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2016 DIGILAW 381 (GAU)

Oriental Insurance Co. Ltd. v. Md. Nur Zamal Sk

2016-05-06

N.CHAUDHURY

body2016
JUDGMENT : This appeal under Section 30 of the Workmen’s Compensation Act, 1923 ( now renamed as ‘Employees Compensation Act, 1923’) has been preferred by the Oriental Insurance Company challenging the Judgment and award dated 30.12.2014 passed by the learned Commissioner Employee’s Compensation, Dhubri, Assam in E.C. Case No. 20 of 2012. By that judgment, the learned Commissioner has assessed the physical disability and loss of earning capacity of the workman at 30% and thereupon assessed the compensation of Rs.2, 62,074/- along with interest @ of 7% per annum from the date of filing of the application till payment. This judgment and award dated 30.12.2014 has been in the present appeal. 2. The claimant Nur Zamal Sk appeared before the WC Employees Compensation Commissioner, at Dhubri claiming that on 26.6.2012 at about 3.30 am while he was on duty along with his other staff, the vehicle bearing registration No. AS-17B/1778 (Truck) belonging to Sujit Paul met with an accident on National Highway -34 within the district of Uttar Dinazpur at West Bengal. In the process, he sustained compound fracture injuries on his tibia and fibula of the right leg. Karandigi P.S. Case No. 394 of 2012 under Section 279, 337, 338, 427 IPC was registered by the jurisdictional police station and the claimant was brought to civil hospital at Raiganj in West Bengal. Ultimately, he was taken to Dhubri and was admitted at Civil Hospital, Dhubri for his compound fracture. He accordingly served notice under Section 10 of the Act on the owner who did not pay any heed and accordingly the claim petition was preferred before the Commissioner. 3. On being summoned, the opposite parties No. 1 and 2 appeared and submitted their written statement denying responsibility to make payment of any compensation. The claimant did not examine qualified medical practitioner although injury is a non-scheduled one. Be that as it may, the learned Commissioner himself assessed the loss of earning capacity owing to the aforesaid permanent partial disability under Section 4(1)(c)(ii) of the Act and thereupon assessed the disability at 30%. Taking the appropriate fracture, the compensation was assessed at Rs.2,62,074/-. The learned Commissioner held the insurance company liable for making the payment and also ordered that interest @ 7% per annum will be paid on the aforesaid compensation amount. Taking the appropriate fracture, the compensation was assessed at Rs.2,62,074/-. The learned Commissioner held the insurance company liable for making the payment and also ordered that interest @ 7% per annum will be paid on the aforesaid compensation amount. This judgment and award dated 30.12.2014 has been called in question in the present appeal under Section 30 of the Act. 4. I have heard Ms. M. Choudhury, learned counsel for the appellant. Mr. A.R. Agarwalla has already entered appearance on behalf of the respondent/claimant although his name has not been disclosed in the Cause List. Be that as it may, the learned counsel has put forward his argument. 5. Ms. M. Choudhury, learned counsel for the appellant submits that under Section 4(1)(c)(ii) of the Act, Commissioner, Employees Compensation has no jurisdictional authority to decide loss of earning capacity or disability of a victim unless and until a qualified medical practitioner is examined. The statute itself provides that such assessment has to be made only on the basis of opinion of qualified medical practitioner. She has placed reliance on a judgment of this court in the case of New India Assurance Co. Ltd. Vs. Sanjit Kumar & anr. reported in 2000 (2) GLT 567. In paragraph-2 of this judgment, this court held that unless and until a qualified medical practioner is examined, Commissioner, Employees Compensation cannot assess the loss of earning capacity. Relevant paragraphs-2, 3 and 4 of the aforesaid judgment is quoted below for ready reference : “2. I have heard Mr. S.K. Borkataki, learned counsel for appellant and Mr. G.P. Bhowmick, learned counsel for respondents. It is urged by Mr. Borkataki, learned counsel for appellant as follows: (i) That the mode of assessment of loss of earning capacity and the person competent to assess it have been provided in Section 4 of the Act. While judging the loss of earning capacity, the basis of sound principle of medical science and assessment done by a qualified medical practitioner plays a vital role, who is a "qualified medical practitioner'' has also been defined under the Act. The degree of disability and loss of earning capacity are not synonymous. While judging the loss of earning capacity, the basis of sound principle of medical science and assessment done by a qualified medical practitioner plays a vital role, who is a "qualified medical practitioner'' has also been defined under the Act. The degree of disability and loss of earning capacity are not synonymous. There must be a basis for it, but not mere guess work and as such while doing assessment of the loss of earning capacity the qualified medical practitioner will have due regard to different injuries specified in Schedule I. If the Commissioner does not keep in view the requirement of law and passes an award such an award involves substantial question for determination in an appeal and as such an appeal lies to this Court as contemplated under Section 30 of the W.C. Act. (ii) In view of the specific requirement of the provisions of Section 4(1)(c)(ii) of the Workmen's Compensation Act, that the loss of earning capacity is to be assessed by a qualified medical practitioner it cannot be said to be a mere formality. The qualified medical practitioner also cannot assess the loss of earning capacity in his guess work but the nature of injuries, the percentage of physical disability, the capacity of the injured to perform the nature of work with specific reference to the type of work he is engaged in and several other such factors to come to a finding with regard to the loss of earning capacity. In that view of the matter in absence of the evidence of the doctor in that regard it is not permissible for the Court to find out only from the evidence of physical disability to the extent of loss of earning capacity. The Commissioner, Workmen's Compensation in the present case at hand having assessed the loss, without any specific evidence of the doctor, as required under law, the award/judgment is not sustainable in law. 3. On the other hand, Mr. G.P. Bhowmick, learned counsel for respondents submits that even if the percentage of disability has not been assessed by the doctor, the Court in order to do speedy justice to the poor workmen can assess the loss of earning capacity and award compensation. 4. The Workmen's Compensation Act provides the mode and method to determine the compensation. The Court cannot adopt some mode or method which is not provided in the Act. 4. The Workmen's Compensation Act provides the mode and method to determine the compensation. The Court cannot adopt some mode or method which is not provided in the Act. In the portion of the award quoted above, the Court determined the percentage of loss of earning capacity at 50%. That power is not available with the Commissioner. So, this award shall stand quashed and the matter now shall go back to the Commissioner to assess the compensation afresh and in order to do that, he may even ask the doctor to appear before him and give his opinion with regard to percentage of loss of earning capacity.” 6. As pointed out above, Section 4(1)(c)(ii) of the Act is clear enough to hold that loss of earning capacity of an victim can be ascertained only on the basis of opinion of a qualified medical practioner. In the case in hand, the claimant did not examine any qualified medical practitioner and the learned W.C. Commissioner assumed the jurisdiction under himself and on consideration of a certificate, assessed the loss of earning capacity. Such an exercise made on behalf of the W.C. Commissioner does not appear to be strictly in consonance with the mandate of Section 4(1)(c)(ii). Having so found, the sole substantial question of law is framed as follows:- “Whether the learned W.C. Commissioner committed error in assessing loss of earning capacity without aid of qualified medical practitioner.?” 7. Both the learned counsel are heard on the aforesaid substantial question of law. Ms. M. Choudhury as pointed out above has placed reliance in the case of Sanjit Kumar (supra). She has also placed reliance on an unreported judgment of this court in the case of National Insurance Company Ltd. Vs. Mohamad Sahed Ali vide MFA No. 130 of 2004. In both the aforesaid judgments, this court considered the sole substantial question of law and held the view that unless and until a qualified medical practioner is examined, no assessment as to loss of earning capacity of a victim can be made by the Commissioner himself. Having so found, the sole substantial question of law is decided in the affirmative and in favour of the appellant. 8. Accordingly, the appeal stands allowed and the impugned judgment and award is hereby set aside. Matter is remanded back to the learned W.C. Commisioner for affording opportunity to the claimant for examining qualified medical practitioner. Having so found, the sole substantial question of law is decided in the affirmative and in favour of the appellant. 8. Accordingly, the appeal stands allowed and the impugned judgment and award is hereby set aside. Matter is remanded back to the learned W.C. Commisioner for affording opportunity to the claimant for examining qualified medical practitioner. The insurance company shall also be at entitled to examine qualified medical practitioner. Since it is a matter of 2014, the W.C. Commissioner shall decide the matter as expeditiously as possible preferably within a period of 6(six) months from the date of receipt of the records. 9. The appeal stands allowed. No order as to cost.