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2013 DIGILAW 26 (TRI)

United India Insc. Co. Ltd. v. Kartick Baishya

2013-09-16

DEEPAK GUPTA

body2013
JUDGMENT : Deepak Gupta, J. 1. This appeal, filed by the appellant-insurance company is directed against the award dated 5th March, 2004 passed by the learned Commissioner, Workmen's Compensation, West Tripura, Agartala in case No. T.S. (WC) 9 of 2000, whereby he awarded Rs. 2,68,800/- in favour of the claimant a long with interest @ 12% per annum. The short question involved in this appeal is whether in the cases of injuries not mentioned in the Schedule-I of the Workmen's Compensation Act, the Commissioner, Workmen's Compensation can award compensation without there being any evidence of a doctor on record to show what is the extent of loss of earning capacity. 2. The undisputed facts are that the claimant, who was the driver of Jeep No. TRT-1056 was on duty when his vehicle was attacked by extremists and he suffered injuries. It was alleged by the claimant that though the disablement as assessed by the Medical Board, Govt. of Tripura was only 40%, he was entitled to compensation by taking his case to be that of permanent total disablement on the ground that he could not drive the vehicle after the accident. 3. The learned Tribunal accepted the prayer of the claimant and awarded compensation by treating him to be 100% disabled. It would be pertinent to mention that the salary of the claimant was taken to be Rs. 2000/- and compensation was assessed accordingly. The disability certificate which has been placed on record shows that the extent of disability is 40%. The claimant in his statement recorded in Court stated that he has been permanently disabled and the disability certificate has been issued by the Board. He has not even stated that he was 100% disabled. He has not stated that he has lost his job. The learned Commissioner, Workmen's Compensation came to the conclusion that the claimant had lost his job on the basis of the averments made by the employer in the written statement. This cannot be accepted as the gospel truth. The employer did not step into the witness box and the claimant himself did not state that he had been thrown out of job. Surprisingly, the learned Commissioner did not deem it fit to ask the claimant to get himself medically re-examined again to find out what was the extent of disability? This cannot be accepted as the gospel truth. The employer did not step into the witness box and the claimant himself did not state that he had been thrown out of job. Surprisingly, the learned Commissioner did not deem it fit to ask the claimant to get himself medically re-examined again to find out what was the extent of disability? The relevant observations of the Commissioner are as follows: ***** Medical Board for such injuries declared the petitioner Kartick Baishya as disabled to the tune of 40%. I have seen the petitioner at the time of recording of his deposition and also have seen his left injured hand. The left hand of the petitioner became shorter about 5" from his right hand. I have also seen the fingers of the left hand of the petitioner and found them to become stiff. As the left hand of the petitioner became short and the fingers of the said hand became stiff it is not possible on the part of the petitioner to earn anything from his profession who is a driver by profession. As such, in my opinion though petitioner has been declared 40% disabled medically, but for practical purpose for earning of his livelihood his became cent percent disabled. Clause (c) of Sub-Section (1) of Section 4 of the Workmen's Compensation Act, 1923 reads as follows: 4. (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely: “(c) where permanent partial disablement result 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 purpose of sub-clause (ii), the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in relation to different injuries specified in Schedule I; There can be no manner of doubt that even if the disability is not to the extent of 100% keeping in view the nature of job, the nature of injuries etc., the Court may in a particular case come to the conclusion that the loss of earning capacity is more than the percentage of disability. However, before coming to that conclusion the Court should normally ensure that a qualified medical practitioner as provided in Section 4(1)(c)(ii) is examined to assess what is the loss of earning capacity? The Commissioner cannot don the white robes of a doctor and abrogate to itself those duties which are to be carried out by a medical practitioner. A victim may come to the Court pretending to be much more seriously injured than he actually is. A Judge is not trained to assess the disability and this job in most cases should be left to be done by the medical fraternity and not by the judges. This is not to say that in all cases, the Court must ask for the opinion of a doctor. That will depend on the facts of a case. Supposing a person is a driver and his leg is amputated then the Court can reasonably infer that he cannot work as a paid driver. Similarly, if the workman is a mason and his working arm is amputated then the Court can draw a reasonable inference that the loss of earning capacity is 100%. However, other than in such clear cut cases, the Court must obtain the opinion of the medical experts before giving its decision. In this view of the matter, the award of the learned Commissioner, Workmen's Compensation cannot be sustained. 4. However, other than in such clear cut cases, the Court must obtain the opinion of the medical experts before giving its decision. In this view of the matter, the award of the learned Commissioner, Workmen's Compensation cannot be sustained. 4. Having held so, it would not be fair to only assess the compensation at the level assessed by the Medical Board and I am of the view that the claimant must be given another chance to prove what is his actual loss of earning capacity? Therefore, the award of the learned Commissioner, Workmen's Compensation is set aside and the case is remanded to the Commissioner who shall permit the claimant to lead additional evidence to prove what is the loss of earning capacity which has been occasioned to him by the injuries in question. The appeal is allowed in the aforesaid terms. The matter is remitted to the learned Commissioner, Workmen's Compensation who shall assign the original number to the case and decide as early as possible and in any event not later than 31st March, 2014.