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2008 DIGILAW 688 (DEL)

NATIONAL INSURANCE CO. LTD. v. SATISH

2008-07-17

REKHA SHARMA

body2008
JUDGMENT : Rekha Sharma, J. 1. This appeal is filed against the judgment of the Commissioner under Workmen's Compensation Act, 1923 dated 24.12.2004. By virtue of the impugned judgment, respondent has been granted compensation to the tune of Rs. 5,08,296 for his having sustained injuries in a road accident which resulted in the restricted movement of his thumb and the left index finger to the extent of 40-50 per cent. The liability for the payment of the amount so awarded has been fastened on the appellant, namely, National Insurance Co. Ltd. 2. Feeling aggrieved from the said order, the insurance company has preferred the present appeal. Notice of the appeal was sent to the respondent who despite service has chosen not to appear. 3. Learned Counsel for the insurance company has not disputed the factum of the accident. What has been disputed is the quantum of compensation awarded to the respondent. A perusal of the impugned judgment shows that the learned Commissioner has relied upon a medical certificate dated 12.12.2004 produced by the respondent wherein the disability suffered by the respondent has been assessed at 40-50 per cent on account of restricted movement of thumb and left index finger and on the basis of the same, has held that in view of the injuries sustained by him, the respondent who was working as a loader at the time of the accident has become incapable of doing any work and has lost 100 per cent capacity to work. This finding of the Commissioner is being challenged on the ground that the medical certificate produced by the respondent and relied upon by the Commissioner is unworthy of reliance as it was not issued by an orthopaedic doctor and in any case the doctor who issued the certificate was not competent to assess the percentage of injuries as he did. According to the counsel, at best the doctor who issued the certificate could indicate the nature of injuries sustained by the respondent and as regard the percentage of disability, the respondent should have got the same assessed from the experts in the field. This having not been done, the medical certificate ought not to have been relied upon at least for the purpose of assessing the percentage of disability suffered by the injured. 4. This having not been done, the medical certificate ought not to have been relied upon at least for the purpose of assessing the percentage of disability suffered by the injured. 4. Learned Counsel for the appellant has also relied upon Schedule I to the Workmen's Compensation Act, 1923, wherein description of such nature of injuries as would be deemed to result in permanent total disablement leading to 100 per cent loss of earning capacity and all category of injuries that would result in deemed partial disablement leading to loss of earning capacity depending upon the nature of injuries are given. The details in relation to permanent total disablement are contained in Part I of Schedule I and the same are as under: Serial No. Description of injury Percentage of loss of Earning Capacity PART I List of Injuries Deemed to Result in Permanent Total Disablement (1) Loss of both hands or amputation at higher sites 100 (2) Loss of a hand and a foot 100 (3) Double amputation through leg or thigh, or amputation through leg or thigh on one side and loss of other foot 100 (4) Loss of sight to such an extent as to render the claimant unable to perform any work for which eyesight is essential 100 (5) Very severe facial Disfigurement 100 (6) Absolute deafness 100 5. Having regard to the above details as contained in Part I of Schedule I, it is contended by learned Counsel for the appellant that the nature of injuries sustained by the respondent was far less severe inasmuch as it only resulted in restricted movement of thumb and left index finger. The medical certificate nowhere mentions that injuries incapacitated the respondent from doing any work whatsoever. As a matter of fact, the medical certificate itself says that the extent of disability suffered by the respondent was to the tune of 40-50 per cent. 6. In view of the facts as noticed above and the submissions of learned Counsel for the appellant, I am of the view that the injuries suffered by the respondent cannot be held to be such as to have rendered him totally incapable of doing any work. The Commissioner was wrong in assessing the injuries of the respondent to the extent of 100 per cent. The Commissioner was wrong in assessing the injuries of the respondent to the extent of 100 per cent. I cannot ignore that the various categories of injuries as are described in Part I of Schedule I to the Workmen's Compensation Act, 1923, alone are to be taken to result in 100 per cent disablement of the victim. However, as the insurance company has produced no evidence of its own to dispute the certificate produced by the respondent, I have no option but to rely on the same but not in the manner in which the Commissioner has done. 7. Keeping in view the nature of the injuries sustained by the respondent and the medical certificate assessing such injuries to be 40-50 per cent, I feel that the compensation of Rs. 2,50,000 shall be just and reasonable. 8. As per the order dated 5.9.2005, the respondent has already received 50 per cent of the awarded amount. In view of the order now passed, the remaining 50 per cent need not be released to the respondent. With these directions, the appeal is disposed of.