1. The National Insurance Company Ltd. as appellant has preferred this appeal under Section 30 of the Workmen Compensation Act, 1923 (now renamed as Employees Compensation Act, 1923 and hereinafter referred to as 'the Act') challenging the judgment and award dated 2.1.2004 passed by the learned WC Commissioner , Nagaon in WC Case No.271 of 2001 thereby directing the insurance company to make payment of Rs.1,93,594/- to the claimant within 30 days from the date of adjudication. 2. The facts involved in the appeal are that one Abdul Karim describing himself to be the driver of Mini Bus bearing registration No. AS-02/3747 belonging to one Mukul Bora submitted a claim petition before the WC Commissioner stating that on 9.7.2001 when the vehicle was proceeding from Morigaon towards Nagaon with passengers, it met with an accident at about 4 pm and the vehicle fell into the drain. Consequently, claimant sustained grievous injury on his person. One of the occupants died in the accident. Morigaon P.S registered Case No.62 of 2001 under Section 279/304(A)/337/427 IPC with respect to the accident and conducted investigation. The claimant was treated by one Dr. PN Bora of Nagaon who issued medical certificate testifying that the claimant suffered permanent partial disability to the extent of 30% resulting in 40% loss of earning capacity because of the injuries sustained by him on his person. The claimant stated that he was getting daily wage of Rs.150/- from the owner and that he was 32 years of age as on the date of the accident. He claimed compensation from the opposite party after having disclosed that the vehicle was covered under valid insurance of the opposite party No.2. 3. On being notified, opposite party No. 1 appeared and submitted written statement thereby admitting that the claimant was workman under him on a daily wage of Rs.150/- , that he was 32 years of age and that there was an accident as alleged in the claim petition. He disclosed that the vehicle was covered by valid insurance under opposite party No.2. Opposite party No. 2 by filing written statement denied all liability and responsibility of making compensation. The insurance company denied the pleaded case of the claimant in entirety including employer and employee relationship, correctness as to sustaining grievous injury and loss of earning capacity. He disclosed that the vehicle was covered by valid insurance under opposite party No.2. Opposite party No. 2 by filing written statement denied all liability and responsibility of making compensation. The insurance company denied the pleaded case of the claimant in entirety including employer and employee relationship, correctness as to sustaining grievous injury and loss of earning capacity. Upon such pleadings of the parties, the WC Commissioner directed the parties to prove their respective case by adducing evidence. 4. Claimant examined himself as PW-1 and one Dr. PN Bora as PW-2. Claimant stated that his monthly wage was Rs.4500/- and he was getting daily wage of Rs.150/- from the owner. He claimed that he was being paid all days in a month. According to him on 9.7.2001 while he was driving the vehicle from Morigaon to Nagaon with passengers , the vehicle met with an accident and fell in a drain leading to death of a passenger. He also sustained grievous injury on his person. He got injury not only in the ankle but in the waist as well. He was taken to Morigaon Civil hospital by police and x-ray was done whereupon it was found that there was fracture in his ankle joint. He then met Dr. PN Bora in his chamber for treatment who applied plasters on his foot and it remained for about 45 days. Even after long treatment, he has not fully recovered and his leg has become slightly bent. He cannot drive anymore and thus he has got permanent and partial disablement. Dr. PN Bora who deposed as PW-2 in the case stated that on 11.7.2001 when he had again gone to examine the claimant as a private patient ,the claimant had disclosed that he met with an accident on 9.7.2001 and at that time, he had the following injuries:- (i) Pain and tenderness over the right ankle joint (ii) Pain and tenderness over the back of the body and (iii) Tenderness over the forehead and chest. According to him, x-ray report on ankle joint showed that there was fracture in the right medial melluolus. According to him, x-ray report on ankle joint showed that there was fracture in the right medial melluolus. According to the doctor, those injuries resulted in 30% physical disability and 40% loss of earning income but himself stated in course of examination-in-chief that in making assessment of loss of earning capacity , he did not follow the provisions of the WC Act and gave certificate on his own experience. According to him, injuries caused to the claimant are not recoverable even after physiotherapy and that he had developed osteo orthrities. 5. On the basis of the aforesaid evidence led by the claimant and in the absence of any evidence from the side of the insurance company, the WC Commissioner accepted the assessment made by the qualified medical practitioner and thereupon proceeded to assess the compensation amount. The age of the workman was accepted as 32 years and his monthly wage at Rs.4500/-. Thereupon, the compensation was fixed at Rs.1,93,593.60 which has been rounded off to Rs.1,93,594. The learned WC Commissioner observed that interest part will be borne by the employer and not by the insurance company. Finding that the vehicle was covered by valid insurance of opposite party No. 2, the learned WC Commissioner asked the insurance company to make payment of the wage amount within 30 days from the date of adjudication. This judgment and award dated 2.1.2004 has been challenged by the insurance company by the present appeal. 6. This court while admitting the appeal on 30.3.2004 framed the following three substantial question of law:- (i) Whether the assessment of disability and loss of earning capacity fixed by the doctor is in accordance with law? (ii) Whether the amount of compensation arrived at by the Commissioner in accordance with law? (iii) Any other substantial question(s) of law that may be urged at the time of hearing of this appeal? 7. I have heard Mr. BK Purkayastha, learned counsel for the appellant. No one has entered appearance on behalf of the respondents although names were duly shown on behalf of the respondent No. 1 in the Cause List. Notice on respondent No. 2 has also been duly served. 8. Mr. 7. I have heard Mr. BK Purkayastha, learned counsel for the appellant. No one has entered appearance on behalf of the respondents although names were duly shown on behalf of the respondent No. 1 in the Cause List. Notice on respondent No. 2 has also been duly served. 8. Mr. BK Purkayastha, learned counsel for the appellant would argue that even on his own showing the qualified medical practitioner admitted that he did not take into consideration the provision of WC Act at the time of making assessment of compensation which is in defiance of the provision laid down under Explanation to Section -4 (1) ( C) (ii) of the Act. To find out as to whether such a statement has been made by the qualified medical practitioner, I have gone through the lower court records. The qualified medical practitioner examined himself as PW-2 on oath. In his examination in chief he made mention of physical disability and loss of earning capacity of the workman. He opined that the injuries sustained by the claimant is permanent and that it is not recoverable as the workman had already developed osteo orthirities at the injured part of his body. But at the last part of the examination in chief, he candidly admitted that while issuing the disability certificate and opining about the extent of loss of earning capacity, he did not keep in mind the provision of the WC Act. 9. The submissions made by the appellant, therefore, is factually correct. It is true that the WC Commissioner admitted in course of examination -in-chief that he did not make the assessment having due regard to the provision of Part-II of the Schedule -1 under Section 4(1)(c) of the Act at the time of assessing loss of earning capacity for the purpose of Section -4(1)(c)(ii) of the Act. Explanation-II under Section-4(1)(c) is quoted below: “Explanation II- In assessing the loss of earning capacity for the purpose of sub-clause(ii), the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in relation to different injuries specified in Schedule-I.” 10. There is no doubt that so far as scheduled injuries are concerned the statute has already laid down the extent of loss of earning capacity. There is no doubt that so far as scheduled injuries are concerned the statute has already laid down the extent of loss of earning capacity. In case of permanent total disablement, the loss of earning capacity is 100% under Part-I of the Schedule-I. Part-II of the Schedule-I deals with other injuries belonging to the category of permanent and partial disablement. Here a number of disablements have been mentioned along with corresponding loss of earning capacity. Legislature in its wisdom has laid down some extent of loss of earning capacity with respect to some of the injuries which are mentioned in the schedule. The difficulty arises with regard to those with permanent partial disability of which are not included in Part-II of Schedule -I. Under Section-4 (1) (c) (ii) of the Act, the WC Commissioner has been given jurisdiction to make compensation with respect to those injuries by arriving at the finding as to loss of earning capacity from the injuries sustained by the workman in course of his employment. It has been specifically laid down in the provisions that such loss of earning capacity as assessed by the qualified medical practitioner has to be taken into consideration for the purpose of calculating the compensation amount. Under Explanation-II of this provision, a qualified medical practitioner is duty bound to have due regard to the percentage of loss of earning capacity in relation to different injuries specified in Schedule-I. For example, loss of toes of right or left foot through metatarso-phalangeal joint is stated to cause 14 % loss of earning capacity under the extreme right column of the Schedule. The same for any other toe has been assessed at 3% only. While ascertaining or assessing the loss of earning capacity for any injury to such toe, the qualified medical practitioner has to keep in mind the corresponding loss of earning capacity mentioned in the Schedule with respect to the injury mentioned in the Schedule. When loss of great toe of either foot amounts to 14% loss of earning capacity, a mere fracture on a part of such organ cannot be more than 14 %. When loss of great toe of either foot amounts to 14% loss of earning capacity, a mere fracture on a part of such organ cannot be more than 14 %. This is why in case of non scheduled injury, a qualified medical practitioner is required to have due regard to the percentage of loss of earning capacity in relation to different injuries specified in the Schedule-I. In the case in hand, a qualified medical practitioner has himself admitted in course of examination-in-chief that he did not keep in mind the provision of Schedule-I while issuing disability certificate to the workman in the present case. Such action of the qualified medical practitioner, therefore, is not in conformity with the mandate of law under Explanation-II of Section 4(1) (c) of the Act and hence such assessment by qualified medical practitioner is not an assessment within the meaning of Section -4 (1) (c) (ii) of the Act. Consequently, the first substantial question of law is decided in favour of the appellant and in the negative. 11. Once the first substantial question of law is decided holding that the loss of earning capacity fixed by the Doctor is not in accordance with law, compensation amount calculated by the WC Commissioner cannot be said to have been correctly made and hence, the second substantial question of law is also required to be decided in negative and in favour of the appellant. It is accordingly decided. 12. Having decided the first and second substantial questions of law in favour of the appellant, the appeal stands allowed. Impugned judgment award is hereby set aside and the matter is remanded back to the court of learned WC Commissioner for making assessment afresh in accordance with law. 13. This shall be done within 6(six) months from the date of receipt of the records by the learned WC Commissioner and till such assessment is made, the amount lying with the WC Commissioner shall not be disbursed. Send down the records immediately. 14. Considering the fact that the workman is an ill-fated driver of the vehicle, the amount already withdrawn by him from the WC Commissioner may not be taken back as he might have spent the same.