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2007 DIGILAW 627 (GAU)

New India Assurance Co. Ltd. v. Tarun Chandra Das

2007-09-19

BROJENDRA PRASAD KATAKEY

body2007
JUDGMENT B.P. Katakey, J. 1. This appeal Under Section 30 of the Workmen's Compensation Act, 1923 (in short, the Act) has been filed without formulating any substantial question of law. 2. Since no appeal without any substantial question of law under the proviso to Section 30(1) of the Workmen's Compensation Act lies against any order passed by the learned Commissioner. Workmen's Compensation, awarding compensation, the following substantial question of law is being framed, upon hearing the learned Counsel for the parties and on perusal of the materials available on record including the impugned award: (i) Whether the learned Commissioner, WC can pass an award in respect of a non-schedule injury without there being any certificate issued by any registered medical practitioner relating to the loss of earning capacity of the claimant as required Under Section 4(1)(c)(ii) of the Act; and whether the medical practitioner who issued such certificate it required to be examined as witness. 3. As agreed to by the learned Counsel for the parties, after framing the substantial question of law as aforesaid, the appeal has been taken up for hearing on merit, today itself. 4. Heard Mr. S. Dutta, learned Counsel for the Appellant-Insurance Company as well as Mr. D.K. Saikia, learned Counsel for the Respondent No. 1 None appears for the Respondent No. 2. 5. This appeal is directed against the award dated 28.5.2001 passed by the learned Commissioner, Workmen's Compensation, Kamrup at Guwahati in WC Case No. 211/2000 awarding a sum of Rs. 66,301/- with simple interest @9% per annum and directing the Appellant-Insurance Company to satisfy the said award within a period of 30 days from the date of passing of the award as the vehicle was duly insured by the Appellant-Insurance Company by issuing a Policy of Insurance which was valid at the time when the accident occurred. 6. The Respondent No. 1 as claimant filed an application before the Commissioner, Workmen's Compensation, Kamrup at Guwahati under the provisions of the Act, contending inter alia that while he was driving the vehicle (Bus) bearing Registration No. AS-15/3495 belonging to the Respondent No. 2 (Owner), the said Bus met with an accident and as a result of which, he sustained grievous injuries on his person for which he was to be hospitalized. It has been contended that he received injuries on his right leg, head and lacerated injuries all over his body apart from sustaining injuries on his left thigh and on the lumber region. It has further been contended that the doctor has certified that the injuries sustained by him because of the accident resulting in 50% disablement and that at the time of accident his monthly income was Rs. 6,300/- which includes the daily allowance. The Commissioner, Workmen's Compensation, on receipt of the said application, registered WC Case No. 211/2000 and issued notice to the Respondent No. 2 Appellant as well as the owner of the vehicle. 7. The Respondent No. 2/owner by admitting the accident, the injuries suffered by the Respondent No. 1 claimant as well as his employment, has contended in the written statement that he had been paying a sum of Rs. 300/- as monthly salary plus Rs. 150/- as daily allowance to the claimant, totaling Rs. 4,800/- per month. 8. On the other hand, the Insurance Company in its written statement has denied the contentions of the claimant in the claim petition and put the claimant to the strictest proof thereof. It has been contended that it is very doubtful whether any accident occurred, as alleged by the claimant as the claimant a few months back also filed another application, claiming compensation under the provisions of the Act which was registered as WC No 191/2000, wherein also the claimant's case was that because of the injuries sustained by him, he could not pursue his profession as driver. 9. The claimant in support of the claim petition examined himself and was duly cross-examined by the Appellant Insurance Company. Neither the Insurance Company nor the owner of the vehicle adduced any evidence in support of their respective pleas. The doctor who had issued the certificate certifying the disability of the claimant admittedly was not examined by the claimant as witness in the proceeding before the learned Commissioner, Workmen's Compensation. However, the certificate issued by the doctor was exhibited as Ext.21 by the claimant during the course of his evidence, which is quoted below for better appreciation: On examination (1) A contusion on Rt. Knee. X-ray examination shows linear fracture of Rt. Patella. There is 50% disability of the joint. (2) A lacerated injury over Rt. Parental region of scalp. (3) A contusion of left thigh. Knee. X-ray examination shows linear fracture of Rt. Patella. There is 50% disability of the joint. (2) A lacerated injury over Rt. Parental region of scalp. (3) A contusion of left thigh. Injuries No. (1) is grievous. Injuries No. (2) are simple. All injuries were caused by blunt weapons. 10. It appears from the aforesaid medical certificate issued by the medical practitioner (Ext. 21) that the doctor has certified the disability of the claimant to be 50% of the joint. There is no ascertainment of the loss of earning capacity by the doctor, as the same has not been certified by him. 11. Section 4 of the Act provides the quantum of compensation to be awarded by the Commissioner, WC, Section 4(1)(c)(ii) requires that in case of injury not specified in schedule, the Commissioner, WC is to award such percentage of compensation payable in 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. 12. It is, therefore, evident from the said provision that it is the requirement of law that the loss of earning capacity has to be assessed by the qualified medical practitioner. The Commissioner, WC, therefore, unless there is an assessment of loss of earning capacity 'of the injured because of the injury sustained by him arising out of and in course of his employment, has no power to assess such loss of earning capacity. The reason is very simple because such loss of earning capacity can only be certified by a competent doctor as the court or the learned Commissioner has no expertise in that regard. 13. It is evident from Ext. 21 that the doctor has only certified the percentage of disablement of the claimant in the joint and has not certified the loss of earning capacity. The learned Commissioner, WC on the basis of such certificate simply without discussing anything has arrived at a finding that the loss of earning capacity of the claimant was 30%. Such finding of the learned Commissioner, WC regarding the loss of earning capacity therefore cannot be accepted. The learned Commissioner, WC on the basis of such certificate simply without discussing anything has arrived at a finding that the loss of earning capacity of the claimant was 30%. Such finding of the learned Commissioner, WC regarding the loss of earning capacity therefore cannot be accepted. Moreover, though the strict rule of evidence is not applicable in a proceeding under the Act, the same being a summary proceeding and the social beneficial legislation, the party opposing the prayer for compensation must be given a reasonable opportunity to show or to controvert that the claimant has not suffered the loss of earning capacity as certified by a qualified medical practitioner. Such reasonable opportunity can only be afforded to the parties, opposing such prayer, if the person who certifies the loss of earning capacity of the claimant is examined by the Commissioner, so that such doctor can be cross-examined by such party opposing such prayer. The learned Commissioner thereafter, has to decide the loss of earning capacity of the workman, on the basis of the materials available on record. 14. In view of above, I am of the view that a qualified medical practitioner has to certify the loss of earning capacity of a claimant, who is to be examined in the proceeding before the learned Commissioner so that he can be cross-examined by the parties controverting such percentage of loss of earning capacity, which admittedly has not been done in the intent case. However, such loss of earning capacity can be proved by a claimant/workman by examining the medical practitioner in the proceeding before the learned Commissioner, W.C, even if no certificate has been issued earlier. 15. That being the position, I set aside the award dated 28.5.2001 passed by the learned Commissioner, W.C. Kamrup at Guwahati in WC Case No. 211/2000 and remit the matter back to him for a decision afresh in accordance with the provisions of law after giving opportunity to the claimant to adduce further evidence including the evidence of the doctor regarding the loss of earning capacity because of the injuries sustained by him in the accident. The learned Commissioner while ascertaining the amount of compensation awardable under the Act shall also decide about the age as well as monthly wages of the claimant within the meaning of the Act. The learned Commissioner while ascertaining the amount of compensation awardable under the Act shall also decide about the age as well as monthly wages of the claimant within the meaning of the Act. However, it is made clear that the amount, if any, already disbursed to the workman pursuant to the order dated 12.9.2001 passed by this Court shall not be refunded to the Insurance Company even if the learned Commissioner, WC, on fresh appreciation of evidence on record, comes to a finding that the claimant is entitled to a lesser amount than the amount which has already been drawn by the claimant. In case, the learned Commissioner comes to the finding that the workman is entitled to an amount as compensation more than the amount, if any, already paid to him, such amount has to be paid by the Appellant Insurance Company, there being no dispute relating to the insurance coverage. 16. The parties are directed to appear before the learned Commissioner, WC, Kamrup at Guwahati on 01.11.2007. 17. Since the Respondent No. 2 i.e. the owner of the vehicle is not represented by any counsel, the Commissioner, WC shall issue notice on the said Respondent before proceeding further in the matter. No costs. 18. Sent down the records.