JUDGMENT & ORDER : 1. Heard Mr. A. Dutta, learned counsel appearing for the appellant. I have also heard Mr. J. Kalita, learned counsel representing respondent no.1. None appears for the respondent no. 2. 2. The present appeal has been preferred against the judgment and award dated 16/07/2012 passed by the Commissioner of Workman’s Compensation, Kamrup, Guwahati in W.C. Case No. 140/2007 awarding a sum of Rs. 3,02,285/- as compensation to the respondent no.1/claimant on account of loss of earning capacity due to the injuries suffered by him with a direction to pay the amount within 30 days from the date of the award, with a stipulation that the amount would carry interest at the rate of 12% per annum in case of failure to make the payment within the aforesaid time. 3. The appeal was admitted by this court to be heard on the following substantial question of law :- “Whether the learned Commissioner, Workmen’s Compensation was justified in awarding the compensation under the provisions of Section 4(1)(c) (ii) of the Employees’ Compensation Act?” 4. The facts of the case, briefly stated, are that the respondent no. 1 was employed as a driver in the vehicle (Auto Van) bearing Registration No. AS 01/X-9671, owned by the respondent no. 2, which had met with an accident on 13/08/2006. In the said accident, the claimant had sustained grievous injuries in his left leg and was immediately admitted to Agile Hospital, Guwahati. Later on his left leg was operated upon in the Nemcare Hospital for which he had to remain admitted for 6/7 days. According to the claimant, the injuries suffered by him had resulted permanent disability preventing him from doing the job of a driver. Alleging loss of earning capacity on such count, the respondent No 1 as claimant had filed the application under Section 22 of the Workman’s Compensation Act, 1923, seeking compensation. Since the auto van was insured with the appellant company, hence, the appellant was impleaded as respondent no. 2 in the W.C. case No. 140/2007. 5. As per the statements made in the claim petition, the accident took place while the respondent no 1 was on duty and that at the time of the accident, claimant was aged about 28 years and earning a salary of Rs. 4,000/- per month. 6. 2 in the W.C. case No. 140/2007. 5. As per the statements made in the claim petition, the accident took place while the respondent no 1 was on duty and that at the time of the accident, claimant was aged about 28 years and earning a salary of Rs. 4,000/- per month. 6. The claimant had examined himself as the PW-1 whereas the doctor, who had assessed the disability status of the claimant, was examined as the PW-2. The PW-2 had deposed before the learned Commissioner that the injury suffered by the claimant was called “locomotive disability”. According to the PW-2, the injury suffered by the claimant in the accident had resulted into 50% disability which was of permanent nature leading to loss of earning capacity of the claimant to the extent of 60%. Taking note of the materials on record including the opinion of the doctor, the learned W.C. Commissioner had awarded the sum Rs 3,02.285/- as compensation taking the income of the claimant as 4000/- p.m. and his age at the time of the accident as 29 years. 7. Assailing the impugned award, Mr. Dutta submits that in the present case, the respondent no. 1 did not lead any evidence to show that the accident had resulted into permanent disability on account of which, he was prevented from taking up every employment which he was capable of undertaking at the time of the accident. Placing reliance on the decision of this court in the case of National Insurance Company Ltd. Vs. Bimal Nath and others reported in 2009(1) GLT 370, Mr. Dutta submits that it is a case of non-schedule injury and therefore, unless the claimant succeeds in establishing that he was prevented from taking up every employment which he was capable of undertaking at the time of the accident no compensation can be awarded to him under section 4(1)©(ii) of the Employees Compensation Act, 1923. On such ground, submits Mr. Dutta, the impugned award is un-sustainable in law and hence, liable to be set aside by this court. The learned counsel for the appellant has, however, submitted in all fairness that in the facts of the case the claimant may be entitled to compensation as per section 4(1)(d) of the Act of 1923. 8. Mr. J. Kalita, learned counsel for respondent no. The learned counsel for the appellant has, however, submitted in all fairness that in the facts of the case the claimant may be entitled to compensation as per section 4(1)(d) of the Act of 1923. 8. Mr. J. Kalita, learned counsel for respondent no. 1, on the other hand, has argued that in the present case, there is sufficient medical evidence on record to show that the claimant had suffered permanent disability resulting into reduction of his earning capacity inasmuch as due to the injuries suffered by him, the claimant was unable to continue to work as a driver. Since the claim of the claimant comes under Section 4(1)(c) (ii) of the Act of 1923, which deals with non-schedule injury, hence, the law laid down in the case of Bimal Nath and others (Supra)would not be applicable to the facts of the case. 9. Mr. Kalita further submits that the language employed in section 4(1)(c) (ii) is clear and unambiguous and since the said provision does not enjoin any duty upon the Court to ascertain as to whether the claimant could have undertaken any other employment which he was capable of undertaking on the date of the accident, there was no scope for the court to take a negative view in the matter. In support of his above argument, the learned counsel has placed reliance on a decision of the Supreme Court rendered in the case of State of Jharkhand and another Vs. Govind Singh reported in (2005)10 SCC 437 , 10. It is the further submission of Mr. Kalita that the decision in the case of Bimal Nath and others (Supra) did not take into consideration the earlier decision of the Supreme Court in the case of National Insurance Co. Ltd. vs. Mubasir Ahmed and another reported in (2007) 2 SCC 349 and, therefore, the decision in the case of Bimal Nath and others (Supra)is a judgment per-in curiam. 11. I have considered the submissions advanced by the learned counsel for both the parties and have also gone through the materials available on record. 12. There is no dispute in this case about the fact that the injuries suffered by the claimant are non-schedule injuries and the same had resulted into permanent partial disablement of the claimant. It is also not in dispute that the salary earned by the claimant on the date of accident was Rs. 12. There is no dispute in this case about the fact that the injuries suffered by the claimant are non-schedule injuries and the same had resulted into permanent partial disablement of the claimant. It is also not in dispute that the salary earned by the claimant on the date of accident was Rs. 4,000/- per month. As noted above, the basic challenge to the award is on the ground of computation of the amount of compensation under section 4(1)(c) (ii) of the Act of 1923. 13. Section 2(1)(g) of the Act of 1923 defines “Partial Disablement” which is quoted herein below :- “(g) "partial disablement" means, where the disablement is of a temporary nature, such disablement as reduces the earning capacity of a workman in any employment in which he was engaged at the time of the accident resulting in the disablement, and, where the disablement is of a permanent nature, such disablement as reduces his earning capacity in every employment which he was capable of undertaking at that time : provided that every injury specified [in Part-II of Schedule-I] shall be deemed to result in permanent partial disablement”. 14. In the case of Bimal Nath and others (Supra), three appeals involving common questions of law were taken up together for disposal by this court. All the three appeals had been preferred by the Insurances Companies as appellant assailing the award of compensation made by the respective W.C. Commissioners. The claimants in all those cases were similarly situated as the respondent No 1 here-in and had suffered injuries while working as a driver which had incapacitated them from driving the motor vehicle. This court had framed the following common substantial questions of law for decision in the appeals :- “(i) Whether the injuries sustained by the claimant not being one as specified in Schedule-I Part-II of the Act and there being no evidence and finding at all to show that the alleged disablement of the claimant reduces his earning capacity in every employment which he was capable of undertaking at the time of accident, the learned Commissioner was justified in granting compensation in accordance with the provisions of Section 4(1)(c) of the Act? (ii) Whether the medical practitioner having assessed the loss of earning capacity of the claimant at 30% without due regard to the percentage of loss of earning capacity in relation to the injuries specified in Scheduled-I of the Act, the learned Commissioner was justified in acting upon the said purported assessment and granting compensation under Section4(1)(c) of the Act? 15. Answering the first substantial question of law in favour of the appellant, the learned Single Judge had made the following observations in the case of Bimal Nath and others (Supra), which are quoted herein below for ready reference : “22. It would appear from the definition of' partial disablement' in Section 2 (1)(g) of the Act that to constitute 'permanent partial disablement' arising out of an injury not specified in Part-II of Schedule-I of the Act, it must be such disablement of a permanent nature which reduces the earning capacity of the workman in every employment which he was capable of under taking at the time of accident resulting in the disablement. The legislature has used different languages while defining the 'temporary partial disablement' and 'permanent partial disablement'. To constitute the 'permanent partial disablement', arising out of non-schedule injury, it must be proved by the workman concerned that the disablement resulting from the injuries has incapacitated him in performing any other employment which he was capable of undertaking, apart from the employment in which he was engaged at the time of accident. It, however, does not mean all sorts of employment but means such employment, which the workman is capable of undertaking at the time of accident, depending on the nature of skill possessed by the workman and the skill required for the purpose of such employment. To assess the amount of compensation payable to a workman and in calculating the loss of earning capacity, within the meaning of the Act, the possibility of the workman discharging a different type of job must be borne in mind. However, every injury specified in part-II of Schedule-I shall be deemed to result in 'permanent partial disablement'”. 16. After considering the relevant provisions contained in the Act of 1923 as well as the various judicial pronouncements of different High Courts on the said point, the learned Single Judge had further held in paragraph 24 as follows:- “24. However, every injury specified in part-II of Schedule-I shall be deemed to result in 'permanent partial disablement'”. 16. After considering the relevant provisions contained in the Act of 1923 as well as the various judicial pronouncements of different High Courts on the said point, the learned Single Judge had further held in paragraph 24 as follows:- “24. From the aforesaid discussions, it is, therefore, clear that while assessing the compensation u/s 4(1)(c)(ii) what the learned Commissioner, is required to find out is-whether such disablement is of a permanent nature which reduces the earning capacity of the work man in every employment which he was capable of under taking and not merely the particular employment in which he was engaged at the time of accident. For instance, if a Driver claims compensation contending that he suffers disablement of permanent nature, because of the injuries sustained by him, on his hands or legs, what is to be seen by the commissioner is whether such disablement reduces his earning capacity as Driver or reduces his earning capacity in any other employment which he was capable of undertaking, depending on his skill. The burden of proving the disability and the reduction of earning capacity is obviously on the workman who claims the benefit of the Act. If the Commissioner finds that though the workman's earning capacity has been reduced in the employment in which he was engaged at the time of accident but has not been reduced in respect of other employment, which he was capable of undertaking at the time of accident, depending on the skill, the compensation cannot be assessed u/s 4(1)(c)(ii) of the Act. In that event, the compensation has to be assessed u/s 4(1)(d) of the Act. The workman, however, by adducing acceptable evidence, can establish that because of the injury his earning capacity has not only been reduced in respect of the work which he was performing before the accident but also in respect of any other employment, depending on his skill and also the skill required for other works, which he was capable of under taking at that time, in which event it would amount to 'permanent partial disablement', provided the disablement is of a permanent nature.” 17. From a plain reading of the aforementioned observations made in the decision rendered in the case of Bimal Nath (Supra), there can be doubt about the fact that in case of non-schedule injuries no compensation on account of reduction of earning capacity can be granted under section 4 (1) (c) (ii) of the Act of 1923 unless it is established by leading cogent evidence that the permanent disablement had prevented him from undertaking every employment which he was capable of accepting at the time of the accident. The law declared in the case of Bimal Nath (Supra)would lay down a binding precedent to be followed by this court. 18. In the present case, there is no dispute about the fact that the claimant had failed to lead any evidence to show that the disablement had prevented him from undertaking every employment which he was capable of undertaking at the time of the accident. On the contrary, the PW-2 i.e. the Doctor had deposed in his cross-examination that the disablement suffered by the claimant would not prevent him from undertaking other employment. Therefore, the claimant had evidently failed to establish his claim for payment of compensation under section 4 (1) (c) (ii) of the Act. 19. For the reasons stated, I have no hesitation in holding that the compensation awarded by the learned Commissioner under section 4(1)© (ii) of the Act of 1923 in this case is in clear violation of the law laid down by this Court in the case of Bimal Nath and others (Supra)and hence, was illegal. 20. Although Mr. Kalita has argued that the decision in the case of Bimal Nath and others (Supra) was a judgment per-in-curiam, yet, I find that the question that had arisen for consideration of the Hon’ble Supreme Court in Mubasir Ahmed and another (supra)is different from one arising in the present appeal. In that case the insurer had assailed the decision of the High Court whereby it was held that there was 100% loss of earning capacity without indicating any basis for recording such a conclusion. Therefore, the ratio laid down in Mubasir Ahmed and another(supra)would have no bearing in the facts of this case. Likewise, the reliance placed on the decision rendered in the case of Govind Singh (supra) would also be of no assistance to Mr. Therefore, the ratio laid down in Mubasir Ahmed and another(supra)would have no bearing in the facts of this case. Likewise, the reliance placed on the decision rendered in the case of Govind Singh (supra) would also be of no assistance to Mr. Kalita for the simple reason that this court cannot sit in appeal over the decision in the case of Bimal Nath(supra)rendered by a co-ordinate bench. 21. Now coming to the question as to whether the claimant in this case would be entitled to any compensation for the injuries suffered by him, as noted above, Mr. Dutta has fairly submitted that the appellant would not contest the claim of the respondent No 1 if the compensation is worked out under Section 4(1)(d) of the Act of 1923. 22. Taking note of the submission of the learned counsel for the appellant, it is hereby provided that taking the monthly salary of the claimant to be Rs. 4,000/- the amount of compensation be paid to him as per section 4(1)(d) of the Act of 1923 for a period of 5 (five) years. The interest awarded by the learned W.C. Commissioner, as applicable, would now be computed on the amount payable under section 4(1) (d). The balance amount, if any, payable to the claimant after adjusting the amount already deposited before the Registry of this Court under the award, would be paid within 30 days from today. 23. The impugned award stands modified to the extent indicated above. 24. The appeal is partially allowed. 25. The respondent no. 1/claimant is granted liberty to approach the Registry with appropriate application for withdrawal of the amount as per the determination made in this order. There would be no order as to costs. Send back the LCR.