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2003 DIGILAW 246 (GAU)

National Insurance Company Ltd. v. Atowar Hussain

2003-06-05

AFTAB H.SAIKIA

body2003
JUDGMENT A.H. Saikia, J. 1. Heard Mr. M. Bhuyan, learned Counsel for the appellant/petitioner. None appears for the respondents though the name of Mr. J. Mollah and Mrs. N.D. Sarmah have been shown as the learned Counsel for the respondent in the weekly cause list dated 2.6.2003 to 6.6.2003. 2. By the impugned order dated 13.7.1998 the learned Commissioner, Workmen's Compensation, Dhubri awarded an amount of Rs. 1,55,985/- as due compensation for the injury suffered by the claimant/respondent No. 1. 3. The respondent No. 1, being engaged as driver by the respondent No. 2, on 19.4.1996 while driving the vehicle (bus) bearing registration No. ASG 2871 from Bilasipara towards Chapar, met with an accident on the National Highway No. 31 at Hakama under Bilasipara Police Station in the District of Dhubri (Assam) and sustained multiple grievous injuries causing the petitioner to suffer in his left leg tibia, back pain and shortening his left leg in the aforesaid accident. As a result of such injury, the respondent No. 1 became permanently disabled. After getting medical treatment, the respondent No. 1 claimed due compensation before the learned Commissioner, Workmen's Compensation, Dhubri and the Commissioner awarded the above mentioned amount. 4. Challenging the impugned award, Mr. Bhuyan, learned Counsel for the petitioner has vehemently contended that in passing the impugned award the learned Commissioner has caused much irregularity inasmuch as the said award has been passed in complete violation of the provision of law prescribed under the Workmen's Compensation Act (for short 'the Act'). According to him no compensation can be granted for any physical disability unless there is loss of earning capacity resulting from an injury being only a scheduled injury. It is also contended that when the injury is not scheduled injury as mentioned in Schedule-1 of the Act, the loss of earning capacity must be proved by evidence. Such loss of earning capacity must be proved or assessed by a qualified medical practitioner showing the permanent disablement but in the instant case the injury suffered by the respondent No. 1 was neither of the nature of the said scheduled injury contemplated in the Schedule-I nor was it assessed by a qualified medical practitioner. Besides the learned Commissioner awarded the compensation as mentioned above, accepting the income of the respondent No. 1 as Rs. 2,000/- p.m. whereas admittedly the respondent No. 1 earned Rs. Besides the learned Commissioner awarded the compensation as mentioned above, accepting the income of the respondent No. 1 as Rs. 2,000/- p.m. whereas admittedly the respondent No. 1 earned Rs. 500/- as his wages per month and thus the fixation of monthly wages at an amount of Rs. 2,000/- p.m. is not permissible under the Act. 5. I have carefully gone through the impugned order and also the relevant provision of law i.e. Section 4(b) and (c) as well as Schedule-I of the Act as referred by the learned Counsel for the petitioner. On close inspection of those provisions of law as well as the materials available on record including the impugned order, it is seen that the injury suffered by the respondent No. 1 did not fall within the specified injury mentioned in the Schedule-I. That apart, no assessment had been made by any qualified medical practitioner to certify the injury of the respondent No. 1 in order to show his loss of earning capacity. It also appears that the learned Commissioner has considered the monthly wages of the respondent No. 1 as Rs. 2,000/- p.m. where admittedly he was earning only Rs. 200/- p.m. as monthly wages. 6. Law does not permit to grant any compensation for any physical disability save and except for the loss of earning capacity arising out of an injury which must be a scheduled injury described in the Schedule-I of the Act. If such injury is not a scheduled one then the loss of earning capacity of claimant must be proved or assessment by a qualified medical practitioner indicating the permanent disablement. It is also impermissible to make enhancement of monthly wages beyond admitted wages of the claimant. 7. In that view of the matter, this Court is of the view that the end of justice would be satisfied if the award so awarded is modified to the extent of Rs. 75,000/- to be the just and due compensation for the injury suffered by the petitioner. It is ordered accordingly. In the result this appeal is allowed with the modification indicated above. 8. At this stage Mr. Bhuyan, learned Counsel for the petitioner has submitted that at the time of admission of this appeal, they have deposited the entire amount in terms of Section 30 of the Act and this Court by order dated 30.6.1999 passed in Misc. In the result this appeal is allowed with the modification indicated above. 8. At this stage Mr. Bhuyan, learned Counsel for the petitioner has submitted that at the time of admission of this appeal, they have deposited the entire amount in terms of Section 30 of the Act and this Court by order dated 30.6.1999 passed in Misc. Case No. 136/1999 directed the Commissioner to release Rs. 50,000/- to the workman out of the total amount so deposited by the Insurance Company and accordingly a prayer has been made to allow the respondent No. 1 only to withdraw the amount to the extent of Rs. 25,000/- excluding Rs. 50,000/- as already directed, out of the entire amount so deposited by the Insurance Company and the appellant may be allowed to withdraw the balance amount. Prayer is allowed. This Court does order accordingly. Appeal allowed.