John Mathew, J.

1. These are appeals filed under Section 30 of the. Workmens Compensation Act, 1923, for short the Act, against orders of the Commissioner for Workmens Compensation (Deputy Labour Commissioner), Kannur, in different cases.

When we noticed that a large number of appeals were being filed against the orders of this Commissioner, we directed the office to post them together. On a perusal of the records we prima facie found that in most of these appeals learned Commissioner has. erred infixing and awarding compensation. Accordingly we passed the following order on M. F. A. No. 649 of 1993 on 13-7-1993 :

Notice. Give notice to AG. also. Issue notice to Sheri G. Sasidharan Nair, Commissioner for Workmens Compensation (Deputy Labour Commissioner) Kannur, informing him that he may appear, if he thinks it necessary, at the final hearing of this case and the following similar cases, since prima facie we are of the view that in these dues some strictures against the officer are likely to be made:

1) M. F. A. 607/93 -- W. C. C. 124/91

xxxx

xxxx.

On receipt of this order the learned Commissioner entered appearance through Advocate Mr. M. Ramachandran, who ably represented his case. In the nature of the contentions raised by Learned Counsel appearing for the parties the following general points arise for, consideration :

i) Whether in, the case of an injury not specified in Schedule I to the Act can the Commissioner fix the percentage of loss of earning capacity without an assessment by a qualified medical practitioner

ii) Is it proper on the part of the Commissioner to disburse the compensation amount deposited before the expiry of the appeal period

Point No. (i)

2. Prior to. 1984 Amendment Section 4 of the Act was as follows:

4. Amount of compensation :-(l) 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 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,.

(Explanation and remaining Section are omitted).

3. Subsequent to the amendment by Act 22 of 1984 the present provision is as follows:

4. Amount of compensation -- (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 Schedule 1, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury:

XXX

From a reading of these two provisions it is clear that after the amendment it is essential that the loss of earning capacity is to be assessed by the qualified medical, practitioner.

4. How to estimate the loss of earning capacity was considered by various courts. Loss of earning capacity is different from loss of physical, capacity. Earning capacity is capacity to earn money. (See Agent: East Indian Railway v. Maurice Cecil Ryan, AIR. 1937 Gat. 526, and Commissioners for Port of Calcutta v. Paryag Ram, : AIR. 1967 Cal. 7) [LQ/CalHC/1966/172] . In some cases any physical defect which may occur as a result of the accident may not reduce the workers earning capacity or capacity to do work. Incapacity for work is not to be ascertained merely by examining whether the workman is suffering from physical injury. It is to be ascertained, by reference to his incapacity to earn wages. If his wage earning capacity is diminished he can be said to be suffering from partial incapacity for work. However, if his wage earning capacity has not been affected, notwithstanding the fact that he may be having some physical injury, he is not entitled;, to compensation. Therefore : the loss of earning capacity is a question which has to be proved by evidence of physical injury resulting in loss of earning Capacity. Only in the case of a scheduled injury the loss of earning capacity is presumed. Where the; injury is not included In the schedule, the reduction in. earning capacity will have to be proved as any other. question of fact. It must be proved by evidence which will establish that the workman was unable to earn as much as he did before, as result of the injury.

5. this Court in U.I Insurance Co. Ltd. v. Sethu Madhavan, 1992 (2)K.L.T 702 held as follow:

10. A certificate prescribing sic the nature of the injury and its impact on the organ of the human body involved technical and special knowledge with regard to the same and therefore, expert opinion as regards that aspect becomes necessary. The nature of the injury, the part where it is inflicted and the effect it produces require expertise and therefore opinion of expert in that regard becomes relevant: and necessary. The evaluation of the nature of injury is objective. Then its effect on the functioning of organ is also a matter for the expert........................................................................,...........................................As the percentage of loss of earning power depends upon the disablement and other factors, the same is a question" of fact depending upon the nature of work, the age of the workman etc.

6. We may observe that the most of the decisions referred to by Learned Counsel for the respondents and Learned Counsel who represented the Commissioner were dealing with Section 4 (c) (ii) of the Act before its amendment in 1984; As observed above before the amendment the words as assessed by the qualified medical practitioner were not present. Those words were added only by Act 22 of 1984. So much so the decisions in Sukhal v. Hukumchand Jute Mills Ltd., : AIR. 1957 Cal. 601, [LQ/CalHC/1957/22] Commissioners for Port of Calcutta v, Prayag Ram, : AIR. 1967 Cal..7, Kocha Vela v. Purakkatto Joseph : 1984 AC J. 630 and Pratap Naraio Singh v. Shrinivas, : AIR. 1976 SC. 222 [LQ/SC/1975/494] may not directly apply. to a case arising under the amended provision. In : AIR. 1976 S. C. 222 the Supreme Court held that amputation of left hand above elbow will amount to total disablement became the carpenter did not work with one hand. The argument in that case centred round the meaning of the Words of total disablement. The importance of the medical certificate or the assessment of loss of earning capacity by a qualified medical practitioner was not in issue, in that case. In Kochu Velu v. Purakkattu Joseph, 1984 ACT. 630, this Court only considered the meaning of permanent disability. The necessity for assessment of loss of earning capacity by a qualified medical practitioner was not an issue in that case. In U.I. Insurance Co. Ltd. v. Sethu Madhavan, 1992 (2) KLT. 702, this Court held that in deciding the loss of earning capacity the basic document was the certificate by the qualified medical practitioner (See para. 14). Further this Court cautioned that it was for the Commissioner to adjudicate the percentage of loss of earning capacity after taking into consideration the medical certificate as well as other evidence.

7. Whether the Medical Officer should be examined The Tiavancore-Cochin High Court in M.S.N Co. Ltd. v Mohd. Kunju, AIR. 1956 T. C. 55, held that normally a medical certificate shall not be used without examining the medical officer who issued the certificate, unless the parties agreed to be bound by the certificate. The Court also quoted with approval the following observation of Harries C. J. in Panchanan Ghosh v. Bhaggu Bari, : AIR. 1950 Cal. 261 [LQ/CalHC/1950/11] :

The Commissioner also noted that he had seen the workman. The Commissioner is not medical man and in this class of litigation malingering and false claims are notorious and I am sure that the Commissioner would find it very difficult to say whether an alleged injury to a joint was real or not

The Allahabad High Court in M/s. Burfawal Sugar Mills Ltd. v. Ramjan 1982 Lab. I. C. 84, noticed that Section 11 (1) of the Act does not prescribe that if a medical certificate has been produced by the workman and the employer does not avail of the right conferred under sub-section (1) of Section 11, the medical certificate submitted by the employee will be deemed to be correct. The employer is entitled to challenge the medical certificate produced by the workman. The Calcutta High Court in Bengal Coal Co. Ltd. Girimint v. Sew Pujan Harijan, 1983 Lab. I. C. 1285, held that in order to make the medical certificate legally admissible, the Doctors giving the same must come and give evidence in support of the certificates, The Court also held as follows:

16.........But in the case of Panchanan Ghose v. Bhaggu Bari. : AIR 1950 Cal.261 it is observed that it is not proper for the Commissioner to base his findings upon his own observation of the injured person. Further, in the absence of medical evidence the Commissioner is not in a position to decide the percentage of the physical disability of the injured workman.

The Act nowhere excludes the operation of the Evidence Act in claims to be decided under the Act. Under Section 25 of the Act the Commissioner is to make a brief memorandum of the substance of the evidence of every witness as the examination of the witness proceed. This only shows that there is some difference between the normal procedure of examination of witness contemplated by the Evidence Act. But it is highly risky to leave to the individual Commissioners to adopt procedures to their liking. It is much safer to adopt the provisions of the Evidence Act. Even if the Evidence Act as such is not made applicable the general principles of Ac Act would apply to the proceedings before the Commissioner. Medical certificate is not a document which can be admitted in evidence without proof under any of the provisions of the Evidence Act; or under any of the provisions of the Workmens Compensation Act. therefore the certificate will have to be proved in one of the modes allowed by the Evidence Act.

8. Whether the Commissioner can personally examine the disabled workman to decide the percentage of loss of earning capacity is a question which has considerable importance in workmens compensation claims. The Commissioner is entitled to examine the workman in a particular case or a particular injury if he feels it is necessary for the purpose of settling the amount as he is enjoined to do under Section 19 of the Act. However this power should be exercised with circumspection The Commissioner should always keep in mind that after the 1984 amendment the power to assess the loss of earning capacity in the case of non-scheduled injury is vested in the qualified medical practitioner. We have to accept the position that in spite of numerous decisions of different courts to the effect that in case of non-scheduled injuries the Commissioner is the authority to adjudicate and determine the percentage of loss of earning capacity the legislature thought it necessary to amend Section 4 (c) (ft) of the Act in order to vest in the qualified medical practitioner the power to assess the loss of earning capacity in the case of non-scheduled injuries. The motives of the legislature in making the 1984 amendment is beyond the scrutiny of courts. Nor can the courts examine whether the legislature had applied its mind to the provisions of a statute before passing it. The propriety, expediency and necessity of a legislative act are not far the determination of the courts. (See T. Venkata Reddy. v. State of A.P., : A.I.R. 1985 S.C 724) No doubt while assessing the percentage of loss of earning the authority should have adequate knowledge of various other factors, like the nature of the work, chances of re-employment, number of years of service of workman etc. The assessment made by the qualified medical practitioner can only relate to the physical disability of the workman. Although that is an important factor in assessing a loss of earning capacity of a workman there may not be any doubt that this is not the only factor. Therefore we cannot hold that after the 1984 amendment the Commissioner has no power at all to determine the loss of earning capacity of an injured workman. However proved medical evidence has to be insisted upon by the Commissioner which is the primary basis on which the loss can be assessed.

9. Therefore we hold that primary the loss of earning capacity is to be assessed by the qualified medical practitioner Normally he should be examined to prove the certificates. However in case there are special reasons the Commissioner may accept other evidence to prove the medical certificate Normally the Commissioner shall not decide the loss of earning capacity without a medical certificate of a qualified medical practitioner assessing the loss of earning capacity except in cases where there are special reasons to dispense with medical certificates. However it goes without saying that the probative value of the medical certificate has to be adjudged by the Commissioner taking into consideration the other evidence in the proceedings. We respectfully adopt, the reasoning of this Court in U.I. Insurance Co. Ltd. v. Sethu Madhavan, 1992(2) KLT. 702.

10. Point No. (ii): Section 30 of the Act confers on an aggrieved party the right to challenge the order of the Workmens Compensation Commissioner before the High Court. The period of limitation for such appeal is 60, days. Section 5 of the Limitation Act is made applicable to the appeals under Section 30 of the Act. Under the 3rd proviso Section 30 of the Act no appeal by an employer shall lie unless the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against. Thus it is mandatory that the employer should deposit the compensation amount before the appeal can be entertained. In case within the appeal period of 60 days, the Commissioner disburses the compensation to the workman the appeal itself may become infructuous since in most of the cases it may not be possible to get back the amount withdrawn by the workman. There is no provision in the Act empowering recovery of the amount paid to the workman. Section 31 of the Act only provides for recovery of any amount payable by the employer. Therefore the disbursal of the compensation amount should be done only after the expiry of the period of 60 days. Under Section 29 (2) of the Limitation Act 1963 the appellant is entitled to the exclusion of time for obtaining a certified copy of the award. In these cases the Commissioner forwarded the copies of the award to the parties. Thus the affected parties will get sixty days from the date of receipt of such copy, to file appeal. In special cases the Commissioner may order disbursal of the whole or part of the compensation amount by order on a petition to be filed by the workman after giving notice to the employer and hearing the employers objections. Even after the period of 60 days if the employer has informed the Commissioner about the filing of an appeal or the intention to file an appeal the compensation amount may be disbursed only after hearing the employer also.

11. Now we will deal with individual appeals :

M. F. A. No. 366 of 1993

This is an appeal by the employer against the award in W.C.C. No. 87 of 1992 before the Workmens Compensation Commissioner, Kannur. The respondent-worker claimed compensation of Rs. 50,000/- for personal injuries sustained on. 2-3-1990 in the course of her employment. The appellant filed a counter statement contending that the worker was absent from work only for 43 days and her entire medical expenses were met by the appellant. Compensation for the period of absence was also paid to her and she accepted the same in full and final settlement of All her claims. -She also executed an agreement on 27-4-1990 under Rule 49 of the Rules. It was also contended that the worker is even now working as usual under the employer. She was a temporary worker at the time of accident. She was made permanent in October, 1990 after a thorough check up and she is still a permanent worker of the appellant. The monthly salary stated in the petition was also denied by the appellant. The extract of pay roll and the records of the hospital together with memorandum of agreement and photocopy of the check rolls were produced before the Commissioner. A Section officer of the appellant was also examine. No medical certificate was produced in this case.

12. The Learned Commissioner without referring to these records observed that there was no record to prove that the worker is still continuing her employment. On that reasoning the Commissioner held that she has lost 100% of her earning capacity observing that this could very well be assessed from her personal appearance and with reference to Ext. A2 document, We have perused Ext. A2. It is a prescription written by Dr, Vinod Govind. We were; unable to find any evidence in Ext. A2 supporting the finding that the worker lost 100% of her earning capacity. Apparently the learned Commissioner has not bestowed proper attention on Ext. A2 before observing that Ext. A2: will support the view that the worker lost 100% of her earning capacity. The result of such a finding was that the learned Commissioner awarded Rs. 1,00,723/35 against the claim for Rs. 50,000/-. In view of our findings on the general issues and/ also [in view of the non - advertence to the evidence in this case we set aside the order under challenge and remand the case to the Commissioner for fresh consideration and disposal in accordance with law.

13. M. F. A. No. 380 of 1993 : This is an appeal filed by the, 2nd. opposite party, viz, the insurer of the employer. The 1st respondent is the applicant in W. C. C. No. 18 of 1992.-, He claimed compensation of Rs. 50,000/- for personal injuries sustained in a road accident on 6-1-1990 while- he was employed as a driver in a bus owned by the second respondent herein. The alleged disability and the quantum of compensation claimed were disputed by the appellant. No disability, certificate was produced by the applicant. As per Exts. A 5 and A6 wound certificates he had fracture of left ankle and abrasion 3 cm. x 1 cm. on the lateral (aspect of right ankle. The learned Commissioner, assessed the loss of earning capacity as 50% from his personal appearance and the documents produced. The order under challenge is set aside and the claim is remanded to the Tribunal for fresh consideration and disposal in accordance with law.

14. M.F.A. No. 580 of 1993: The 2nd opposite party in W.C.C. No. 161 of 1992 is the appellant. The 1st respondent in this appeal filed the said claim for compensation for injuries alleged to have been sustained by him in an accident which occurred on 27-54992 in the course of his employment with the 2nd respondent. There is a total absence of legal evidence regarding the percentage of loss of earning capacity suffered by the workman. The learned Commissioner held without any evidence that the workman suffered 100% loss of earning capacity. In paragraph 3 of the judgment it was observed that the opposite parties did not raise any dispute on the above aspects. This observation is absolutely incorrect since the respondents had disputed it as well as the salary of the workman. The order also stated that from the medical records produced as exhibits and the personal appearance of the workman it was seen that he was totally disabled to do any work in future and that he can walk only with the help of crutches. In making this observation the learned Commissioner did not refer to Ext. A3 discharge summary where it was observed as follows:

X-ray Rt. femur taken fracture united well.

Progress : Hospital stay uneventful, knee and ankle movements are better. Patient is walking without crutches.

From this it is clear that the workman feigned illness before the Commissioner and the Commissioner accepted this contention even without referring to the records. The order under challenge is set aside. The claim is remanded to the Commissioner for fresh consideration and disposal in accordance with law.

15. M. F. A. No. 607 of 1993 : The 2nd opposite party in W. C. C. No. 124 of 1991 is the appellant- That claim was filed by the 1st respondent in the appeal claiming that while he was going on a motor cycle to purchase some articles for his employer a tempo van collided with the motor cycle and the petitioners right leg was injured. He claimed compensation of a lump sum payment of Rs. 50,000/-, No Medical certificate was produced in this case. The learned Commissioner passed an award for Rs. 36,550/- holding that he lost 50% of his earning capacity.

16. Ext. AI medical certificate shows that the workman had sustained crush injury on the right foot and lacerated injury on the right 3rd and 4th toes. He was not subjected to any medical examination to assess any disability: The learned Commissioner in the judgment under challenge observed that the claim of the workman was supported by Exts. A1 to A3 which are medical certificate and treatment records, Ext. Al shows that file workman had crush injury. Ext A2 is only prescriptions and Ext A3 treatment card of the hospital. Thus Exts. Al to A3 will not be of any assistance in estimating the, percentage of disability. When the workman was examined before the Commissioner he had no case that his. two loss were amputated. He is still working in the estate, therefore there was no justification for the Commissioner in fixing, the loss of earning capacity on the assumption that his two toes were amputated. The workman claimed his monthly income as its. 1,000/-. The employer had denied the income claimed by him. Even though no records were produced before the Commissioner, the Commissioner wrongly fixed the income as Rs. 1,000/- per month.

17. Under the circumstances the judgment under appeal is set aside and the claim is remanded to the Commissioner for fresh consideration and disposal in accordance with law and in the light of the observations made in this judgment.

18. "M." F. A. No. 608 of 1993: The 2nd opposite party in W.C.C. No. 200 of 1992 is the appellant. The said claim was filed by the 1st respondent herein for compensation on account, of personal injuries alleged to have been sustained by him on 8-1-1992 in the course of his employment with the 2nd respondent. It was alleged that he met with an accident on 8-1-1992 while driving an autorickshaw belonging to the 2nd respondent. The claim was for an amount of Rs. 25,000/-. However, the award was for an amount of Rs. 47,390/- No medical certificate showing his loss of earning power was produced. Ext. A4 certificate showed that he sustained a deep lacerated wound on the left heel and medial aspect of leg. He had about 8 cm. x 6 cm. x 2 cm. loss of skin. The Commissioner assessed his loss of earning capacity as 20% from his personal appearance and based on Ext. A4 medical certificate. As observed Ext. A4 medical certificate did not indicate the percentage of loss of earning capacity. As per our direction the claimant was examined by a Medical Board. The certificate produced by the Medical Board is marked as Ext. XL As per the certificate his permanent disability is only 5%. In this appeal there is a disquieting feature. The Commissioner passed the order on 23-3-1993. Copy of $he judgment was received by the appellant - Company on 26-5-1993, The compensation amount was deposited on 23-6-1993. The appellant had time-till 26-7-1993 to file appeal. this Court granted an order of interim stay on 7-7-1993 However, Learned Counsel for the appellant submitted that the compensation amount was disbursed to the party before the appeal time was over. The records relating to the disbursal of the amount are not sent along with the case records and we are unable to find out the exact date Of disbursal. There was no justification for disbursal of the compensation amount before the expiry of the appeal time. The claimant is directed to re-deposit the amount before the Commissioner within one month The. order under challenge is set aside. The claim is remanded to. the Commissioner for fresh disposal and consideration in accordance with law

19. M.F.A. No. 616 of 1992 : The 2nd opposite party in W.C.C. No. 147 of 1992 is the appellant. That claim was filed by the 1st respondent herein for compensation on account of injuries alleged to have been, sustained by him in the course of his employment. with the 2nd respondent herein. According to him, while he was driving an autorikshaw it was hit by a K.S.R.T.C. bus. He claimed an amount of Rs. 1 lakh as compensation alleging that he was aged 26 years at the time of accident. The learned Commissioner assessed his loss of earning capacity from his personal appearance and, an amount of Rs. 1,07,640/-, was awarded as compensation No medical certificate was produced. in Ext. Al certificate,: percentage of disability, was not mentioned. : In Ext, A2 accident register-cum wound certificate there is only one injury namely fracture of right knee In Ext A2 and A4 his age was shown as 30 years. Absolutely no document was produced to show that his age was 26. A.W.I admitted that his patella was not removed. Even according to A.W.1 the disability is not permanent. It has to be examined whether compensation is payable only under Section 4 (I) (d) of the Act. The order under challenge is set aside. The claim is remanded to the Tribunal for fresh consideration and disposal in accordance with law.

20. M.F A. 626 of 1993 : The 2nd opposite party in W. C, C. No. 51 of 1992 is the appellant. That-was an application filed by the petitioner for compensation on account of the personal injuries alleged to have been sustained by him in the course of his employment under the 2nd respondent.

21. As per Ext. Al wound certificate he had, the following injuries;

i) Swelling and tenderness in Lt. scapula region:

ii) Lt. foot swelling more in the region. of metatarsal.

He was admitted in the hospital only on the next day of the accident, viz, 7-2-1993.; He was discharged on 8-2-1993. His discharge certificate mentions his condition as satisfactory. He also produced Ext. A4 certificate from an Ayurvedic Doctor. He was-under his treatment-Panchakarma. It was, on these evidence, that the Commissioner assessed the loss of earning capacity as 50%., There is not even an averment in the petition that he is permanently disabled. There is also no finding by the Tribunal to that; effect. the evidence to support compensation under Section 4(1) (c) of the Act is totally absent in this case.

22. The Commissioner passed the order on 10-5-1993. It was despatched to the appellant on 22-5-1993. the compensation amount was deposited on 23-6-1993 On 26-6-1993 itself the appellant filed a petition to withhold payment since they wanted to file this appeal: Even so the amount was disbursed on 12-7-1993 within the appeal time without notice to the appellant. It may also be observed that even though notice of this appeal was served on the Workman by affixture in the address given by him in the claim petition, he has not entered appearance before this Court. The first respondent workman is directed to re-deposit the amount. The order under challenge is set aside. The claim is remanded with law.

23. M.F.A. No. 628 of 1993 : This is an appeal filed by the 2nd opposite party in W.C.C No. 16 of 1992. That claim was filed by the 1st respondent In this appeal alleging that he Was injured in the course of the employment with the 2nd respondent. From Ext. Al it is Seen that his injuries were multiple abrasions right temple and parietal region, both legs and knees and right shoulder. Ext A2 is only a bill for conducting tests. Ext. A3 is the Photostat copy of the driving license. Ext. A4 is the copy of the temperature chart and also the inpatient record of the hospital. Ext. A5 is a letter dated 20-11-1991 informing the Sub Inspector of Police, caplets their workman was admitted in the hospital with injuries said to have been caused due. to a traffic accident. Ext. A6 is a certificate dated 14-1-1993 from Dr. Vinod Govind. The Doctor assessed his disability at 2%. Apparently he was not treated by the said Doctor.

24. Learned Commissioner in paragraph 4 of the judgment stated as follows:

..Exhibits A1, A2, A4, A6, and A7 are medical records as listed in the appendix, which prove the accident and injury. As per the sworn statement of the applicant, he was aged 20 years and getting Rs. 1,200/- p.m. at the time Of accident. These points are not contradicted by the opposite parties, although opposite party IInd had disputed in his statement. Then the only question to be decided is the percentage of loss of earning capacity.

25. In the counter statement filed on behalf of the appellant the accident itself was denied. It was contended that the petitioner was not a workman coming within the purview of the Act. The contention that he was permanently disabled due to the injuries was also denied. It Was also contended "that :Section 3(1) (a) of the Act is attracted since there is no injury resulting in disablement for 3 days The injuries were only abrasions They are not scheduled injuries and therefore the contention of the employer will not be liable was not properly considered by the Commissioner. The income, age and occupation of the petitioner were also disputed, Therefore the observation of the learned Commissioner that these points were not controverted by the opposite parties was not correct and made without referring to the records in this case. Even though the disability certificate produced by the workman himself showed that disability was 2% there was no justification for the Commissioner to enhance the percentage of disability to 50%. The claim was only for Rs. 50,000/-. However the learned Commissioner awarded the compensation of Rs. 56,000/- adopting this wrong procedure and ignoring relevant evidence. The judgment under challenge is set aside. The claim is remanded to the Tribunal for fresh consideration and disposal in accordance with law.

26. M.F.A. No. 629 of 1993 The 2nd opposite party in W.C-C. No. 30 of 1993 is the appellant. That claim was filed by the 1st respondent herein for compensation on account of alleged personal injuries sustained by him on 30-11-1992 in an accident in the course of the employment with the 2nd respondent herein. As per Ext. Al wound certificate he had two injuries :

i) Extensive lacerated wounds on both hands and legs;

ii) small multiple lacerated wound on face, neck and head.

In Ext. Al it was mentioned that he was admitted on 30-11-1992 and-discharged on 21-12-1992. There was a note in Ext. Al that the prolonged hospitalization was for recurrent hospital infection, not related to this injury. Ext. Al also shows that he was discharged relieved. Ext. A2 only shows that the workman was under treatment for headache and tinnitus right ear. There was no medical certificate showing his disability. In this judgment also the learned Commissioner observed, that the points raised by the petitioner were uncontradicted. In the face of the contentions raised, by the petitioner such observations ought not to have been made. The loss: of earning capacity was assessed at 70% based on Exts. Al and A2 and from the personal appearance of the applicant. Thus the Commissioner awarded Rs. 71,347/50. There was no justification for passing such an award. It is accordingly set aside. The claim is remanded to the Commissioner for fresh consideration and disposal in accordance., with law.

27. M. F. A. No. 636 of 1993: This appeal is filed by the 2nd opposite party in W. C. C. No. 124 of 1992. That claim was filed by the 1st respondent in this appeal for compensation for injuries said to have been suffered by him, in the course of the employment with the 2nd respondent. According to him, he sustained injury to his right leg on 26-12-1991. As per the wound certificate Ext-Al the injuries sustained by him were the following :

i) Contusion over right thigh 2 cm. X 1 cm.;

ii) lacerated wound over right ankle 3 cm. X 1cm.

Ext. A2 certificate dated 17-1-1992 shows that he was discharged with POP dressing on that day and advised to come for dressing once in three days till the ulcer heals. No certificate showing his disability was produced by the workman. Even so the learned Commissioner estimated his loss of income at 75% from his personal appearance and awarded Rs. 81,926/25, even though his claim was only for Rs. 50,060/-. The award was not justified on the evidence produced before the Commissioner. It is accordingly set aside. The claim is remanded to the Commissioner for fresh. consideration and disposal in accordance with law.

28. M..F. A. No. 637 of 1993: This appeal is filed by the 2nd opposite party in W.C.C No. 102 of 1992. That claim Was filed by the 1st respondent herein for compensation for injuries alleged to have been caused to him in the course of his employment with the 2nd respondent. The 1st respondent-petitioner who was driving an autorikshaw on 1-12-1991 was injured when the vehicle skidded and overturned. As a result of the accident the petitioner suffered abrasions all of over he body. As seen from the wound certificate which was. marked as Ext.A2 the only serious Injury No. 9 was the following:

compound injury with multiple contused lacerations all over the ankle.

The petitioner produced Ext. A3 medical certificate dated 26-3-1993 before the Commissioner. Ext. A3 certificate mentioned that the petitioner has tenderness over the scar on the foot and pain while moving the foot against resistance which renders him in-capable of carrying-out his profession of driving. No percentage of disability as such was mentioned in Ext. A3. However Learned Counsel for the appellant pointed out that in the evidence of the petitioner as P. W. 1 he has not spoken about any fracture. He only speaks about injuries. - He mentioned that his right leg is shortened. Ext. A 2 wound certificate was prepared by the Medical Officer, Government Hospital, Kalpetta on 1-12-1991. In Ext. A 2 it is noted that the patient Was referred to Mananthavadi Hospital for further management. Ext. A 3 certificate was issued on 26-3-1993 by the Medical Officer, Government Hospital. Kalpetta. It is not clear whether he had treated the petitioner in 1991.

29. This was the only evidence available before the learned Commissioner. Learned Commissioner fixed the disability at 100% based only-on Exts A2 and A3 and awarded Rs. l,09,235/-as compensation.

30. In this case there is another disquieting circumstance. The learned Commissioner passed the judgment on 19-4-1993. Copy of this was despatched to the parties on 22-54993. The 2nd opposite party received it on 28-5-1993. The compensation amount was deposited on 21-6-1993, This appeal was filed on 12-7-1993. this Court permitted the Commissioner to disburse an amount of Rs. 30,00G/-to the claimant and ordered a stay of - disbursal of the balance amount, by order dated 13-7-1993. It. may be mentioned that the time for filing of the appeal expired only on 27-9-1993 (60 days after the receipt of the order) under Section 30 of the Act. However before that the learned Commissioner disbursed the entire amount to the claimant. From the records sent to this Court the exact date of disbursal of the compensation amount cannot be found out, since the petition for disbursal of the compensation amount is not sent along with the records. The award was not justified on the evidence produced before the Commissioner. It is accordingly set aside. The 1st respondent-claimant is directed to re-deposit the compensation amount received by him before the Commissioner within one month. The claim is remanded to the Commissioner for fresh consideration and disposal in accordance with law.

31. M.F.A. No. 643 of 1993 : The 2nd opposite party in W.C.C. No. 169 of 1992 is the appellant. That claim was filed by the 1st respondent herein claiming compensation for injuries said to have been sustained by him in a road accident on 26-4-1992 while he was employed as a driver in the jeep owned by the 2nd respondent herein. No disability certificate was produced by the claimant to prove his percentage of loss of earning capacity, if any. No wound certificate was also produced However, according to the claimant, he sustained fracture of clavicle on the right side and contusion on the right shoulder, right buttock and right chest and multiple abrasion.. Ext. Al produced by the petitioner was only a treatment certificate and Ext. A2 certificate only showed that he had undergone some Ayurvedic treatment. There was no evidence to prove that he was permanently disabled. Even so the Commissioner held as follows :

Regarding the loss of earning capacity, it is assessed to 75% based on the medical documents and the personal appearance of the applicant before me.

On this basis the Tribunal awarded compensation of Rs. 80,730/-.

32. In view of the general findings in this judgment the, judgment of the Commissioner is set aside. The case is remanded to the Tribunal for fresh consideration and disposal in accordance with law.

33. M. F. A. No. 644 of 1993: The 2nd opposite party in W.C.C. No. 171 of 1992 is the appellant. That claim was filed by the 1st respondent herein claiming compensation for personal injuries said to have been sustained by him in a road accident on 29-3-1992 while he was employed as the driver of the jeep owned by the 2nd respondent. According to Ext. Al he sustained a fracture of clavicle right. Plaster was applied on 7-4-1992 and he was treated as an out patient. Plaster was removed on 25-4-1992. However no disability certificate was produced. Even so the learned Commissioner assessed his loss of earning capacity at 50% based on Exts. Al and A2, namely, the medical certificate and X-ray as well as from the personal appearance of the claimant and awarded an amount of Rs. 54,618/-as compensation. Learned Counsel for the appellant submitted that the appellant had filed a petition to refer the applicant to the medical board to assess his loss of earning capacity, if any. However, that petition was dismissed by the learned Commissioner. In view of the general findings this judgment, the judgment of the learned Commissioner is set aside and the claim is remanded. to the Commissioner for fresh consideration and disposal in accordance with law.

34. M. F. A. No. 649 of 1993 : The 2nd opposite party in;W. C. C. No. 197 of 1992 is the appellant. That claim was filed by the 1st respondent herein claiming compensation for injuries said to have been sustained by him in a road accident on 9-11-1990 while he was employed as a driver of the bus owned by the 2nd respondent. As per Ext. A 2 wound certificate he had abrasions on the knees and left thigh. There was a lacerated wound on the left elbow cm. x cm. skin deep. There was tenderness over the sacroibac joint and right parietal region of the scalp. In the X-ray of the skull and pelvis nothing abnormal was detected. Ext. A 2 specifically mentioned that all these injuries were simple in nature. Ext.A 1 is an out patient ticket. No disability certificate was produced. There is no certificate to prove his disability or loss of earning capacity, if any. Even so the learned Commissioner held as follows :

Since no specific disability or loss of earning capacity has been certified, I have assessed the loss of earning capacity to be 75% from the personal appearance of the applicant before me and based on Exts. Al and A2.

On this basis compensation of Rs. 66,934/- was awarded. It may be observed that we passed the order to issue notice to the learned Commissioner on this appeal. There is absolutely no evidence to hold that the petitioner suffered any permanent partial disability. The judgment of the learned Commissioner is set aside and the claim is remanded to the Commissioner for fresh consideration and disposal in accordance with law.

35. M. F. A. No. 692 of i993 : The 3rd opposite party in W. C. C. No. 165 of 1992 is the appellant. That claim was filed by the 1st respondent herein claiming compensation for injuries said to have been sustained in an accident involving tipper lorry No. KL-12/1495. According to the applicant he sustained injury while he fell down when he was giving signal. for reversing the vehicle. The accident took place on 24-6-1992. The injury sustained by him was a fracture on his leg. Even so in Ext. A5 it was mentioned that he cannot do any manual labour. No certificate as to whether the petitioner suffered any permanent physical disability was produced. The appellant filed a petition to direct the applicant to be examined by a Medical Board. That petition was dismissed. The Commissioner fixed the loss of earning capacity as 100%. and awarded an amount of Rs. 90,747/-as compensation. In view of the general findings in this judgment, the judgment of the learned Commissioner is set aside. The claim is remanded to the Commissioner for fresh consideration and disposal.

36. M.F.A. No. 750 of. 1993: This appeal is filed by the 2nd opposite party in W.C.C. No. 160 of 1992. That claim was filed by the 1st respondent herein claiming compensation for alleged injuries suffered by him in an accident on 3-12-1991 while he was driving a vehicle belonging to the 2nd respondent Ext. A2 medical certificate shows that the fracture of the fourth metatarsal bone right side has united with thickening and slight lateral displacement of lower fracture segment and that there is pain at the fracture site on inversion of right foot. The percentage of disability was shown as 4% in Ext. A2.

37. Even so the learned Commissioner fixed the disability at 75%. In view of this vast difference in the percentage of disability assessed by the Commissioner we directed the claimant to be examined by a Medical Board. Accordingly the Medical Board constituted by the DMO. Ernakulam, examined the petitioner on 16-8-1993. As per their medical ^certificate which is marked as Ext. XI there is no burn abnormalities and no assessable physical disability- The learned Commissioner fixed the percentage of disability at 75% without any supporting evidence and without noticing that the Doctor who issued Ext. A2 certificate fixed the disability as 4% after examining his physical condition. The judgment under challenge cannot be supported and therefore it is set aside. The claim is remanded to the Commissioner for fresh consideration and disposal.

38. On a review of these various cases we have to observe that the learned Commissioner has awarded exorbitant amounts as compensation, often more than the claim amount, without supporting evidence. We cannot accept the contention of the Learned Counsel appearing of him that these awards were passed on a misunderstanding of the reported decisions. In most of these cases the Commissioner has observed that the assessment was made on the basis of personal satisfaction of the Commissioner. M. F. A. No. 580 of 1993 is an example to show that the personal satisfaction of the Commissioner can be mistaken. In that case the Commissioner-observed that the petitioner came to the court with the help of crutches. But the discharge summary specifically mentioned that he was walking without crutches. So also in two of these cases when the petitioners were examined by Medical Board as per the order of this Court, we found that there was no justification for assessing the percentage of disability at the high figure estimated by the Commissioner. In M. F. A. No. 603 of 1993 the Medical Board assessed the disability as 5% where as the Commissioner fixed his disability at 50%. In M.F.A. No. 750 of 1993 the Medical Board assessed that there is no disability as against 75% disability fixed by the Commissioner. We also find that in some of these cases learned Commissioner disbursed the compensation amount before the expiry of the appeal period and that also in spite of the filing of petitions not to disburse the amount since the appellants are intending to file appeal. In some cases there was a request, to send the claimant for medical examination, the Commissioner refused to send him for medical examination. We bring all these aspects to the notice of the Government in order td take appropriate remedial actions so that these errors or omissions may not happen future. Since we are setting aside the awards passed by the Commissioner all the claimants who have withdrawn the compensation amount should re-deposit the amount with the Commissioner within one month from the date of this judgment. In case they are not depositing the amount the Commissioner should take steps to recover the amount from the claimants. Registrar will forward a copy of this judgment to the Chief Secretary, State of Kerala, for appropriate action.