II, without any proof. But claimant is not debarred from proving that he has suffered higher percentage of loss of earning capacity. As discussed earlier, in the earlier case, the workman has not adduced any evidence proving that he had suffered higher percentage of loss of earning capacity. There is lack of evidence to show that he suffered reduction in loss of earning capacity or income. 20. Since little finger and ring finger of right hand are alleged to be amputated, which is itemized injury in Part II of Schedule I, Sl.No.9, loss of earning capacity is 20%. If the injury received by the workman is a Scheduled injury, minimum of compensation which the workman would be entitled to claim would commensurate with the deemed loss of earning capacity as indicated in the Schedule. The first Respondent claimant would be entitled to only 1/3rd of compensation awarded by the learned Commissioner. 21. Fixing of total disability and loss of earning capacity is no doubt a question of fact. But where a finding of fact by the Commissioner without materials is a surmise, it becomes the question of law. I am of the considered view that materials on record would not reasonably lead to fixing the permanent disability at 60%. As the injury sustained by the claimant is a scheduled injury, loss of permanent disability has to be as per the Schedule I Part II i.e. 20%. 22. I am of the considered view that materials on record would not reasonably lead to fixing the permanent disability at 60%. As the injury sustained by the claimant is a scheduled injury, loss of permanent disability has to be as per the Schedule I Part II i.e. 20%. 22. Compensation amount payable to the claimant is reduced to Rs.34,256.60 i.e. 1/3rd of Rs.1,02,770/- ordered in W.C.No.46/2000 and this CMA is partly allowed. It is stated that the first respondent claimant had already withdrawn 50% of the compensation amount deposited. If that be so, the appellant management shall not proceed to recover the excess amount withdrawn by the first respondent/claimant. Excess amount lying to the credit of WC No.46/2000 shall be refunded along with accrued interest to the appellant/ Food Commissioner of India. No costs.