Research › Search › Judgment

Gauhati High Court · body

2006 DIGILAW 955 (GAU)

National Insurance Company Ltd. v. Jagatpal Singh

2006-10-31

I.A.ANSARI

body2006
1. This appeal under section 30 of the Workmen is Compensation Act, 1923, has arisen out of an order, dated 24.1.2000, passed, in Case No. NWC 28/99, by the Commissioner for Workmen Compensation, Nagaon, awarding, in all, a sum of Rs. 1,47,873.00 in favour of the workmen respondent, the appeal having been preferred by the insured, who has been directed to make payment of the awarded amounts. 2.1 have heard Mr. A. Ahmed, learned counsel for the insured appellant. None has appeared on behalf of the respondents. 3. The material facts, giving rise to this appeal, may, in a narrow compass, put thus: The respondents herein was a driver in a bus bearing registration No. ASD-5305 (bus), with the present appellant as insurer of the bus. On 9.2.1999, at about 1 pm, while the workman was driving the bus, it met with an accident at Solong, Nagaon, the accident having not been due to any fault, negligence and/or rashness on the part of the driver. In course of time, the claimant raised a claim for compensation under the Workmen's Compensation Act, 1923, wherein he claimed, inter alia, that he had' become disabled due to fracture of the lower end of Tibia and Fibula and is unable to work any longer as a driver, his salary and allowances, at the relevant time, being Rs. 2,000 per month. The learned Commissioner, relying on ext.3, which is a certificate issued by a doctor, assessed the compensation and passed the impugned award. The relevant observations made, in this regard, and the findings reached by the learned Commissioner are reproduced hereinbelow : "This is a case of personal injuries caused to Shri Jagat Pal Singh, driver of the said vehicle. As per law under the Workmen's Compensation Act, the petitioner is entitled for Compensation under the following heads : Although no amputation was done but to this effect the petitioner produced one medical certificate where the doctor assessed the disability at 60% after examining the injured workman, i.e., the claimant petitioner. The court is also decided to accept the same view considering the genunity, relevant factors and justice. According to the petitioner his salary was Rs. 2,800 including allowances P.M. and his age was 40 years at the relevant period. Now, therefore, taking into consideration of his monthly salary Rs. The court is also decided to accept the same view considering the genunity, relevant factors and justice. According to the petitioner his salary was Rs. 2,800 including allowances P.M. and his age was 40 years at the relevant period. Now, therefore, taking into consideration of his monthly salary Rs. 2,000 P.M. and the same is accepted as skilled person by the court and his age to be 40 years as per medical report of the doctor at the relevant period, the claimant petitioner is entitled to Compensation as per clause (a) of sub section (1) of section 4 of the Act, as follows as amended. 60% x 1,200 x 184. 17 = Rs. 1,32,602.40 with interest @ 12% per annum as per clause (a) of sub section (3) of section 4A of the Act, as amended." 4. While considering the present appeal, what needs to be noted is that the ascertaining of the earning capacity of an injured workman is sine qua non for determination of quantum of compensation. The mode of assessment of loss of earning capacity and the person, who is competent to make such assessment, have been specified in section 4 of the Act. The provisions, relevant for the purpose, may be quoted hereinbelow : "Section 4(l)(c)(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". 5. In the present case, the fact that the accident took place as described by the workman, that the accident was not the fault of the workman and that the workman, while driving the said vehicle as driver, sustained injuries on his person were not in dispute in the claim proceeding. However, the extent of his disability and loss of his earning capacity were in dispute in the proceeding. In such circumstances, it was the duty of the learned Commissioner to ensure that the determination of loss of earning capacity was in accordance with law. In the light of Explanation to sub-clause (ii) of clause (c) of sub-section (1) of section 4 of the Act, it is clear that the assessment of loss of earning capacity has to be done by a qualified medical practitioner. In the light of Explanation to sub-clause (ii) of clause (c) of sub-section (1) of section 4 of the Act, it is clear that the assessment of loss of earning capacity has to be done by a qualified medical practitioner. Who can be described as a qualified medical practitioner has also been specified in the Act. In the case at hand, no qualified medical practitioner had assessed the loss of earning capacity. What the certificate (Ext. 3) reflects is the doctor's opinion with regard to the extent o£ the injured workman's disability and not his earning capacity. What needs to be, however, borne in mind is that the extent of physical disability is not synonymous with, or same as, loss of earning capacity. On the basis of the extent of disability, the loss of earning capacity is required to be determined by the medical practitioner in terms of Schedule-1 to the Act. 6. Ideally, in a claim for compensation under the Act, the medical practitioner, who certifies the extent of disability or loss of earning capacity, shall be examined as a witness so as to afford an opportunity to the persons, who may be fastened with the liability to make payment of compensation, to cross-examine the medical practitioner and determine the correctness of his findings or opinion. In the case at hand, in the absence of any specific evidence, given by a qualified medical practitioner, in terms of section 4(l)(c)(ii) of the Act, the Commissioner under the Act could not have assessed the loss of earning capacity or determine the compensation. As has already been indicated above, the Commissioner hast in fact/treated the extent of disability, as certified by the medical practitioner, as the loss of earning capacity, which is wholly incorrect and not sustainable in law. 7. In view of the fact that the mandatory requirement of section 4(l)(c)(ii) of the Act is that the loss of earning capacity be assessed by a qualified medical practitioner and the same has not been done in the present case, it logically follows that the determination of compensation, in the present case, was nothing, but a guess-work and an award, based on such a gross-work, cannot be allowed to stand good on record. 8. In the result and for the reasons discussed above, this appeal partly succeeds. 8. In the result and for the reasons discussed above, this appeal partly succeeds. The impugned award, dated 24.1.2000, is hereby set aside and the proceeding is remanded to the learned Commissioner with direction to obtain evidence of a registered medical practitioner as regards the loss of earning capacity of the workman-respondent and, then, dispose of the proceeding expeditiously and, preferably, within a period of three months from the date of receipt of a copy of this order. 9. Send back forthwith the LCR with a copy of this order.