JUDGMENT : S.C. Mohapatra, J. - Insurer is the appellant in this appeal u/s 30 of the Workmen's Compensation Act, 1923 (hereinafter referred to as 'the Act'). 2. A motor vehicle fitted with rig bearing registration No. ORK 2442 was on commission on October 13, 1989. At about 9 a.m. injured workman got up the ladder to fix a pipe to the rig. Before such fixation, driver of the vehicle started the rig as a result of which workman fell down first on another workman and thereafter on the stony surface of the ground. As a result of such fall, he sustained injuries. On account of such injuries, he made an application under the Act to the Commissioner for compensation. 3. Owner of the vehicle admitted employment, monthly wages and the injuries on account of accident in course of and arising out of employment. Only age of the workman was disputed. Insurer denied its liability. 4. Commissioner on appreciation of evidence has held that the claimant workman sustained injuries in course of and arising out of his employment, monthly wage of Rs. 900/- and age of the workman to be 22 years. These are all findings of fact and having been determined on appreciation of evidence, there is no scope to interfere with the same as they are reasonable. 5. In view of the copy of the policy filed before Commissioner there is no doubt that insurer shall be liable in case employer is the insured. I am not inclined to accept the contention of Mr. S.S. Rao that appellant is not liable because atrade name in the insured copy of the policy makes it clear that employer is the owner of the vehicle in the trade name of his business. Accordingly, insurer is liable to indemnify the owner of the vehicle who is the employer of the workman in respect of the amount of compensation to be determined. 6. Mr. S.S. Rao, learned counsel for the insurer submitted that the quantum of compensation determined is arbitrary and Commissioner has not kept the legal principle in mind for determination of the compensation. Mr. B.P. Ray, learned counsel for the workman, on the other hand, submitted that Commissioner ought to have awarded compensation at a higher amount in view of the nature and effect of the injuries. 7.
Mr. B.P. Ray, learned counsel for the workman, on the other hand, submitted that Commissioner ought to have awarded compensation at a higher amount in view of the nature and effect of the injuries. 7. Commissioner has found the disability of the workman at 45 per cent and determined the compensation. No doubt, percentage of disability is a factor to be taken into consideration. However, the loss of earning capacity is the basis for determination of compensation in the case of injuries which are not covered under Part II of' Schedule I of the Act as provided is Section 4(1)(c). It reads as follows : "4. (1) Amount of compensation.-- Subject to the provisions of this Act, the amount of compensation shall be as follows, namely: (a) & (b) xxx xxx xxx (c) where permanent partial disablement results from the injury. (i) in the case of an injury specified in Part II of Schedule I, such percentage of the Compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury, and (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 (as assessed by the qualified medical Practitioner) permanently caused by the injury; Explanation I,-- Where more injuries than one are caused by the same accident the amount of compensation payable under this head shall be aggregated but not so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries. Explanation II.-- In assessing the loss of earning capacity for the purposes of Sub-clause (ii), the qualified medical practitioner shall have due regard to the percentage of loss of earning capacity in relation to different injuries specified in Schedule I." A plain reading of this Section indicates that Sub-clause (i) has got no application to this case since nature of injury is not reflected in Part II. Therefore, injury would come under Sub-clause (ii) of Clause (c). This provision requires the loss of earning capacity to be assessed by a qualified medical practitioner.
Therefore, injury would come under Sub-clause (ii) of Clause (c). This provision requires the loss of earning capacity to be assessed by a qualified medical practitioner. Explanation II makes the position clear that while assessing earning capacity qualified medical practitioner shall have due regard to the percentage of loss of earning capacity in relation to different injuries specified in Schedule I. Neither the certificate granted by the doctor nor evidence recorded indicates that the doctor had due regard for the same. In absence of such direct evidence no doubt, the Commissioner can make a reasonable guess work from the materials on record. As I find, Commissioner has also not taken note of the loss of earning capacity. Percentage of disability may have some influence on the loss of earning capacity depending upon the nature of employment. Schedule I, Part II provides the percentage of loss of earning capacity. Qualified medical practitioner has to take note of the duties a workman is required to perform in course of his employment and certify the percentage of loss of earning capacity. It does not appear that the doctor had any knowledge of the nature of job the workman was required to perform. There was material on record to give a finding with regard to the nature of job the injured workman was to perform while employed as a coolie by his employer. His employer has not breathed a word about the nature of the job. Workman has not also stated the nature of the job he was required to perform. It is not the finding of the Commissioner that the only job of the injured was to climb the ladder of a rig and fix pipe for which he has been employed. If no skill is required for fixing a pipe, normal work of a coolie could not have been taken into consideration by the Commissioner and the percentage of loss of earning capacity could have been determined by analysing it with the percentage of loss of earning capacity for the injuries as reflected in Schedule I. Since award by the Commissioner is subjected to appeal as provided in Section 30, his finding ought to have been supported by reasons to enable the appellate Court to consider the reasonableness of such finding on basis of materials. Thus, the impugned order is vulnerable. 8.
Thus, the impugned order is vulnerable. 8. Once I come to the conclusion that the judgment is vulnerable, I am inclined to hold that interest of justice would be best served in case I set aside the award and direct the Commissioner to make a fresh award after giving opportunity to both the parties to bring materials on record for consideration of the Commissioner. I make it clear that the compensation payable is statutorily fixed and accordingly, in absence of cross-objection by workman, compensation already awarded can be enhanced, if on determination of the percentage of loss of earning capacity by the Commissioner, the workman becomes entitled to higher compensation on basis of his age and monthly wages. 9. To expedite the conclusion of the proceeding, I direct both the parties to appear before the Commissioner on January 15, 1992 on which day Commissioner shall fix a date of enquiry so as to conclude the same by end of May, 1992. 10. In the result, appeal is allowed. There shall be no order as to costs. Final Result : Allowed