JUDGMENT : In 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’), the insurance company is the appellant. By preferring this appeal, the judgment and award dated 05.09.2002 passed by the W.C. Commissioner at Nagaon in N.W.C. Case No. 136/2000 has been challenged. By that judgment, the learned W.C. Commissioner assessed compensation under section 4(1)(c)(ii) of the Act and directed the insurance company to make payment of compensation to the tune of Rs. 1,35,132/- along with interest at the rate of 12% per annum within a period of 30 days from the date of the order. Mr. S Dutta, learned counsel for the appellant, submits that pursuant to the aforesaid judgment and award, the insurance company deposited the principal amount of compensation with the jurisdictional W.C. Commissioner and the claimant workman has been permitted to withdraw this amount by the W.C. Commissioner. 2. The basic facts involved in the appeal are required to be stated before entering into the substantial questions of law. One Indrajit Das submitted a claim petition before the W.C. Commissioner at Nagaon stating that he was engaged as handyman by Hiranya Gohain, the owner of a bus bearing registration No. AS-02/6551 at a monthly wage of Rs. 2,000/- in addition to daily allowance at the rate of Rs. 20/30. According to him, on 26.02.2000 while the vehicle was proceeding from Nonoi to Nagaon, it met with an accident at Morikolong over N.H. 36 at about 9 P.M. and skidded off to a nearby drain. As a result, both driver and the handyman had received grievous injuries. Traffic Branch of Nagaon Police made a G.D. entry being No. 652 on the same day in regard to the accident. According to the claimant, he received fracture injuries on left radius and right tibia because of the accident and he was treated in B.P. Civil Hospital at Nagaon. He did not recover fully in spite of treatment and so filed an application for getting compensation under the Act. On being notified, the opposite party No. 1, owner of the vehicle, appeared and admitted the basic facts like employment of the claimant, the monthly wage received by him as well as the factum of accident. He did not recover fully in spite of treatment and so filed an application for getting compensation under the Act. On being notified, the opposite party No. 1, owner of the vehicle, appeared and admitted the basic facts like employment of the claimant, the monthly wage received by him as well as the factum of accident. However, it was disclosed by the opposite party No. 1 that the vehicle was covered by valid insurance of the opposite party No. 2 vide Policy No. 01793/2000/99. 3. The opposite party No. 2 appeared and submitted written statement denying all the averments made in the claim petition including the factum of accident and employment of the workman. Faced with such contrary pleadings of the parties, the W.C. Commissioner allowed the parties to prove their respective cases by adducing evidence. 4. The claimant examined himself as PW 1 and one Dr. Praneswar Das as PW 2. The insurance company or the owner did not lead any evidence of their own. However, insurance company cross examined the witnesses of the claimant. On the basis of the evidence available on record, the W.C. Commissioner arrived at the finding that there was employer-employee relationship between claimant and opposite party No. 1 and that the claimant was drawing monthly wage of Rs. 2000/- in addition to daily allowance at the rate of Rs. 20/30. The W.C. Commissioner found that the workman was 19 years of age at the time of accident and accordingly presuming that the injuries suffered by the workman was permanent and partial in nature to the extent of 35% resulting in 50% loss of earning capacity made the assessment as follows:- 50% of Rs. 1200/- x 225.22 = Rs. 1,35,132/- Having found that the vehicle was covered by valid insurance of the opposite party No. 2, the learned W.C. Commissioner directed the insurance company to make payment of the compensation along with interest at the rate of 12% per annum with effect from 26.02.2000 which is the date of accident. 5. 1200/- x 225.22 = Rs. 1,35,132/- Having found that the vehicle was covered by valid insurance of the opposite party No. 2, the learned W.C. Commissioner directed the insurance company to make payment of the compensation along with interest at the rate of 12% per annum with effect from 26.02.2000 which is the date of accident. 5. This judgment and award dated 05.09.2002 has been called in question by the insurance company on a number of grounds and this court while admitting the appeal has framed as many as 4 substantial questions of law on 12.12.2008 which are quoted below:- “(i) Whether the Commissioner below had acted legally in allowing the workman to amend his pleading to change/substitute the pleaded nature of injury allegedly sustained by him, at the stage when the evidence of the parties was closed and case was fixed for argument? (ii) Whether the Commissioner acted reasonably in passing the impugned judgment and award on the basis of the evidence of a Doctor who not being an Orthopaedic Surgeon was not competent to assess the alleged disability and/or loss of earning capacity of the workman inasmuch as envisaged under Section 4(1)(c)(ii) of the Act? (iii) Whether the claimant not having suffered any permanent partial disablement within the meaning of the expression as used in the Workmen’s Compensation Act, 1923 the commissioner below had acted legally in computing the quantum of compensation as per the provision of Section 4(1)(c) and not 4(1)(d) of the Workmen’s Compensation Act, 1923 as amended upto date? (iv) Whether, in view of the law laid down by the Hon’ble Supreme Court in the case of National Insurance Co. Ltd vs. Mubasir Ahmed & another (reported in (2007) 2 SCC 349 ), the learned Commissioner, Workmen’s Compensation has acted legally in directing payment of interest on the amount of compensation awarded by him from the date of the accident?” 6. I have heard Mr. S Dutta, learned counsel for the appellant and Mr. H Das, learned counsel for the claimant respondent No. 1. No one has put up appearance on behalf of the owner although notice has been duly served. 7. However, since the insurance company has basically challenged the quantum and validity of the compensation and not the liability, non-appearance of the owner of the vehicle does not have any effective consequence. I have perused the lower court records. Mr. No one has put up appearance on behalf of the owner although notice has been duly served. 7. However, since the insurance company has basically challenged the quantum and validity of the compensation and not the liability, non-appearance of the owner of the vehicle does not have any effective consequence. I have perused the lower court records. Mr. S Dutta, learned counsel for the appellant would argue that although as many as 4 substantial questions of law were framed by this court but he would confine his argument to the following substantial questions of law:- “Whether the finding of the W.C. Commissioner that the victim suffered permanent partial disablement is perverse?” In view of the specific averments made by the learned counsel for the appellant foregoing his right to argue the four substantial questions of law framed by this court, this court feels inclined to hear this appeal on the proposed substantial question of law at the time of hearing and accordingly other substantial questions of law are repudiated as not pressed. Accordingly, the sole substantial question of law to be decided in the present case will be as follows:- “Whether the finding of the learned W.C. Commissioner that the claimant incurred permanent partial disablement is perverse?” 8. To decide the sole substantial question of law, I have perused the whole of the lower court records including the evidence of the qualified medical practitioner as well as the certificate issued by him vide Ext. 1. The qualified medical practitioner stated in course of his examination-in-chief that he had examined the victim on 26.02.2000 as indoor patient at Nagoan Civil Hospital. He was discharged on 14.03.2000 from the hospital and it was found that the left radius and right tibia of the victim had suffered fracture. Ext. 1 is the certificate given by him in which Ext. 1/1 is his signature. He stated that after having perused the bed head certificate, discharge certificate and X-ray report, he had issued the Ext. 1 certificate. As per his opinion, the workman had suffered 35% disablement and for this, the victim must have lost 50% of earning capacity. It is conspicuous from the examination-in-chief of the qualified medical practitioner that there is no opinion as to such injury being permanent and partial. The Ext. 1 disability certificate is available on record. It bears the seal and signature of PW 2, Dr. It is conspicuous from the examination-in-chief of the qualified medical practitioner that there is no opinion as to such injury being permanent and partial. The Ext. 1 disability certificate is available on record. It bears the seal and signature of PW 2, Dr. Praneswar Das and the opinion of the doctor is quoted below:- “Today again I examined him and found that he has developed osteo-arthritis of right ankle joint and left elbow joint making him about 35% (thirty five) physically handicapped.” 9. This certificate does not make mention as to whether the victim has suffered any loss of earning capacity. On joint perusal of the Ext. 1 certificate as well as the examination-in-chief of the PW 2, Dr. Praneswar Das, it does not appear that the PW 2 had in his mind the provisions of Schedule I of the Act at the time of issuance of the certificate and/or assessing the loss of earning capacity of the victim. He has not stated anywhere that the victim had suffered permanent partial disablement within the meaning of Section 2(1)(g) of the Act. He does not say as to whether the victim has become incapable of performing the type of employment he was pursuing at the time of accident. Under section 4(1)(c)(ii) of the Act, the W.C. Commissioner has to pass award for compensation on the basis of assessment as to loss of earning capacity made by a qualified medical practitioner. The assessment by a qualified medical practitioner as to loss of earning capacity, on the other hand, has to be in terms of the guideline laid down in Schedule I to the Act as indicated in explanation to section 4(1)(c) of the Act. The qualified medical practitioner, therefore, is duty bound to take into consideration the loss of earning capacity prescribed by the statute in terms of the scheduled injuries resulting in partial permanent disablement and thereupon to arrive at a finding in regard to loss of earning capacity of a workman who has suffered un-scheduled injury resulting in permanent partial disablement. The finding of the W.C. Commissioner that victim has suffered permanent partial disablement is the jurisdictional fact on which the W.C. Commissioner derives power to proceed to make assessment under section 4(1)(c)(ii) in case of an un-scheduled injury. The finding of the W.C. Commissioner that victim has suffered permanent partial disablement is the jurisdictional fact on which the W.C. Commissioner derives power to proceed to make assessment under section 4(1)(c)(ii) in case of an un-scheduled injury. In the absence of any material to arrive at such finding, it would be presumed that such injury is temporary in nature and in that event, the compensation has to be assessed under section 4(1)(d) of the Act. 10. In the case in hand, neither the qualified medical practitioner nor any other material available on record establishes that the workman had suffered permanent partial disablement within the meaning of section 2(1)(g) of the Act nor does the records make out the loss of earning capacity of the victim because of such injury keeping in view of the provisions of Part II of Schedule I to the Act. The W.C. Commissioner virtually has failed to consider all the aspects of the matter before proceeding to make assessment of compensation under section 4(1)(c)(ii) of the Act. Having so found, the assessment cannot be upheld. The finding of the W.C. Commissioner, therefore, that the workman was entitled to compensation under section 4(1)(c)(ii) having been victim of permanent partial disablement resulting in from accident in course of employment is not based on the materials on record. The sole substantial question of law is accordingly answered in the affirmative and in favour of the appellant. The judgment and award passed by the W.C. Commissioner stands consequently set aside. The matter is remanded back for making the assessment afresh by affording adequate opportunity to the parties to lead their respective evidence. 11. At this stage, Mr. S Dutta, learned counsel for the appellant, has drawn attention of this court to a receipt given by the workman to the W.C. Commissioner on 26.08.2003 showing that he has already withdrawn a sum of Rs. 82,943.50 from the jurisdictional W.C. Commissioner out of the amount deposited by the insurance company. Mr. H Das, learned counsel for the claimant/workman, submits that the workman was a handyman and hails from the lowest economic strata of the society. He might have spent the amount and under such circumstances, any attempt to recover the amount from him, may affect his subsistence. Considering the facts and circumstances of the case, it is ordered that the amount already disbursed to the workman, may not be taken back. He might have spent the amount and under such circumstances, any attempt to recover the amount from him, may affect his subsistence. Considering the facts and circumstances of the case, it is ordered that the amount already disbursed to the workman, may not be taken back. The insurance company shall be entitled to withdraw the balance amount. 12. No order as to costs.