JUDGMENT : 1. This appeal is filed by the employer challenging the judgment and award dated 18.4.2011 in WCA/NFC/CR-152/2006 on the file of the Labour Officer and the Commissioner for Workmen's Compensation, Mysuru (for short 'the Commissioner). The Commissioner has allowed the respondent's claim petition under Section 10 of the Employees' Compensation Act, 1923 (for short 'the Compensation Act') granting a total sum of Rs. 1,18,236/- along with interest. 2. The undisputed facts are that the respondent, who was in employment with the appellant as a Serviceman, met with an accident within the appellant's factory premises in the course of his employment on 27.03.2005 at about 10:20 AM. The respondents left knee was injured, and was immediately taken to the appellant's Occupational Health Centre. However, the respondent was later referred to M/s Raman Medical Services, Krishnarajapuram, Mysore, and he was also treated at JSS Hospital, Mysore and Vikram Hospital, Mysore. The respondent could not attend work until 25.7.2005 when he reported to work with Fitness Certificate. The appellant met with all the medical expenses. 3. It is also undisputed that the respondent has continued in employment with the appellant without interruption, and the respondent, as of the date of the disposal of the claim petition by the Commissioner, was working as Tyre Builder. Further, it is undisputed that the appellant has paid all timely increments to the respondent with appropriate promotions. 4. The respondent filed claim petition contending that he has suffered partial disablement because of the injuries suffered in the accident in the course of his employment with the appellant and therefore, he is entitled for compensation under Section 10 of the Employee's Compensation Act, 1923. The appellant contested the claim petition asserting that the respondent had only suffered blunt injury in the left knee. He has received all assistance from the appellant and is completely recovered. The respondent, because he has not suffered any permanent partial disability, is able to work regularly and receive all timely increments and promotions. 5. The respondent examined himself in support of the claim petition as PW-1, and also examined a Doctor from Vikram Hospital, Mysore as PW-2. He has received all assistance from the appellant and is completely recovered. The respondent, because he has not suffered any permanent partial disability, is able to work regularly and receive all timely increments and promotions. 5. The respondent examined himself in support of the claim petition as PW-1, and also examined a Doctor from Vikram Hospital, Mysore as PW-2. The Doctor has opined that the respondent has suffered permanent partial disablement inasmuch as he cannot squat or climb stairs, and further, the Doctor has opined that, given the nature of the injury suffered by the respondent and the resultant disability, the work done by the respondent and his experience, the respondent has suffered a loss of earning capacity by 25%-30%. The Commissioner has accepted the Doctor's opinion, and concluded that the respondent has suffered loss of earning capacity by 25%. The Commissioner has accordingly granted award based on the age of the respondent and taking the income at Rs.4,000/- per month. Insofar as the appellant's defense that the respondent has continued in employment and received timely increments and promotions, the Commissioner has declined to accept in the premise that the same cannot be a ground for refusal of compensation to the respondent under the Compensation Act. 6. The learned counsel for the appellant submits that the undisputed facts are that the respondent - employee, who was working as 'Serviceman' as on the date of the accident, has continued in employment, and he has received timely promotions with appropriate increments. He is presently working as 'Tube Extruder Booker/Checker' with the Passenger Tyre Building Division and his present monthly income is Rs.47,597.49. These circumstances demonstrate that the respondent/employee has not suffered any permanent partial disablement. 7. The learned counsel for the appellant argues that though the respondent has not suffered permanent disablement, the Commissioner has granted compensation holding that the respondent has suffered partial permanent disablement resulting in 25% of the loss of earning capacity. The Commissioner, in assessing the permanent partial disablement and the consequential loss of earning capacity, had to decide whether the respondent had suffered permanent partial disablement in the sense that he was incapable of doing all the work that he was doing or could be done by him immediately prior to the accident. The Commissioner, in assessing the permanent partial disablement and the consequential loss of earning capacity, had to decide whether the respondent had suffered permanent partial disablement in the sense that he was incapable of doing all the work that he was doing or could be done by him immediately prior to the accident. But the Commissioner has assessed the loss of earning capacity at 25% only because the doctor has assessed the permanent partial disability at 25% without specifically stating the hindrance to the respondent in working. The Doctor has only stated that the respondent has difficulties in sitting and walking. The assessment of permanent partial disability at 25% is contrary to law. The learned Counsel for the appellant relies upon the decision of a Division Bench of this Court in New India Assurance Company Limited vs. Subhas reported in 2005 AIR Kant. HCR 972. 8. The learned counsel for the respondent, on the other hand, contends that the appellant cannot dispute its liability only on the ground that the respondent has continued in employment and received promotions and increments if it is established that the respondent has suffered permanent partial disablement in the sense that the respondent is incapable of doing all the work that he could have done at time of the accident because of the injuries suffered. It is not normally possible for an employee to establish the loss of earning capacity if he has continued in his employment. In the event the employer discharging the employee, or the employee losing his job, the employee would suffer a disqualification because of the injury and also be denied the compensation under the Compensation Act. Therefore, the Commissioner has to assess the loss of earning capacity in the light of medical evidence estimating the employee's inability in securing work in the open labour market as if he had not continued in employment. The Commissioner, in accepting the doctor's evidence, has estimated the loss of earning capacity in the aforesaid circumstances and as such, no interference is called for with the Commissioner's Judgment and award. 9. The Commissioner, in accepting the doctor's evidence, has estimated the loss of earning capacity in the aforesaid circumstances and as such, no interference is called for with the Commissioner's Judgment and award. 9. In the light of the rival submissions, the substantial question that arises for consideration in this appeal is, "Whether the Commissioner's assessment that the respondent has suffered partial permanent disability resulting in 25% of loss of earning capacity because qualified medical practitioner, who is examined as PW to on behalf of the respondent, has accordingly assessed is justified in law." 10. The Division Bench of this Court in New India Assurance Company Limited vs. Subhas, supra was deciding amongst others the following questions: "(i) To what extent the Commissioner is bound by the assessment by the Qualified Medical Practitioner in regard to permanent loss of earning capacity caused by the injury or in regard to physical disablement, and (ii) Whether 'total disablement' and partial disablement' are to be determined with reference to all work done in connection with the job/employment of such a workman immediately prior to the accident with reference to any and all work in general which the workman was capable of performing immediately prior to the accident. The Division Bench in answering the first of the questions has referred to the full bench decision of this Court in Shivalinga Shivanagowda Patil vs. Erappa Basappa Bhavthala, ILR 2004 Kant. 193 wherein it is held as follows "Under the scheme of the Act, the Commissioner is discharging the judicial function insofar as settlement of disputes are concerned. That is why the law declares that he shall be a Civil Court for the purpose of settling the disputes and the Civil Court's jurisdiction is ousted. Issues are to be framed, judgement as to be rendered answering each issue raised in the case. Therefore, it is clear that the assessment made by a qualified medical practitioner is only in the nature of an expert advice given to assist the Commissioner to determine the amount of compensation payable which the Commissioner is bound to take note of. Issues are to be framed, judgement as to be rendered answering each issue raised in the case. Therefore, it is clear that the assessment made by a qualified medical practitioner is only in the nature of an expert advice given to assist the Commissioner to determine the amount of compensation payable which the Commissioner is bound to take note of. As stated, if the correctness or validity of the said assessment is disputed by either of the parties, he is bound to pronounce this decision on the same which includes not agreeing with the assessment made by the qualified medical practitioner if the evidence on record otherwise supports such a contention or for any good reason". The Division Bench in the light of the aforesaid exposition by the Full Bench has concluded that the Commissioner's power to decide whether an employee has suffered permanent total disablement or partial permanent disablement, as a result of the injuries, on the basis of evidence led in before him, remains unaffected by amendment to include 'as assessed by the qualified medical practitioner' in section 4(1)(C)(ii) of the Compensation Act. Further, the Division Bench has emphasised that the Full Bench has declared that determination of the loss of earning capacity has to be with reference to "all the work" which the employee was capable of performing at the time of the accident resulting in disablement and not with reference to the specific work which the employee was discharging. However, this is subject to the onus on the employee to establish, by acceptable evidence, that after the injury not only he is not able to do the work which he was performing before the accident but is unable to do any other work. 11. The question whether an employee has suffered total permanent disability or partial permanent disability, or what percentage of partial permanent disability, will have to be decided on the basis of whether the employee is able to do all the work that he was capable of doing at the time of the accident. The employee must establish by acceptable evidence that he is unable to do all the work that he was doing before the accident. A qualified Medical Practitioner/s evidence in this regard would assist the Commissioner in deciding whether an employee has suffered total permanent disability or partial permanent disability or the percentage of partial permanent disability suffered by the employee. The employee must establish by acceptable evidence that he is unable to do all the work that he was doing before the accident. A qualified Medical Practitioner/s evidence in this regard would assist the Commissioner in deciding whether an employee has suffered total permanent disability or partial permanent disability or the percentage of partial permanent disability suffered by the employee. In the event the assessment by the Qualified Medical Practitioner is disputed, as in the present case, the Commissioner will have to decide on the same in the light of the evidence on record and if necessary, by having the employee re-examined by an independent qualified medical practitioner. 12. However, in the present case, the Doctor, a qualified medical practitioner who is examined as PW-2,has only spoken of the difficulties for the respondent in squatting and climbing stairs and that the loss of earning capacity would be in the range of 25-30% without justifying the assessment with the necessary details as regards the restriction in the movement of the left lower limb and the resultant difficulties for the respondent in doing all the work. Therefore, the evidence of the Doctor, PW-2, could not be sufficient to assist the Commissioner in deciding on the percentage of partial permanent disability. The respondent is not examined by any independent Qualified Medical Practitioner. The Commissioner, to decide on the percentage of the partial permanent disablement, should have examined the assessment of the qualified medical practitioner viz., PW-2 in the light of the undisputed fact that the respondent has continued in employment with the appellant receiving all increments and promotions without any detriment, and decided whether the respondent is unable to do all the work that he was doing at the time of the accident. But the Commissioner has not undertaken this exercise. If the admitted facts are thus examined, the only reasonable inference would be that because the respondent is able to do all the work that he was capable of doing at the time of the accident, he has continued in employment with the appellant receiving all timely increments and promotions. Therefore, the question of law framed is answered in favour of the appellant. For the foregoing, the appeal is allowed and the impugned judgment and award dated 18.4.2011 in WCA/NFC/CR-152-2006 on the file of the Labour Officer and the Commissioner for Workmen's Compensation, Mysuru is set aside. Therefore, the question of law framed is answered in favour of the appellant. For the foregoing, the appeal is allowed and the impugned judgment and award dated 18.4.2011 in WCA/NFC/CR-152-2006 on the file of the Labour Officer and the Commissioner for Workmen's Compensation, Mysuru is set aside. The amount in deposit be refunded to the appellant.