JUDGMENT : The insurance company as appellant has preferred this appeal challenging the judgment and award dated 16.11.2007 thereby holding that the claimant had lost 100 % earning capacity and was consequently entitled to compensation to the tune of Rs.4,89,240/- along with interest @ 12% per annum. Heard Mr. S Dutta, learned counsel for the appellant and Mr. GC Phukan, learned counsel for the claimant. The employer who is arrayed as respondent No.2 herein has not put up appearance in spite of service of notice. 2. The basic fact involved in this appeal are required to be stated first. One Bijit Das submitted a claim petition before the WC Commissioner at Nagaon stating that he was engaged as a driver with respect to a Maruti Gypsy bearing registration No.AR-05/0272 belonging to one Kamal Lama of Bhalukpong at a monthly salary of Rs.4000/- . On 3.8.2002 while the vehicle was moving from Seppa towards Bhalukpong, it went off the road about 3 km away from Palaji village and fell down into deep gorge and consequently all the persons including himself received grievous injuries. He lost his consciousness and was rescued by police personnel of the nearby police station. He was sent to EMM Hospital at Tezpur and was thereafter referred to the Institution of Neurological Sciences, Guwahati and even after treatment for a long time his paralysed lower limbs could not be made functional. According to him, the spinal injury caused to him due to the accident was the cause for such permanent total disability and so he was entitled to compensation to the tune of Rs.5,80,000/- . He further disclosed that the vehicle was under valid insurance of the opposite party No. 2, now New India Assurance Company Ltd. vide policy No.3153878423996. 3. On being notified, the opposite party No.1, owner did not appear and so proceeding was held exparte against him. On the other hand, opposite party No.2 submitted a written statement denying all the averments made in the claim petition including employer and employee relationship between the claimant and the opposite party No.1. It totally denied its liability or responsibility to make payment of any compensation at all. Faced with such rival contention of the parties, the W.C Commissioner directed the parties to lead their respective evidence whereupon claimant examined himself as PW-1 and one Dr. BK Bora as PW-2. It totally denied its liability or responsibility to make payment of any compensation at all. Faced with such rival contention of the parties, the W.C Commissioner directed the parties to lead their respective evidence whereupon claimant examined himself as PW-1 and one Dr. BK Bora as PW-2. The opposite party No.-2, insurance company did not lead any evidence. However, the witnesses examined by the claimants were duly cross examined by the insurance company. On the basis of evidence led by the claimant, the WC Commissioner arrived at the findings that the claimant had suffered permanent partial disability to the extent of 60% and that he had suffered 100% loss of earning capacity. It was also found that the claimant was 32 years of age as on the date of accident and that he was drawing monthly salary of Rs.4000/- and accordingly, the compensation was calculated at Rs.4,89,240/- and the insurance company was directed to make payment within a period of one month failing which 12% interest on the compensation amount was awarded. This judgment and award passed on 6.11.2007 has been called in question by the insurance company before this court. 4. While admitting this appeal on 3.6.2009, this court did not frame any substantial question of law as was required under Section 30 of the Workmen Compensation Act, 1923 ( now renamed as Employees Compensation Act, 1923 and hereinafter referred to as ‘the Act’). After hearing the learned counsel for the parties, this court frames the following substantial question of law: (i) Whether the WC Commissioner can himself assess the loss of earning capacity of a victim under Section 4(i) © (ii) of the Act when the qualified medical practitioner did not assess the same? 5. I have heard Mr. S Dutta, learned counsel for the appellant as well as Mr. GC Phukan, learned counsel for the respondent No.1 who has argued on this substantial question of law and has placed reliance on the evidence available on record. I have perused the LCR including documents adduced by the claimant. 6. The claimant examined himself as PW-1 who has reiterated the story of his employment under the opposite party No.1 and of getting salary of Rs.4000/- per month. He has given the vivid description as to how the vehicle had met with an accident on 2.8.2003 and as to how he was treated. 6. The claimant examined himself as PW-1 who has reiterated the story of his employment under the opposite party No.1 and of getting salary of Rs.4000/- per month. He has given the vivid description as to how the vehicle had met with an accident on 2.8.2003 and as to how he was treated. He has placed on record as many as 70 documents to prove not only the accident but also his disability and of his age. Accident information report has been adduced as Exhibit-1, GD Entry registered by Rupa Police Station as Ehxibit-2, driving license has been proved in original vide Exhibit-3, disability certificate by a medical board has been exhibited as Exhibit-4, disability card from the Social Welfare Department as Exhibit- 5, Concession certificate from the Government of India as Exhibit-6, Pass Book as Exhibit-7, Certificate by Dr. B Bhattacharjee as Exhibit-8, Certificate from the Purbanchal Yago Niketan as Exhibit-9, Admit Card of HSLC Examination as Exhibit-10 and cash memo and pharmacy bills as Exhibits- 11 to 69. Disability Certificate has been adduced as Exhibit-70. This witness stated that in view of the injuries suffered by him, he has totally lost his earning capacity as he cannot do any work. In course of cross examination, he disclosed that he had met with an accident on the day following issuance of driving license by the licensing authority. He disclosed that the license was a private license and not a professional license and that he met with the accident on the very first day of his employment. He thereafter disclosed that since the accident occurred on the very first day of his employment, there was no question of getting his salary for which he could not show any salary certificate. The insurance company suggested that he was never engaged as driver of the vehicle and that there was no employer and employee relationship between the opposite party No.1 and himself. It was also suggested that Ehxibit-11 to 69 were manufactured documents and that he did not receive any injury on his head, chest and backbone. He admitted that there was contradiction between Exhibit-3 and 10 in respect to his age. It was also suggested that he has not suffered from any paralysis. One suggestion was also put to him that that he has not lost his capacity to do all works. 7. One Dr. He admitted that there was contradiction between Exhibit-3 and 10 in respect to his age. It was also suggested that he has not suffered from any paralysis. One suggestion was also put to him that that he has not lost his capacity to do all works. 7. One Dr. BK Borah was examined as PW-2 in this case who proved Exhibit-4 certificate issued by the medical board in regard to disability of the claimant. He deposed that on 15.3.2004, Exhibit-4 was issued to the claimant after examining the victim. He found that both the legs of the claimant were totally paralyzed and he was not in a position to move his lower limb. Exhibit-4 was issued by the medical board constituted for the purpose on the basis of an application filed by the claimant to the Board on 9.3.2004. The board accepted the application on 11.3.2004 and thereafter issued Exhibit-4 certificate wherein Exhibit-4 is the signature of the Chairman of the board. Board issued certificate in statutory form (Exhibit-70) in which Exhibit-70(2) and Exhibit-70(3) are his signature. The certificate was signed by the Joint Director vide Exhibit-70(4) and thereby it was held that the victim was physically disabled to the extent of 60%. But no opinion was expressed as to what was the extent of loss of earning capacity . This witness was thoroughly examined by the insurance company when he stated that although board was constituted with three members but on a given date, all the three members may not remain present. On the day when the Exhibit-70 certificate was issued the Board was attended by himself and the Chairman of the Board. By that certificate, the claimant was described as disabled person but name of the decease was not mentioned. He admitted that no investigation was done as required under the law for the purpose of issuance of Exhibit-70. No question was put to him in regard to the correctness of physical disability or assessment of earning capacity. Under such circumstances, the documentary evidence as to 60% permanent disability of the workman went unrebutted in the evidence. Noticing such materials available on record, the WC Commissioner arrived at the finding that the claimant had suffered partial permanent disability to the extent of 60%. Under such circumstances, the documentary evidence as to 60% permanent disability of the workman went unrebutted in the evidence. Noticing such materials available on record, the WC Commissioner arrived at the finding that the claimant had suffered partial permanent disability to the extent of 60%. In the absence of any assessment made by the qualified medical practitioner as to loss of earning capacity, the WC Commissioner himself made assessment and held that that the workman must have lost 100 % earning capacity as both his legs were paralysed. According to the WC Commissioner, a driver having total paralysis of legs cannot pursue his occupation and so he must be deemed to have lost earning capacity to the extent of 100 %. In so doing, the WC Commissioner failed to notice that section 4(i) © (ii) of the Act authorizes a Commissioner to assess compensation on the basis of loss of earning capacity assessed by a qualified medical practitioner (emphasis supplied). The WC Commissioner thereafter assessed the compensation at Rs.4,89,240/-. According to the learned counsel for the appellant, such assessment of compensation by the WC Commissioner being contrary to the provision of Section 4(i) © (ii) of the Act, is not tenable in law and is liable to be set aside. 8. Mr. GC Phukan, learned counsel representing the claimant/respondent No.1 herein on the other hand submitted that the fact as to employer and employee relationship between the claimant and the opposite party No.1 has been proved by preponderance of probability. The employer did not contest the proceeding and so the claim that claimant was appointed as a driver under the opposite party No.1 was not effectively contested. The fact as to occurrence of the accident is proved by Exhibit-1 which is the accident information report and physical disability to the extent of 60% is also beyond doubt as there is a certificate by the medical board to that effect vide Exhibit-70 in addition to oral evidence. A member of the board was examined as PW-2 by the claimant to prove his permanent partial disability and so there is no error in arriving at the finding that the motor accident had resulted in partial permanent disability of the claimant. This being the position, only point which is left to be decided is what was the consequent loss of earning capacity of the claimant owing to such accident. Mr. This being the position, only point which is left to be decided is what was the consequent loss of earning capacity of the claimant owing to such accident. Mr. Phukan in his usual fairness submits that the qualified medical practitioner examined as PW-2 has failed to make mention of the quantum as to loss of earning capacity and this is why the WC Commissioner had to make the assessment himself. Mr. Phukan has not disputed that such usurpation of jurisdiction by the Commissioner is not permitted by law in view of clear recital of Section 4(i) ( c) (ii) of the Act. He therefore suggests the impugned judgment may be set aside and the same may be remanded for deciding the matter afresh in accordance with law. 9. In view of argument put forward and as referred to above and in view of the evidence led by the claimant, it is clear that the WC Commissioner did not commit any error in holding that the claimant had suffered permanent, partial disability to the extent of 60% because of the motor accident referred to in Exhibit-1 accident information report. The finding of the learned Commissioner that claimant was employed by the opposite party no.1 is also based on materials on record and such finding of fact does not require any interference. But fact remains that under Section 4(i) © (ii) of the Act, it is the qualified medical practitioner alone who can assess loss of earning capacity in case of a partial permanent disability suffered by a workman due to an accident. Herein, this case, motor accident had taken place in course of employment which resulted in 60% permanent disability of the workman and so he is entitled to compensation under Section 4 (i) © (ii) of the Act. But the only deficiency in the case is that claimant failed to lead any evidence in regard to the extent of loss of earning capacity and without requiring the parties to lead such evidence, the WC Commissioner himself made the assessment. Clearly this is a departure from the provision of statute under section 4(i) (C) (ii) of the Act. The only substantial question of law framed in this appeal, therefore, is liable to be decided in favour of the insurance company/appellant and it is accordingly decided. Clearly this is a departure from the provision of statute under section 4(i) (C) (ii) of the Act. The only substantial question of law framed in this appeal, therefore, is liable to be decided in favour of the insurance company/appellant and it is accordingly decided. Consequently, the judgment and award is set aside and the matter is remanded to the jurisdictional WC Commissioner so as to enable the parties to lead respective evidence for arriving at the finding as to loss of earning capacity as required under Section 4 (i) © (ii) of the Act. Since, the matter relates to an accident of 2003, the WC Commissioner shall decide the matter within three months from the date of receipt of the records. 10. At this stage, Mr. GC Phukan, learned counsel for the respondent submits that pursuant to an interim order passed by this court, the insurance company deposited 60% of the awarded amount and the same has already been taken by the claimant who is a poor person hailing from lowest economic strata of the society. He must have spent the money for his treatment and subsistence and so it would be proper for the ends of justice that the amount already paid to him may not be taken back. Considering the fact that the Act is a beneficial piece of legislation to bail out the person belonging to economically weaker section of the society , I find that submission of Mr. GC Phukan has force. Accordingly , it is ordered that the amount which has been disbursed to the workman already may not be taken back. 11. The appeal stands allowed. No order as to cost. Send down the record immediately. After receipt of the records, the WC Commissioner shall issue notice to both the sides for appearance on a fixed date.