JUDGMENT 1. Being aggrieved by the award made in W.C. No. 274 of 2004, dated 19.12.2005 on the file of the Commissioner for Workmen‘s Compensation-2/Deputy Commissioner of Labour-2, Chennai, the appellant-Insurance Company has filed this appeal. 2. According to the respondent/applicant, he was working as a Casual Labourer under the 1st Opposite Party and that on 11.3.2003, while he was working at the factory, fell down and sustained fracture of both his legs. He was treated as inpatient in Stanley Medical College Hospital, Chennai, for two days. On the compulsion of his employer, he was discharged against medical advice and took treatment in a private hospital. , At the time of accident, he was 25 years old. Due to the fracture, he has lost his job. He claimed compensation of Rs. 4,00,000/-. 3. The second opposite party, the appellant-Insurance Company denied the manner of accident and the employment of the applicant. They put the applicant to prove the accident, nature of injuries and also as to whether the accident arose out of and in the course of employment. Without prejudice to the above, they disputed the age, occupation and wages of the applicant. 4. Before the Commissioner for Workmen‘s Compensation, the respondent examined himself as A.W.1 and A.W.2 is the Doctor, who examined the applicant, with reference to medical records. Exhibit P-1 - Discharge Summary, Exhibit P-2 - Insurance Policy, Exhibit P-3 - Legal Notice, Exhibit P-4 - Disability Certificate and Exhibit P-5 - X-Ray have been marked on the side of the respondent/applicant. On behalf of the 2nd opposite party, two witnesses were examined as R.Ws.1 and 2. Exhibit R-1 - Investigation Report, Exhibit R-2 - Letter of the respondent/applicant, dated 3.3.2004, Exhibit R-3 - Letter of authorisation of the Insurance Company to investigate and Exhibit R-4 - Insurance Policy have been marked on side of the appellant-t Insurance Company. 5. On evaluation of pleadings and evidence, the Commissioner for Workmen‘s Compensation, Chennai-2, held that the respondent/applicant was an employee of the 1st opposite party, on the date of accident and that the accident arose out of and during the course of employment and considering the age, avocation and by applying the formula, provided under the Act, awarded Rs. 2,24,618/- as compensation. 6. Being aggrieved by the award, Mr. 2,24,618/- as compensation. 6. Being aggrieved by the award, Mr. D. Bhaskaran, learned counsel for the appellant-Insurance Company submitted that the Commissioner has failed to note that there was no employer-employee relationship between the applicant and the first opposite party. He further submitted that as per Exhibit R-2 - Letter of the respondent/applicant, dated 3.3.2004, the applicant was an employee of Lakshmi Engineering Works and not the 1st opposite party. It is the further contention that the alleged incident has occurred only when the respondent/applicant was doing fabrication work for his employer, Lakshmi Engineering Works and that therefore, there is no casual connection between the alleged accident and work. 7. Learned counsel for the appellant further submitted that the Commissioner for Workmen‘s Compensation, has failed to consider that Exhibit R-4 - Insurance Company, covers only for 10 casual labourers and that too, in respect of those, who were engaged in cleaning, loading and unloading of onions and other agriculture products and not fabrication works. He therefore submitted that considering the oral and documentary evidence let in, on behalf of the appellant-Insurance Company, the Commissioner for Workmen‘s Compensation, ought to have held that the alleged incident was in no way connected with the employment of the respondent/applicant and hence, the appellant-Insurance Company is not liable to pay any compensation. He also added that if there was any accident, as alleged, an FIR would have been lodged and since no FIR has been filed, the Commissioner ought to have rejected the claim in entirety. 8. Without prejudice to the above, learned counsel for the appellant-Insurance Company also submitted that the Commissioner for Workmen‘s Compensation, ought to have referred the applicant to a Medical Board, as per Section 11 of the Workmen‘s Compensation Act and that he cannot estimate the compensation on the sole basis of disability certificate issued by P.W.2, Doctor. He also submitted that all disabilities would not result in loss of earning capacity and therefore, there should have been a reference to a Medical Board. 9. Per contra, it is the contention of the learned counsel for the respondent/applicant that the relationship of employer-employee has been established before the Commissioner for Workmen Compensation and in the absence of any perversity, the finding of fact cannot be adjudicated, as a substantial question of law, under Section 30 of the Workmen‘s Compensation Act. 9. Per contra, it is the contention of the learned counsel for the respondent/applicant that the relationship of employer-employee has been established before the Commissioner for Workmen Compensation and in the absence of any perversity, the finding of fact cannot be adjudicated, as a substantial question of law, under Section 30 of the Workmen‘s Compensation Act. In this context, he invited the attention of this Court to the extensive cross-examination of the applicant, on the aspect of employer-employee relationship and submitted that the applicant has stoutly denied the suggestion made by the appellant-Insurance Company and for the reasons stated supra, prayed to dismiss the appeal in limini. 10. As regards the nature of injuries and extent of disability, learned counsel for the applicant submitted that sufficient medical evidence, Exhibit P-1 - Discharge Summary and Exhibit P-5 - X-Rays, have been marked before the Commissioner for Workmen‘s Compensation Act and P.W.2, Doctor, who examined the applicant, with reference to medical records, has categorically deposed that respondent/applicant has sustained two fractures in the leg, limping at the time of physical examination and that there was a malunion of fractured bones and accordingly, issued Exhibit P-4 - Disability Certificate, assessing the disability at 45%. 11. Learned counsel for the respondent/applicant also submitted that though P.W.2, Doctor, has issued Exhibit P-4 - Disability Certificate and not assessed the loss of earning, that would not preclude the Commissioner for Workmen‘s Compensation, to assess the loss of earning capacity, by considering the nature of injuries, medical evidence, with co-related to the nature of work, in which, the workman was engaged, prior to the accident. He also submitted that the contention that the Commissioner cannot make any assessment, regarding loss of earning capacity, without reference to Medical Board, should be rejected. 12. Refuting the contention of the appellant-Insurance Company that since police complaint has been given and that therefore, on that score, the claim itself ought to have been rejected, learned counsel for the respondent/applicant submitted that when the 1st opposite party had accepted that he would take responsibility for the accident, no complaint was lodged. According to the learned counsel, evidence to the effect has also been considered by the Commissioner and that the said objection has been overruled. 13. According to the learned counsel, evidence to the effect has also been considered by the Commissioner and that the said objection has been overruled. 13. Lastly, on the question of insurance coverage of casual labourers, engaged in loading and unloading of products and on the contention that :he applicant was engaged in fabrication works, for another person, Lakshmi Engineering Works and that therefore, the appellant-Insurance Company is not liable to pay compensation, both on the ground of not establishing employer-employee relationship and the nature of work covered under Exhibit R-4 - Insurance Policy, learned counsel for the respondent/applicant submitted that the said contention is also liable to be rejected for the reason that, on the fateful day, when the accident had occurred, the injured was arranging the baskets, thus engaged in the work, covered under the policy and thus, the relationship of employer-employee has also been proved. 14. As regards Exhibit R-3, Letter of the respondent/applicant, dated 3.3.2004, claimed to have been sent to the appellant-Insurance Company by the appellant, based on which, a contention has been made by the Company that the accident occurred only when he was doing fabrication works for his employer, Lakshmi Engineering Works, learned counsel for the respondent/applicant submitted that the said letter has not been put across the applicant during his examination. According to him, there was not a suggestion about the contents of the said letter to the applicant and therefore, when the oral testimony of the applicant, regarding the employer-employee relationship and the nature of work, in which, he was engaged, remained unshattered, no weightage should be given to the said letter. 15. In this context, learned counsel also drew the attention of this Court to the oral testimony of the respondent/applicant before the Commissioner of Labour to the effect that on 11.3.2003, that when he arranging the baskets in the premises of Ramasamy Exports and Imports Pvt. Ltd., the 1st opposite party, he fell down from a height of 20 feet and sustained injuries. According to him, without there being any cross-examination, it is not open to the appellant-Insurance Company to deny the employer-employee relationship. He also submitted that no credence can be given to Exhibit P-3, Investigation Report and also to the oral testimony of R.W.1/Investigator of the appellant-Insurance Company, in the absence of examining those, from whom, he had collected some information. 16. He also submitted that no credence can be given to Exhibit P-3, Investigation Report and also to the oral testimony of R.W.1/Investigator of the appellant-Insurance Company, in the absence of examining those, from whom, he had collected some information. 16. Heard the learned counsel for the parties and perused the materials available on record. 17. Perusal of the material on record shows that the respondent/applicant has let in evidence, reiterating the manner of accident and that he has also marked Exhibit P-1, Discharge Summary and Exhibit P-5 - X-Ray to prove that he had sustained injuries. Exhibit P-3 is the Notice, dated 24.6.2004 issued by the learned counsel for the respondent/applicant to Ramasamy Exports and Imports (P) Ltd., 1st Opposite Party, stating that when the applicant was working as labourer, he fell down from a height of 15 feet and sustained grievous injuries and therefore, the first opposite party was called upon to pay compensation. 18. As rightly contended by the learned counsel for the respondent/applicant that though evidence has been let in, through R.W.1, Investigator, by marking Exhibit R-1, Investigation Report, as well as Exhibit R-2 - Letter, dated 3.3.2004, there is no cross-examination by the Company, regarding the nature of work, said to have been performed on 11.3.2003, by the respondent/applicant. From the perusal of the order, it could be seen that under Exhibit R-3 - Letter of authorisation issued by the appellant-Insurance Company to R.W.1 to conduct investigation and accordingly, after investigation, he has submitted a report. Admittedly, he has not witnessed the accident. During the course of cross-examination, before the Commissioner under the Workmen‘s Compensation Act, by the 1st opposite party, the said Investigator, R.W.1, has deposed that the accident never occurred at the place of the 1st opposite party. At this juncture, it is worthwhile to extract his oral testimony, 19. But, during the cross-examination by the respondent/applicant, the Investigating Officer has contradicted his own version, regarding place of accident, as follows: 20. At this juncture, it is worthwhile to extract his oral testimony, 19. But, during the cross-examination by the respondent/applicant, the Investigating Officer has contradicted his own version, regarding place of accident, as follows: 20. Perusal of Exhibit R-1, Investigating Report, shows that when the investigating team had visited the place of accident, they have met one Ramachandran, in-charge of the Godown, the Investigation Officer has observed that the said Godown height would be around 40 feet and that the elevated platform height would be 10 feet and for this, M.S. Metal steps were fixed and that the platform was welded with iron grills to keep the Bamboo baskets. In his report, the Investigation Officer has also recorded that during discussion with the person incharge and others, it was stated that while the injured was unloading baskets from the platform, he shipped and fell down. It is also the version of the Investigator in his report that when one Ramachandran was asked to give the same in writing, he has refused to do and requested the Inspection Team, to get it from the head office. Though this Court is not inclined to give weightage to the report, for the reason that the said report is based on materials collected from persons, without there being any opportunity to the claimant to cross-examine them, in the case on hand, upon perusal of the oral testimony and the abovesaid report, it is evident that R.W.1, Investigatory has not only let in contradictory evidence, with reference to the place of accident and Ramachandran, in-charge of the godown, whom he had enquired seemed to have told him that the accident had happened only at Ramasamy Exports, when the applicant was unloading baskets. The appellant-Insurance Company has not let in any categorical evidence to prove that on the date of accident, the respondent/applicant was engaged only in fabrication work, except filing of Exhibit R-3, a letter said to have been written by the respondent/applicant to the appellant-Insurance Company, which is disputed by the learned counsel for the applicant. 21. As seated supra, there was no cross-examination by the appellant-Insurance Company, with reference to the categorical assertion of the applicant that the accident occurred on 11.3.2003 in Ramasamy Exports, when he was arranging the baskets. At this juncture, it is also worthwhile to extract the deposition of the respondent/applicant, 22. 21. As seated supra, there was no cross-examination by the appellant-Insurance Company, with reference to the categorical assertion of the applicant that the accident occurred on 11.3.2003 in Ramasamy Exports, when he was arranging the baskets. At this juncture, it is also worthwhile to extract the deposition of the respondent/applicant, 22. Though the appellant-Insurance Company has placed strong reliance on Exhibit R-2, letter, dated 3.3.2004, said to have been written by the respondent/applicant, persual of the cross-examination of the applicant shows that there is not even a suggestion to the applicant, as to whether the said letter was written by him or not. Had there been any suggestion, the respondent/applicant would have either denied or accepted the letter and the contents, thereof. In the absence of examining the applicant as to whether he had authored the said letter and its contents thereof, the same cannot be put against the applicant/respondent, particularly, when the letter itself is denied by the learned counsel for the respondent. In such view of the matter, this Court is not inclined to give weightage to the said letter and disbelieve the case of the respondent/applicant. 23. The next question to be considered, as to whether the policy taken by the 1st opposite party for the period between 2.8.2002 and 1.8.2003 (Policy No/500611/41/02/8601133) would cover the respondent/applicant. As per the policy, it covers labourers engaged in clearing, loading and unloading of onions and other agricultural products. 24. Perusal of the evidence and the award shows that the 1st opposite party himself has admitted that the respondent/applicant sustained injuries at the time, when he was working in Ramasamy Exports as a casual labourer. The employment is admitted. Evidence is also adduced to the effect that the respondent/applicant fell down, while he was arranging baskets. It could be presumed that the baskets were meant only to store onions and other agricultural products, when the 1st opposite party is stated to be an exporter in such goods. Therefore, the respondent/applicant is also covered under the Workmen‘s Compensation Act. 25. The only question remains to be considered, is whether the Commissioner under the Workmen‘s Compensation Act, is empowered to assess the loss of earning capacity, without reference to Medical Board, as per the provisions of the Workmen‘s Compensation Act. Therefore, the respondent/applicant is also covered under the Workmen‘s Compensation Act. 25. The only question remains to be considered, is whether the Commissioner under the Workmen‘s Compensation Act, is empowered to assess the loss of earning capacity, without reference to Medical Board, as per the provisions of the Workmen‘s Compensation Act. Though P.W.2, Doctor, who examined the respondent/applicant, has categorically denied that he has not assessed the disability exorbitantly and also deposed that the respondent/applicant can do work only in the sitting position and during cross-examination, he has fairly admitted that loss of earning capacity has not been assessed. 26. Section 4 of the Workmen‘s Compensation Act deals with the amount of compensation, as follows: “4. Amount of compensation: (1) Subject to the provisions of this Act the amount of compensation shall be as follows namely :- where death results from the injury an amount equal to fifty per cent of the monthly wages of the deceased workman multiplied by the relevant factor; or an amount of fifty thousand rupees whichever is more; where permanent total disablement results from the injury an amount equal to sixty per cent of the monthly wages of the injured workman multiplied by the relevant factor; or an amount of sixty thousand rupees whichever is more. Explanation I : For the purpose of Clause (a) and Clause (b) relevant factor in relation to a workman means the factor specified in the second column of Schedule IV against the entry in the fits column of that Schedule specifying the number of years which are the same as the completed years of the age of the workman on his birthday immediately preceding the date on which the compensation fell due; Explanation II : Where the monthly wages of a workman exceed two thousand rupees his monthly wages for the purposes of clause (a) and clause (b) shall be deemed to be two thousand rupees only;” 27. The injury sustained by the respondent/applicant does not fall under the Schedule. Therefore, loss of earning capacity has to be necessarily assessed. Section 11 of the Workmen‘s Compensation Act, is extracted hereunder: “11. The injury sustained by the respondent/applicant does not fall under the Schedule. Therefore, loss of earning capacity has to be necessarily assessed. Section 11 of the Workmen‘s Compensation Act, is extracted hereunder: “11. Medical examination (1) Where a workman has given notice of an accident he shall if the employer before the expiry of three days from the time at which service of the notice has been effected offers to have him examined free of charge by a qualified medical practitioner submit himself for such examination and any workman who is in receipt of a half-monthly payment under this Act shall if so required submit himself for such examination from time to time: Provided that a workman shall not be required to submit himself for examination by a medical practitioner otherwise than in accordance with rules made under this Act or at more frequent intervals than may be prescribed.” 28. Though the learned counsel for the appellant-Insurance Company submitted that mere fracture of bones and its reunion will not amount to permanent and total disablement or permanent partial disablement, as the case may be and that all the injuries do not result in permanent disablement, in the case on hand, there is a specific evidence of P.W.2, Doctor, that the respondent/applicant has suffered disablement. The Commissioner under the Workmen‘s Compensation Act, is empowered to assess the loss of earning capacity, without there being any reference to the Medical Board. Reference to a Medical Board is an aid for assessment of loss of earning capacity. 29. In Kaluram Rathore v. Neelam Chand Kirar 2004 (2) TNMAC 16 (FB) (MP), a Full Bench of the Madhya Pradesh High Court, has held as follows: “10. Schedule I of the Workmen‘s Compensation Act relates to injuries under Sections 2(1) and 4 of the Workmen‘s Compensation Act. Schedule I, Part I relates to 100 percent loss of earning capacity in the cases of permanent total disablement. Part II relates to injuries deemed to result in permanent partial disablement. In the Schedule, 48 types of injuries causing permanent and partial disablement pertaining to different parts of body are mentioned. Note is appended below the schedule which mentions that complete and permanent loss of the use of any limb or member referred to in this schedule shall be deemed to be the equivalent to the loss of that limb or member. Note is appended below the schedule which mentions that complete and permanent loss of the use of any limb or member referred to in this schedule shall be deemed to be the equivalent to the loss of that limb or member. Note is clear where there is permanent loss of use of limb, disability will be 100 percent and the injuries of permanent loss of those limbs which fall in Part I of the schedule. However, percentage of loss shall not be higher than what has been mentioned in Part II regarding partial disablement. In the cases of complete and partial loss of use of any limb or member, it will amount to loss of use of that limb or member. Thus, the Legislature‘s intent is clear and Court should determine percentage of loss of earning capacity from the nature of injuries mentioned in the Schedule. Even otherwise, doctor‘s statement determining the loss of disability should be based upon scientific tests. If no scientific tests are conducted, then the Court may safely record the percentage of disability from Schedule of the Workmen‘s Compensation Act. Percentage of loss determined in the Schedule of Workmen‘s Compensation Act will be sufficient to determine the nature of disability and amount of compensation can be calculated by applying the multiplier mentioned in the Schedule under Section 163-A of the Act. It may be mentioned that mere fracture of bones and its re-union will not amount to permanent total disablement or permanent partial disablement, unless the doctor has examined the claimant (and assessed the percentage of disability after performing scientific tests. Without performing scientific; tests bald statement of the doctor and certificate is inadmissible in evidence. Visual opinion of doctor has no evidentiary value. Claims Tribunals. therefore, must assign reasons in arriving at the conclusion about the percentage of loss of income in the case of permanent partial disablement. Therefore, for determining the nature of permanent disability, there must be sufficient evidence on record to determine total or partial disablement. In the absence of evidence regarding scientific tests to determine the percentage of disability. Claims Tribunals should take guidance from the Schedule of Workmen‘s Compensation Act to determine the percentage of loss and shall apply multiplier on the basis of loss of income of the injured.” (emphasis supplied) 30. In the absence of evidence regarding scientific tests to determine the percentage of disability. Claims Tribunals should take guidance from the Schedule of Workmen‘s Compensation Act to determine the percentage of loss and shall apply multiplier on the basis of loss of income of the injured.” (emphasis supplied) 30. Now reverting back to the case on hand, perusal of the testimony of P.W.2, Doctor, does not disclose that the assessment of disablement was determined, without any physical examination. No suggestion has been made to him that he had not performed any scientific tests before issuing the disability certificate. On the other hand, P.W.2, has categorically stated that he had physically examined the applicant on 25.8.2005 and assessed the extent of disablement in the limb. 31. Only in a case where there is no sufficient evidence on record to determine partial and permanent disablement, as the case may be, guidance from the Schedule given under the Workmen‘s Compensation Act to determine the percentage of loss, need be taken. In the case on hand, during the cross-examination, P.W.2, Doctor, has also admitted that the assessment was based on the guidelines provided under the Workmen‘s Compensation Act, but he has not enclosed the guideline‘s prescribed by the Central Government, along with the disability certificate. He has also deposed that no lab test was conducted. Enclosure of guidelines prescribed by the Central Government for assessment of permanent disablement along with the disability certificate, is not a requirement. 32. Laboratory tests are meant only to find out whether there is any change in the composition of blood, urine, etc., to find out any possible change in the functioning of the vital organs of the body and that the same may not be relevant in the case on hand, where the fracture sustained, is in the leg. Certainly, there may be a requirement to perform the lab tests, if there was any injury, affecting the functioning of liver, chest, urinary, head and such other vital parts of the body, where laboratory tests could be of some assistance, with reference to the changes in the whole body system, resulting in whole body disablement to do the work. 33. As stated supra, there was not even a suggestion to P.W.2, Doctor, that he had not conducted any scientific tests. 33. As stated supra, there was not even a suggestion to P.W.2, Doctor, that he had not conducted any scientific tests. When the Doctor has physically examined the applicant and also asserted that his assessment was on the guidelines prescribed under the Workmen‘s Compensation Act, there is no reason as to why his testimony should be rejected. 34. In New India Assurance Company v. Tmt. Ponnammal 2005 ACJ 149 , brick loading workers, who sustained injuries in an accident, claimed compensation. The Doctor, who examined them, issued disability certificates. On the basis of the same, the Commissioner for Workmen Compensation, assessed the loss of earning capacity and accordingly, awarded compensation in respect of the claimants. It was contended that loss of earning capacity can be assessed by Doctor and in the absence of such material evidence, the amount arrived by the Deputy Commissioner cannot be sustained. Per contra, justifying the award passed by the Commissioner for Workmen‘s Compensation, the learned counsel for the respondent-loadman, has contended that the determination of the loss of earning capacity, by considering the nature of injuries sustained by the loadmen, disability certificate issued by the qualified Doctor, there was no jurisdictional error committed by the Commissioner for Workmen‘s Compensation and therefore, there is no substantial question of law for interference. The Division Bench of this Court, while rejecting the said contention, has stated as follows: “After perusing the relevant statutory provisions, the evidence of the applicants, Doctors, wound certificate, disability certificate etc., and the discussion of the Deputy Commissioner, we are unable to accept the said contention.” 35. After considering the material on record, with reference to the statutory provisions, the Division Bench, at Paragraphs 16 to 19, held as follows: “16. It is seen from the above provision, in the case of injury not specified in Schedule I, compensation has to be determined in proportion to the loss of earning capacity permanently caused by the injury. No doubt, the assessment has to be made, based on the evidence/certificate of the medical practitioner. In the above appeals, we have verified the evidence of the injured - applicants and the evidence of Dr. R. Kandasamy in WC. Nos. 58 to 60 and 173 of 1992 and Dr. Madhumathi in WC. No. 197 of 1996. No doubt, the assessment has to be made, based on the evidence/certificate of the medical practitioner. In the above appeals, we have verified the evidence of the injured - applicants and the evidence of Dr. R. Kandasamy in WC. Nos. 58 to 60 and 173 of 1992 and Dr. Madhumathi in WC. No. 197 of 1996. We also verified the wound certificates, physical disability certificates etc., Though the Deputy Commissioner has assessed the loss of earning capacity in respect of the applicants, it cannot be concluded that without an acceptable evidence he had assessed the same, as argued by the learned counsel for the appellant, in such a circumstance, we are of the view that the Deputy Commissioner has not contravened Section 4(1)(c)(ii) as well as Explanation II. In the case of unspecified injury resulting in permanent / partial disablement, it is not possible for a normal workman to establish his loss of earning capacity by his prospects or the offers to him in the open labour market. In such a circumstance, the Commissioner has to do in discharge of his judicial functions, is to assess the loss of earning capacity of the workmen, (i) in the light of the medical report; and (ii) on the basis of A. his own estimate of the workman‘s possibilities of employment in the open labour market; and E. similar other relief factors. 17. Where the Commissioner has to deal with cases of permanent partial disablement inflicted by injuries which are not scheduled, the provisions of Section 4(1)(c)(ii) of the Act are attracted, and the Commissioner has to assess the compensation in terms of those provisions. In assessing the compensation in such cases, the most important and paramount thing that the Commissioner has to consider, is the loss of earning capacity. He has to consider, (i) the nature of work that a workmen has to do; (ii) the nature of the injury; and (iii) other environmental circumstances. The principles upon which the loss of earning capacity under Section 4(1)(c)(ii) have to be determined are, 1. Loss of physical capacity is not coextensive with loss of earning capacity. 2. Loss of earning capacity is not coextensive with loss of physical capacity. 3. The principles upon which the loss of earning capacity under Section 4(1)(c)(ii) have to be determined are, 1. Loss of physical capacity is not coextensive with loss of earning capacity. 2. Loss of earning capacity is not coextensive with loss of physical capacity. 3. There may be cases where even the loss of physical capacity may be of such nature as to make it abundantly clear that there has been large, if not complete, loss of earning capacity even though there has been no immediate reduction in wages. Medical evidence by itself is not conclusive or decisive factor in the loss of earning capacity. It can only establish the nature of disablement or the physical injury. But to what extent the physical disablement causes loss of earning capacity is not for medical evidence to state. It is for the Commissioner to settle in case of a dispute between the parties, and such settlement can only take placed upon the basis that- (a) there has been a loss of earning capacity caused by the said injury, and (b) the estimate that should be made of such loss of earning capacity, should be proportionate to the loss of earning capacity caused by the injury. 18. it is settled in series of decisions that the determination of the loss of earning capacity of a man/woman is a question of fact and is at the same time not a very easy matter. Where the case is not one of a scheduled injury, the reduction in earning capacity will have to be proved as a fact. The loss of earning capacity is not necessarily co-extensive with the loss of physical capacity. Undoubtedly, when Doctors disagree, the Judge has to exercise his own decision. The Act is not interested in mere physical disability. No compensation can be granted for any physical disability unless there was loss of earning capacity. In the case of non scheduled injury, the loss of earning capacity am not be proved by mere medical evidence. It must be proved by evidence, which will establish that the workman was, as a result of the injury, unable to earn as much as he did before. This is a question of fact and has to be proved by evidence like any other question of fact. It must be proved by evidence, which will establish that the workman was, as a result of the injury, unable to earn as much as he did before. This is a question of fact and has to be proved by evidence like any other question of fact. There can be no doubt that medical evidence as its own value in calculating the capabilities of the man both before and after the accident. But it has been pointed out in several cases that the arbitrator, namely, Commissioner should not attach too much importance to this evidence nor decide the case solely on the case of such witness. The Doctors very well estimate the loss of physical capacity for work, but the loss of earning capacity must be estimated by some other person. The best estimate that can be given is by those people who would have the opportunity of seeing the workman work before and after the accident. The workmen Compensation Act is not concerned with physical injury as such nor with the mere effect of such injury on the physical system of the workmen, but it is concerned only with the effect of injury or .of the diminution of the physical powers caused thereby on the earning capacity of the affected workman. To what extent the earning capacity has been affected, it can never be for a medical witness to say. Medical evidence is opinion evidence and it is only with regard to the physical aspect of the injuries that the opinion of a medical witness is relevant and admissible as the opinion of an expert. But, the loss of earning capacity is not a matter of medical opinion and is not a matter to which a medical witness can possibly speak. The loss of earning capacity is not necessarily co-extensive with the loss of physical capacity and certainly the former does not prove the latter. 19. In the light of the above discussion and in view of the statutory provisions, more particularly, Section 4(1)(c)(ii) and Explanation II, as well as the evidence of the applicants, experts, namely, Dr. R. Kandasamy and Dr. Madhumathi, wound certificates and disability certificates etc., we are satisfied that there is no valid ground for interference. We have already held that assessment of the loss of earning capacity is a question of fact and the same depends upon the factual materials placed before the Authority. R. Kandasamy and Dr. Madhumathi, wound certificates and disability certificates etc., we are satisfied that there is no valid ground for interference. We have already held that assessment of the loss of earning capacity is a question of fact and the same depends upon the factual materials placed before the Authority. In the light of the first proviso to Section 30 of the Act, we do not find any substantial question of law for interference in these appeals. ‘We have already referred to the fact that the appellant has not raised any other contention, except the question relating to the loss of earning capacity.” 36. In the abovesaid circumstances, following the decisions stated supra, this Court is of the view that the quantum of compensation has rightly been assessed. 37. In view of the above discussion, this Court is of the view that there is no manifest illegality committed by the Commissioner under the Workmen‘s Compensation Act, in awarding a reasonable compensation on the basis of the disability assessed by P.W.2, Doctor. Hence, the Civil Miscellaneous Appeal is dismissed. The respondent/applicant is permitted to withdraw the compensation, by making necessary application before the Commissioner. No costs. Consequently, connected miscellaneous petition is also closed. Appeal dismissed.