JUDGMENT : This appeal under Section 30 of the Workmen’s Compensation Act, 1923 (now re-designated as Employees’ Compensation Act, 1923 and hereinafter referred to as ‘the Act’) has been preferred by New India Assurance Company Limited challenging the judgment and award dated 13.03.2007 whereby the insurance company was directed to make payment of Rs. 3,09,438/- including interest at the rate of 9% per annum on the awarded amount from the date of accident. 2. The facts involved in this appeal are required to be stated in brief. One Ratan Chandra Das instituted a claim case being W.C. Case No. 58/2001 stating that he was a driver of one Smt. Sima Das, the opposite party No. 1 of the proceeding with respect to a truck bearing registration No. AS-17/2968. The vehicle met with an incident on 30.03.2001 while proceeding from Guwahati to Chagolia at about 10.40 pm near Karrmura Bridge on NH 31 under Tihu Police Station. This incident was not really a motor accident but an attack by the armed miscreants to commit robbery and dacoity. The handyman fled away and concealed himself in the paddy field but the driver could not escape. He was assaulted by knife as well as baton as a result of which he received fracture injuries. He was admitted to Nalbari Hospital and thereafter shifted to Coochbehar for better treatment. Even after he was released from the hospital, his injuries did not recover fully and he was not in a position to walk and/or work normally. He stated that he was earning Rs. 3,000/- per month as salary in addition to daily allowance of Rs. 70/- and he was 29 years of age at the time of accident. He further disclosed that the concerned vehicle was under insurance coverage under the New India Assurance Co. Ltd. by policy No. 3151230028117 which was in force at the relevant time. Tihu Police Station made a G.D. entry being No. 832 dated 31.03.2001 with respect to the incident. 3. On being notified, the opposite party No. 1 owner appeared and admitted that the claimant was a workman under her. The employment and incident was admitted and it was further highlighted that the vehicle was under valid insurance of the opposite party No. 2. 3. On being notified, the opposite party No. 1 owner appeared and admitted that the claimant was a workman under her. The employment and incident was admitted and it was further highlighted that the vehicle was under valid insurance of the opposite party No. 2. The opposite party No. 2, on the other hand, appeared and submitted written statement denying their responsibility and liability and prayed that the claim petition be dismissed not only on the point of maintainability but also on the point of merit. 4. Faced with such pleadings of the parties, the W.C. Commissioner framed following 4 issues and asked the parties to prove their respective case by adducing respective evidence:- 1. Is there any cause of action for the claim petition? 2. Whether the claim petition is maintainable in its present form? 3. Whether the O.Ps are liable to pay compensation as claimed by the claimant petitioner? 4. If yes, what relief is the claimant petitioner entitled to? 5. The claimant examined himself as the sole witness and adduced police report Ext. 1, driving license as Ext. 2, age proof certificate as Ext. 3, insurance policy with photograph as Ext. 4, prescription as Ext. 5, certificate of Doctor as Ext. 5(1) & 6, prescription as Ext. 7(1) to 7(4), money receipt as Ext. 8, X-ray report as Ext. 9 and seven numbers of X-ray plates as material exhibits as Ext. 10. None of the opposite parties led evidence and did not produce any document. The learned Tribunal considering the evidence brought on record by the claimant held that the claimant was a workman under the opposite party No. 1 with respect to the truck referred to above which was attacked by the miscreants on the fateful day resulting on grievous injuries on the person of the claimant. The learned Tribunal failed to notice that no qualified medical practitioner was examined by the claimant, yet proceeded to assess compensation under Section 4(1)(c)(ii) of the Act and he himself presumed that the claimant had suffered loss of earning capacity to the extent of 40%. Accordingly, applying relevant factor, compensation was calculated at Rs. 2,01,523/- to which a sum of Rs. 1,07, 915/- was added towards interest at the rate of 9% per annum from the date of accident till adjudication and thus, the insurance company was directed to make payment of Rs. 3,09,438/-. Accordingly, applying relevant factor, compensation was calculated at Rs. 2,01,523/- to which a sum of Rs. 1,07, 915/- was added towards interest at the rate of 9% per annum from the date of accident till adjudication and thus, the insurance company was directed to make payment of Rs. 3,09,438/-. This judgment and award dated 13.03.2007 has been challenged by the insurance company by the present appeal after depositing the principal amount of Rs. 2,01,523/-. 6. However, immediately after deposit of the amount and before admission of the appeal, the claimant approached the W.C. Commissioner for releasing the amount and the same was accordingly released in his favour. It appears that after appeal was admitted and the stay order was granted, the claimant initially entered appearance by engaging learned counsel but subsequently took away the brief as discussed by the learned counsel. This may be due to the fact that Rs. 2,01, 523/- was already released in favour of the workman. This appeal was admitted on 10.08.2007 framing as many as 5 substantial questions of law which are quoted below:- 1. Whether the learned Commissioner was justified to assess 40% loss of earning of the injured claimant-workman in absence of examination of a qualified medical practitioner? 2. Whether the Exhibit 5 & 6 certificate issued by an Ayurvedic Physician without reflecting any permanent disability and merely stating the period of treatment, could have been relied upon to come to a conclusion that the workman-claimant suffered 40% loss of earning capacity? 3. Whether inclusion of the allowances in the salary of the workman to determine the compensation is legal in view of the decision of this court reported in 2006 (2) GLT 870 (Oriental Insurance Co. Ltd. Vs. Lakhimaya Devi & Ors.)? 4. Whether the award of interest from the date of the accident is permitted, since the same is contrary to the decision of the Apex Court reported in 2006 (5) SCC 190? 5. Whether the learned Commissioner was competent to impose penal interest? 7. I have heard Mr. RK Bhatra, learned counsel for the appellant. Mr. SU Ahmed has appeared only to inform the court that the file was taken back from him by the claimant in the year 2008 itself. I have perused the records including deposition of the claimant and the exhibits adduced by him. 8. 7. I have heard Mr. RK Bhatra, learned counsel for the appellant. Mr. SU Ahmed has appeared only to inform the court that the file was taken back from him by the claimant in the year 2008 itself. I have perused the records including deposition of the claimant and the exhibits adduced by him. 8. It appears that the first substantial question of law referred to above is the main point to be determined in the appeal and if this substantial question of law is decided in affirmative in favour of the appellant then there would be no necessity for deciding the other substantial questions of law. Mr. RK Bhatra, learned counsel for the appellant, submits that even on a bare perusal of Section 4(1)(c)(ii), it would appear that the W.C. Commissioner has no authority or jurisdiction to make assessment as to loss of earning capacity without the aid of a qualified medical practitioner. Here is a case relating to non-scheduled injury and so examining a qualified medical practitioner is a must in view of recital of the Section 4(1)(c)(ii) of the Act. Had the case been related to a scheduled injury, there would have been no difficulty to find out the quantum of loss of earning capacity, inasmuch as, the statute has furnished the same. But when the injuries are beyond schedule, examination of qualified medical practitioner is a must. 9. Section 4(1)(c)(ii) of the Act provides that compensation payable to a claimant is proportionate to the loss of earning capacity as assessed by the qualified medical practitioner arising from permanent injury caused by the accident. The recital presupposes that there has to be qualified medical practitioner to make the assessment as to what is/was the physical disability and as to what was the resultant loss of earning capacity keeping in view the nature and character of the particular occupation pursued by the claimant at the relevant time. There is no doubt that same injury may not result in identical loss of earning capacity for all types of occupations and this is why it is the judgment of the qualified medical practitioner which is necessary to ascertain the loss of earning capacity in each case depending upon the facts and circumstances. What should be the criteria of such discretion has been considered in the case of Bimal Nath v. National Insurance Company Limited reported in 2009 (1) GLT 370. What should be the criteria of such discretion has been considered in the case of Bimal Nath v. National Insurance Company Limited reported in 2009 (1) GLT 370. The requirement of examining a qualified medical practitioner has also been found to be a mandatory exercise by this court in case of New India Assurance Company Limited v. Sanjit Kumar reported in 2000 (2) GLT 565. Considering the aforesaid laws laid down by this court it appears that the impugned judgment and award has been vitiated for non-examination of a qualified medical practitioner. The first substantial question of law, therefore, is hereby decided in favour of the appellant insurance company. The W.C. Commissioner committed jurisdictional error in himself assessing the loss of earning capacity at 40% merely on the basis of the medical certificate presented by the claimant without having the benefit of oral evidence of the qualified medical practitioner who had issued the certificate. The impugned judgment and award, therefore, has to be set aside and it is accordingly set aside. The other substantial questions of law are not required to be decided. 10. Send down the records immediately. 11. At this stage, Mr. RK Bhatra, learned counsel for the appellant, has discussed by drawing attention of the court to the lower court’s records that principal amount of Rs. 2,01,523/- deposited by the insurance company, was disbursed in favour of the workman even before the appeal was admitted. In that view of the matter, the insurance company is not required to make payment of balance amount. However, the amount which has already been disbursed to the workman and may not be realised in view of the fact that the workman belongs to the lowest stratum of the society and might have spent the money in the mean time. 12. No order as to costs.