Sinha, C.J. - (1.) This is an appeal against an order of the Commissioner Workmen's Compensation, West Bengal dated 21st August, 1963 whereby he has ordered a sum of Rs. 840 to be paid to the workman concerned by way of compensation. The facts are shortly as follows: The workman Prayag Ram was employed by a contractor working under the Commissioners for the Port of Calcutta, us a porter No. 2, Calcutta jetty belonging to the said Commissioners. On the 27th day of November, 1962 in course of his employment, a bundle of paper fell on the left foot of the workman, causing injuries. The workman made an application for compensation on 8th of April, 1963. The employer took a number of objections, namely, that the application is barred by limitation, that the accident did not arise in course of employment etc. We are not however concerned in this case with any such objections because there is only one objection that has been placed before us which will be presently mentioned. At the hearing before the Commissioner, the only evidence adduced was oi two doctors, one on each side. On behalf of the workman, Dr. S.K. Neogy gave evidence. Previous to his examination before the said tribunal, Dr. Neogy had given a medical certificate dated 21st August 1963 a copy whereof is at pages 2.5-26 of the paper book. At the examination before the tribunal he merely proved this certificate which is marked as Ext. 1 but he did not state that the statements contained therein were true or correct. We should, therefore, go by his deposition given before the tribunal. This evidence is to be found at pages 15-16 of the paper book. He states that there was: "Bony tenderness, swelling, deformity of the 1st cuneiform bone of the left foot, suggesting a mal-united fracture. Bony tenderness and swelling of the 1st meta-tarsal bone with rigid joint. The gait was limping." As regards loss of earning capacity, there is a summary statement "I assess at 20 per cent."
(2.) On behalf of the employer, Dr. R. Choudhury was examined. He has given evidence as follows; "There is swelling on the medial side at the terminal portion of the 1st metatarsal bone, but there is no bony tenderness here. There is only tenderness of the soft tissues. There is a very faint tenderness over the medial cuneiform bone. No swelling there either of bone or of soft tissues. Gait is normal and movements are normal." This doctor also makes a summary assessment of the loss of earing capacity by saying--"My assessment is 5 per cent". Besides the evidence of these two doctors, two skiagrams and the relevant report of the radiologist have been put in on behalf of the workman. I do not see how, in the absence of calling the persons making the report or the skiagrams, they be taken as evidence, but I need not dilate here on this aspect because nothing turns upon it. The Commissioner, after considering the evidence came to the conclusion that there has been no permanent disablement in respect of the 1st metatarsal bone, but there has been such disablement in respect of the medial cuneiform bone which was "serious enough". He then proceeded to say--"I assess the extent of permanent disablement, affecting earning capacity at 20 per cent." He then held that as his monthly wage belonged to the category of Rs. 80 to Rs. 180 the applicant was entitled to a sum of Rs. 840 and as he had already received a sum of Rupees 99.17 nP. he was entitled to recover a sum of Rs. 740.83 nP. by way of compensation. The only point pressed before us on behalf of the appellant is that the loss of earning capacity had not been proved and accordingly the award of compensation is illegal and should be set aside. In the facts and circumstances of the case, we are of the opinion that this point is of substance and should be upheld. The relevant provisions of the Workmen's Compensation Act, 1923 (Act VIII of 1923) (hereinafter referred to as "the said Act") are as follows: The preamble of the said Act states that it is an Act to provide for the payment by certain classes of employers to their workmen of compensation for injury by accident. Under Clause (c) of Section 2(1) "compensation" means compensation as provided for by the said Act. Under Clause (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. Under Clause (1) "total disablement" means such disablement, whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement. In certain injuries which are specified in Part I or II of Schedule I, there is a presumption of either total or partial disablement. Under Section 3(1) of the said Act, if a personal injury is caused to a workman by accident arising out of and in course of his employment, his employer shall be liable to pay compensation in accordance with the provision of Chapter II of the said Act. Section 4 of the said Act deals with the amount of compensation. The relevant provision is as follows: "4. (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely: A................................ B.... ........ .................. C. Where permanent partial disablement results from the injury- (i) ..... . ................. (ii) in the case of an injury not specified in part II of Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity permanently caused by the injury." Coming now to the order of the Commissioner, we find that he had only the evidence of two doctors before him which are contradictory. He has come to the conclusion that the permanent disablement was in respect of the medial cuneiform bone. He has said that this injury was "serious enough". It is not disputed before us that this injury is not one which is mentioned in Part II of Schedule I to the said Act. There is no finding that there was complete and permanent loss of the use of any limb or member of the workman concerned. The question is whether the amount of compensation due to the workman has been proved in accordance with law. It is to be regretted that in spite of two appellate bench judgments of this Court, clearly laying down the law, the Commissioner wholly ignored the same and came to a conclusion which cannot be supported, The calculation of compensation in a case such as the present one is to be done under Section 4(1)(c)(ii), which has been set out above. The percentage of compensation payable is proportionate to the "loss of earning capacity" permanently caused by the injury. What has to be estimated is the loss of earning capacity caused by the injury, which is quite a different thing from the loss of physical capacity. As has been pointed out in the House of Lords' ease, Ball v. William Hunt and Sons Ltd., 1912 AC 496, the Workmen's Compensation Act regarded a workman only as a wage-earner and was concerned not with any physical pain or suffering or disfigurement to which a workman might be subjected by acci dent, but only with the loss of power to earn wages resulting from the injury. The physical defect if occurs as a result of the accident may not in fact reduce his capacity to do work, but if as a result of disfigurement or otherwise it makes his labour unsaleable to any market reasonably accessible to him then also there will be a diminution of loss in the earning capacity, "Incapacity for work" is not the same thing as "incapacity to work." It means the loss or diminution of wage-earning capacity and it includes inability to work if that be the result of the accident. Martin v. Barnett, (1910) 2 BWCC 146; 1912 AC 496 (Supra); Bywater v. Stothert, (1932) 25 BWCC 422 Lord Loreburn said in 1912 AC 496 (supra). "There is incapacity for work when a man has a physical defect which makes his labour unsaleable in any market reasonably accessible to him, and there is partial incapacity for work when such a defect makes his labour saleable for less than it would otherwise fetch." Lord Greene, M. R. in Alien v. Tinsley Park Collieries, Ltd., (1944) 37 BWCC 28 said: "Incapacity for work is not to be ascertained simply by finding that the workman is suffering from a continuing physical injury; it is to be ascertained by reference to his incapacity to earn wages. If his wage-earing capacity is diminished he is suffering from a partial incapacity for work; if, on the other hand, his wage-earning capacity has not been affected in the least, then notwithstanding the fact that he may be suffering from the consequences of a physical injury, he is not incapacitated for work and he is not entitled to compensation." Before the principle of Ball's case, 1912 AC 496 can be applied, there must be evidence that the workman has made reasonable efforts to obtain work but has been unsuccessful by reason of the disfigurement or other obvious results of his injury. It is clear, therefore, that the loss of "earning capacity" is a issue of fact which must be proved by evidence of physical injury resulting in a loss of earning capacity. In the instant case, it was held that there was permanent disablement of the medial cuneiform bone. In the absence of other evidence it does follow that there will be a diminution in the earning capacity of the workman concerned. This Court has repeatedly pointed out that this issue cannot be decided upon medical evidence only. The first case is a decision of a Division Bench presided over by Derbyshire. C. J.--Agent, East Indian Railway v. Maurice Cecil Ryan, AIR 1937 Cal 526. In that case the respondent workman was employed by a railway company as a gunner guard who received serious injuries to his spine and he relied on a certificate given by a medical officer. At the hearing, the evidence called was of a doctor. The learned Chief Justice said as follows: "What has to be estimated is the loss of earning capacity caused by the injury. That is a different thing from the loss of physical capacity. It is the loss of earning capacity. As a surgeon Mr. Banerjee might well estimate the loss of physical capacity for work, but the loss of earning capacity must be estimated by some other person. The best estimate that can be given is by those people who would have the opportunity of seeing the workman work before and after the accident."
(3.) In another Bench decision of this court, presided over by Chakarvarti, C. J. Kali Das Ghosal v. S.K. Mondal, the learned Chief Justice expressed the same view. He said as follows: "The fourth issue was as to whether the appellant had sustained a permanent partial disability and it such a disability had been sustained, what its extent was On that point the learned Commissioner referred to the evidence of the appellant's own medical witness, Dr. Neogi. and said that since he had assessed the loss of the appellant's earning capacity at 15 per cent. the appellant would have been entitled to compensation on that basis, if his claim were not time-barred. It seems to have become a habit in the Court of the Commissioner of the Workmen's Compensation to take medical evidence as to the extent of the loss of earning capacity or, if I may express it otherwise, the percentage of the disability. I am entirely unable to understand how any such practice could have been countenanced and allowed to grow and how it could ever he thought that a medical witness would be competent to speak to the extent of the loss of earning capacity which had been occasioned by the effect of the physical injury. A medical witness can properly speak to the nature of the injuries suffered by a workman and the physiological or organic effect of such injury on the bodily system. As to such matters he is undoubtedly a competent witness. The Workmen's Compensation Act, however, is not concerned with physical injury as such nor with the mere effect of such injury on the physical system of the workman, but it is concerned only with the effect of such injury or of the diminution of physical powers caused thereby on the earning capacity of the affected workman. To what extent the earning capacity has been affected, it can never be for a medical witness to say. Medical evidence is opinion evidence and it is only with regard to the physical aspect of the injuries that the opinion of a medical witness is relevant and admissible as the opinion of an expert. But loss of earning capacity is not a matter for medical opinion and is not a matter to which a medical witness can possibly speak. A doctor can say from his special knowledge what injuries the physical system of the workman has suffered by reason of the accident and what effect, temporary or permanent, those injuries have left on the system or to what extent the normal physical powers of a man of the age and physique of the affected workman could reasonably be said to have been reduced. He can go that far but at that point he must stop. After the medical evidence as to the nature of and measure of the physical infirmity has been given, the substance of that evidence is to be taken over and applied in the assessment of the loss of earning capacity as one of the factors and perhaps the principal factor. But loss of earning capacity or the extent of it is a question of fact. I has got to be determined by taking into account the diminution or destruction of physical capacity, as disclosed by the medical evidence and then it is to be seen to what extent such diminution or destruction could reasonably be taken to have disabled the affected workman from performing the duties which a workman of his class ordinarily performed and from earning the normal remuneration paid for such duties. It may very well happen that in spite of the weakenine or even loss of a limb, the capacity of the affected workman to do the kind of work he was accustomed to do has not in the slightest degree been affected, nor has any difficulty arisen in the way of his getting employment of the usual kind by reason of the injury. In such a case, in spite of the physical injury and the effect of it, there will be no loss of the earning capacity. On the other hand it may happen that the diminution of physical powers or the destruction of a limb makes it impossible for the effected workman to do the kind of work he used to do formerly with equal efficiency as result of which, although he finds it possible to obtain remunerated employment, he is not offered remuneration at the old rate. In such a case, there will be a reduction of the earning capacity but not total loss. .... The utmost a medical witness can give by way of a percentage is to give the percentage of the loss of the normal physical capacity or power. The loss of earning capacity is not necessarily co-extensive with the loss of physical capacity and certainly the former does not prove the latter. The learned Commissioner, therefore was altogether wrong in taking the evidence of the medical witness not only as relevant but as decisive on the question of the loss of earning capacity.";