Mr.Topkar, the learned counsel appearing for the appellant, vehemently submits that this assessment of loss of earning capacity at 100% is completely erroneous and unsustainable, since there can be no base for such an inference, particularly since the provision, Section 4(1)(c)(i) of the Act provides that the compensation would be such percentage, which would have been payable in case of permanent total disablement as is specifed therein, as being the percentage of the loss of earning capacity caused by that injury. He would submit that having held that the disablement was 34%, the learned Commissioner ought to have computed the loss of earning capacity to the extent of 34%, instead he has calculated it as 100%, and has arrived at a fgure of Rs.3,20,355/-, which is apparently erroneous. According to him, calculating the loss of earning capacity as 34%, the amount which ought to have been derived by the learned Commissioner is Rs.1,08,920/- and accordingly the penalty and the interest ought to have been levied. It is also argued that the respondent had not produced any medical certifcate, recording the disability or the percentage of loss of earning capacity and, therefore, by calculating the disability as set out in Part II of Schedule I, which enlist the injuries deemed to be result in ‘permanent partial disablement’, by working out the percentage of loss of earning capacity given under the said Schedule, the percentage is rightly calculated as 34%. The submission of Mr.Topkar is, in any case, the injury which is sustained by the respondent employee do not fall in Part I of
