JUDGMENT: 1. This appeal under Section 30 of the Workmen’s Compensation Act, 1923, has been preferred by the insurance company challenging the judgment and award dated 18.03.2005, passed by the Commissioner, Workmen’s Compensation, Nagaon in W.C. Case No. 55/2002. By that judgment and award, the learned Tribunal directed the insurance company to make payment of Rs. 2,65,205/- to the claimant along with interest at the rate of 12% per annum from the date of filing of the claim petition till realisation. 2. One Abu Bakkar Siddique, as claimant, instituted N.W.C. Case No. 55/2002 before W.C. Commissioner, Nagaon stating that he was a labourer under Kailash Gagger (O.P. No. 1) in respect of a truck bearing registration No. AS-02A-1449. On 28.01.2002 while the truck was moving along with load of brick making materials it met with an accident at Rowmari village at about 3.30 pm. The vehicle capsized on the road side as a result of which the claimant received injuries. He was taken to Nagaon Civil Hospital and diagnosed to have suffered compound comminuted fracture of right femur. In this connection the traffic police of Nagaon made G.D. Entry No. 585 dated 28.01.2002. 3. On being summoned, the OP No. 1 owner appeared but did not deny the accident and employment of the claimant. He disclosed that the vehicle was under insurance coverage of the Oriental Insurance Company Limited which was impleaded as OP No. 2. The OP No. 2, on the other hand, denied the liability as a whole. Under such circumstances, the W.C. Commissioner framed 4 issues as follows:- (1) Is there any cause of action for this claim petition? (2) Is the claim petition maintainable in its present form? (3) Is the disablement of the claimant was caused in course of and arising out of his employment and whether the OP’s are liable? (4) If so, what relief the claimant is entitled to? 4. The claimant examined himself as PW 1 and one Dr. KP Goswami as PW 2. It was claimed by the claimant that he was about 40 years of age at the time of accident and that he was getting monthly wage of Rs. 3000/- from the owner. The PW 2 also deposed in the same breadth and proved injury certificate. According to him, the workman suffered physical disablement to the extent of 50% for which his earning capacity was reduced by 50%. 3000/- from the owner. The PW 2 also deposed in the same breadth and proved injury certificate. According to him, the workman suffered physical disablement to the extent of 50% for which his earning capacity was reduced by 50%. Considering the evidence, the Tribunal decided all the issues in favour of the claimant and held that insurance company is liable to make payment of Rs. 2,65,205/-. 5. I have heard Mr. SK Goswami appearing for the insurance company. None appears for the workman or the owner although notices were duly served. I have perused materials available on record. 6. On perusal of the records it appears that the insurance company deposited Rs. 2,65,205/- with the W.C. Commissioner in time and the same was eventually released in favour of the claimant. Perhaps this is the reason for which the workman has not ventured to appear before this court even after receipt of notice of this appeal. 7. Mr. SK Goswami, learned counsel for the appellant, submits that the Tribunal committed jurisdictional error in applying the provision of the Section 4(1)(c)(ii) of the W.C. Act, 1923, in the present case in view of the fact that the claimant has miserably failed to prove that he had suffered from permanent partial disability resulting in loss of earning capacity. Even PW 2 doctor, who was cross examined at length by the insurance company, could not show as to how did he arrive at the finding that the workman had lost earning capacity to the extent of 50%. Drawing attention of the Court to entry No. 22 of Part-II of Schedule I to the Act, Mr. SK Goswami argues that amputation of one foot result in 50% loss of earning capacity. Similarly, amputation below knee with stump exceeding 12.70 cm has resulted in loss of earning capacity to the tune of 50%. In the case in hand, there was no amputation at all and there was merely fracture of the femur bone and that being the position, it was definitely less than the injury covered by entry No. 21 and 22 of Part-II of the Schedule I of the Act. Mr. Goswami, therefore, argues that fracture of the femur should not, therefore, be held to have exceeded 50% of loss of earning capacity. Mr. Goswami, therefore, argues that fracture of the femur should not, therefore, be held to have exceeded 50% of loss of earning capacity. In the case in hand, the W.C. Commissioner went to the extent of holding that fracture of femur bone resulting in loss of earning capacity to the extent of 80% and so, this was not in keeping with the statutory provision of entry No. 21 and 22 of the Part –II in the Schedule I of the Act. 8. This court, in catena of decisions, had held that while considering compensation under the W.C. Act, 1923, in exercise of Section 4(1)(c)(ii) of the Act, the W.C. Commissioner is duty bound to see as to whether on the basis of the assessment made by a qualified medical practitioner it has been established that the workman has suffered from permanent partial disablement and that such disablement has resulted in loss of earning capacity and if so, to what extent. In so doing, the W.C. Commissioner has to rely on the assessment made by a qualified medical practitioner. But this does not mean that the qualified medical practitioner can make assessment arbitrarily without there being any basis. The qualified medical practitioner has to consider the disablement of the workman in the light of the nature of occupation pursued by the victim and thereupon to arrive at a finding as to whether there was loss of earning capacity at all and if so, to what extent. Under explanation II to Section 4(1)(c), it has been provided that the qualified medical practitioner shall have to keep in mind the percentage of loss of earning capacity in relation to different injuries specified in Schedule I to the Act while assessing the loss of earning capacity in a given case. Even in the present case, it is apparent from above that when a workman suffers from amputation of one of his legs as stated in entry No. 21 and 22 of Part-II of Schedule I of the Act, the statute has prescribed the loss of earning capacity to the extent of 50% only. In that view of the matter, the finding of the learned Tribunal that the workman had lost earning capacity to the extent of 80%, is clearly in contradiction of entry No. 21 and 22 of Part-II to Schedule I of the Act. In that view of the matter, the finding of the learned Tribunal that the workman had lost earning capacity to the extent of 80%, is clearly in contradiction of entry No. 21 and 22 of Part-II to Schedule I of the Act. The qualified medical practitioner not having considered this part of the Schedule while making assessment of loss of earning capacity fell in error and so merely because the qualified medical practitioner had opined that workman had lost 80% of earning capacity, should not have been accepted by the learned W.C. Commissioner at all. Having so found, the first and second substantial question of law mentioned above are accordingly decided and the impugned judgment and award is hereby set aside. 9. In view of the observations made above, there is no necessity for deciding the third substantial question of law. 10. Finally, considering the facts and circumstances and more particularly of the fact that the claimant is none other than a daily wage earner, this Court is not inclined to remand the matter for a fresh trial in view of the fact that principal amount has already been disbursed to him. The amount disbursed to the claimant shall not be recovered from him by the insurance company. With these observations, the appeal stands closed.