JUDGMENT : This is an appeal under Section 30 of the Workmen Compensation Act, 1923 challenging the judgment and award dated 31.8.2000 passed by the W.C. Commissioner, Dhubri in W.C Case No.14 of 2005. The aforesaid WC Case was registered upon claim filed by one Sanowar Hussain @ Sanowar Ali stating that he was engaged as a driver of truck bearing registration No.ASG-3751 belonging to Purna Chandra Karmakar. On 8.2.2005 while the claimant was driving the vehicle to Dhubri from Siliguri another truck dashed the vehicle from behind at 12.15 am near village Valkopa Ehogramguri under Mathabanga Police Station and as a result petitioner sustained grievous injury resulting in dislocation of his right foot and fracture. He was shifted to Mathabanga S.D.Hospital wherefrom he was referred to Anandaloka Hospital of Siliguri and thereby he was re-admitted to North Bengal Medical College and remained there for seven days. He was again admitted to Dhubri Civil Hospital from 21.2.2005 to 9.3.2005. According to him he became disabled permanently and lost his earning capacity totally. He stated that he earned Rs.2500/- per month and Rs.80/- as daily allowance which comes to Rs.4400/-per month and that he was 20 years of age at the time of accident. On being summoned the opposite party No.1, owner appeared and admitted that workmen sustained injury in course of employment. He disclosed that the vehicle was insured with the opposite party No. 2, Oriental Insurance Company Ltd.. The opposite party No. 2 denied responsibility in entirety. 2. The W.C. Commissioner framed as many as four issues basing on the rival contention of the parties which are quoted below: (1) Is there any cause of action for the claim petition? (2) Whether the claim petition is sustainable 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 ? 3. Claimant examined himself as witness and exhibited some documents to show that he had sustained injuries Exhibits 1 and 2 are the discharge certificates, Exhibit-3 is the disability certificate given by Dhubri Medical Board, , Exhibits-4, is the x-ray report, Exhibit- 8 is the coloured photo of the damaged vehicle. Exhibit-9 is the certificate of Anandaloka Hospital, Exhibit-10 is the accident information report etc. Exhibit-9 is the certificate of Anandaloka Hospital, Exhibit-10 is the accident information report etc. The W.C Commissioner held that the claim petition is maintainable and it has got cause of action and then proceeded to decide the compensation amount. In so doing, WC Commissioner presumed the monthly income of the workmen to be Rs.4000/- and accordingly made calculation and arrived at the calculation to be Rs.2,63, 940/- by presuming that the workmen lost earning capacity to the extent of 50%. But no qualified medical practitioner was examined for the purpose though the injury is non-scheduled one. The insurance company has preferred the appeal challenging this award, inter-alia, on the ground that the WC Commissioner cannot presume loss of earning capacity without there being deposition by qualified medical practitioner and that WC Commissioner committed error in presuming monthly wage of the workmen to be Rs.4000/- although workmen exhibited salary certificate as Exhibit-12 which shows the workmen was getting Rs.3400/- per month including daily wage. 4. I have heard Mr. SK Goswami, learned counsel for the appellant and Mr. AR Agarwala, learned counsel for the respondent. I have also perused the deposition and the exhibits available on record. Section 4-(1) ( c ) (ii)) of the WC Act, 1923 provides that in case of non-scheduled injury proportionate compensation is to be paid to the workmen on the basis of loss of earning capacity to be assessed by a qualified medical practitioner . Very language of Section 4-(1) (c) (ii) of the Act suggests that W.C Commissioner himself cannot make the exercise without there being opinion of the qualified medical practitioner. This court on a number of occasions had already held that in case of non-schedule injury , claimant is duty bound to examine a qualified medical practitiooner so as to enable the WC Commissioner to arrive at a finding regarding extent of the loss of earning capacity of the workmen. If any reference is needed by anyone, one can take help from the case of the New India Assurance Company –vs- Sanjiv Kumar reported in 2000(2) GLT 567. Para-2 of the judgment is quoted below for ready reference: “(2) I have heard Mr. SK Borkataki, learned counsel for the appellant and Mr. G.P.bhowmick, learned counsel for respondents. It is urged by Mr. Para-2 of the judgment is quoted below for ready reference: “(2) I have heard Mr. SK Borkataki, learned counsel for the appellant and Mr. G.P.bhowmick, learned counsel for respondents. It is urged by Mr. Borkataki, learned counsel for the appellant as follows: (i)That the mode of assessment of loss of earning capacity and the person competent to assess it have been provided in Section 4 of the Act. While judging the loss of earning capacity, the basis of sound principle of medical science and assessment done by a qualified medical practitioner plays a vital role, who is a “qualified medical practitioner” has also been defined under the Act. The degree of disability and loss of earning capacity are not synonymous. There must be a basis for it, but not mere guess work and as such while doing assessment of the loss of earning capacity the qualified medical proacitioner will have due regard to different injuries specified in Schedule-I. If the Commissioner does not keep in view the requirement of law and passes an award such an award involves substantial question for determination in an appeal and as such an appeal lies to this court as contemplated under Section 30 of the W.C. Act. (ii) In view of the specific requirement of the provisions of Section 4(1) © (ii) of the Workmen’s Compensation Act, that the loss of earning capacity is to be assessed by a qualified medical practitioner it cannot be said to be a mere formality. The qualified medical practitioner also cannot assess the loss of earning capacity in his guess work but the nature of injuries, the percentage of physical disability, the capacity of the injured to perform the nature of work with specific reference to the type of the work he is engaged in and several other such factors to come to a finding with regard to the loss of earning capacity . In that view of the matter, in absence of the evidence of the doctor in that regard it is not permissible for the Court to find out only from the evidence of physical disability to the extent of loss in earning capacity. The commissioner, Workmen’s compensation in the present case a hand having assessed the loss, without any specific evidence of the doctor, as required under law, the award/judgment is not sustainable in law. 5. The commissioner, Workmen’s compensation in the present case a hand having assessed the loss, without any specific evidence of the doctor, as required under law, the award/judgment is not sustainable in law. 5. In the case in hand, workmen complained of non-scheduled injury and so in view of law discussed above, claimant was duty bound to examine a qualified medical practitioner for the purpose of assessing the loss of earning capacity . The WC Commissioner committed error of jurisdiction in assessing the loss of earning capacity himself without their being any examination of qualified medical practitioner and so the impugned judgment and award is liable to be set aside. 6. This court while admitting this appeal on 28.10.2013 framed the following substantial question of law: “ Whether the learned Commissioner, Workmen’s Compensation was justified in assessing the amount of compensation by taking the loss of earning capacity as 50%.” 7. In view of the discussion made above, the sole substantial question of law decided by this court has to be decided in the negative and in favour of the appellant holding that in the absence of evidence by a qualified medical practitioner, the WC Commissioner was not justified in assessing the loss of earning capacity of the workmen at 50%. Sole substantial question of law is accordingly decided and the impugned judgment is hereby set aside. The WC Commissioner shall decide the case afresh after affording opportunity to the parties to examine a qualified medical practitioner for the purpose of indicating the compensation. Both the parties shall appear before the WC Commissioner on 3.8.2015. The records shall be sent by the Registry to the WC Commissioner in the meantime. 8. It is needless to mention here that amount already received by the workmen by virtue of interim order which shall be adjusted against the final award to be passed again by the WC Commissioner.