Ray, J. - (1.) This appeal is from the judgment and the order of the Additional Commissioner for Workmen's Compensation dated 24 September, 1966 in Claim Case No. 2545 of 1964. The company is the appellant and the workman is the respondent. The workman received personal injury by accident arising out of and in the course of his employment on 27th April, 1964. The workman alleged that he sustained injuries to the left leg and the hip. The workman claimed compensation. The Company admitted that there was an accident and further admitted that there was injury to the hip but denied that there was injury to the leg.
(2.) The Additional Commissioner for Workmen's Compensation framed two issues. One of the issues was whether the applicant sustained any permanent partial disability on account of the accident in question. The Commr. came to the conclusion that there was an accident and that the accident arose out of and in course of the employment. The further conclusion was that there was injury to the leg as well as the hip and there was permanent partial disablement. The Commissioner came to the conclusion that the applicant lost his earning capacity and assessed the same as 40 per cent loss of earning capacity.
(3.) Counsel for the appellant contended first that the evidence of the workman was that after the accident he was getting a sum of Rs. 112 per month and therefore, there was no loss of earning and his earning capacity was not reduced. The second contention was that there was no evidence to support the case of loss of earning capacity. Reliance was placed by Counsel for appellant on the Bench decisions in Agent, East Indian Railways v. Maurice Cecil Ryan, AIR 1937 Cal 526, Sukhai v. Hukum Chand Jute Mills Ltd.; Kali Das Ghosal v. S.K. Mondal, Commissioners for the Port of Calcutta v. Prayag Ram. These Bench decisions were relied on by Counsel for the appellant to contend that physical incapacity would not be the same as loss of earning capacity.;