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2019 DIGILAW 1076 (GAU)

Oriental Insurance Co. Ltd. v. Md. Apijul Rahman @ Rafiqul Hoque @ Apijal Hoque

2019-09-19

ACHINTYA MALLA BUJOR BARUA

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JUDGMENT : Achintya Malla Bujor Barua, J. Heard Mr. S.K. Goswami, learned counsel for the appellant. Office note dated 14.09.2018 shows that Mr. S.C. Biswas, Mr. H. Rahman, Mr. S.D. Chowdhury, learned counsel had entered appearance on behalf of respondents No.2(a) and 2(b) by filing vakalatnama. Mr. R.K. Agarwala, Mr. P. Patowari, Mr. M. Talukdar and Mr. T. Mandal had entered appearance by filing vakalatnama on behalf of respondent No.1. In view of the appearance of the learned counsel, we accept that notice had been duly issued. Today none appears for the respondent. Earlier when the matter ws called upon, none appeared for the respondent. Consequently, we propose to proceed in the absence of the learned counsel. 2. Mr. S.K. Goswami, learned counsel for the appellant assails the judgment dated 17.11.2009 of the Commissioner, Workmen's Compensation, Dhubri on the ground that the injury sustained by the workman claimant had not been brought on record through the evidence of appropriate medical practitioner who would be competent to give assessment on the nature of the injury sustained and the loss of percentage of earning capacity as a result of such injury. On the other hand, the assessment of the injury and the loss of earning capacity was undertaken by the Commissioner, Workmen's Compensation, Dhubri upon himself rather than insisting upon the medical evidence for the purpose. 3. The aforesaid aspect has been settled by this Court in a plethora of judgments including United India Insurance Co. Ltd. vs. Manoranjan Das and Anr., 2008 Supp GauLT 329, New India Assurance Co. Ltd vs. Tarun Chandra Das and Anr., 2008 Suppl GauLT 332 and National Insurance Co. Ltd. vs. Manoranjan and Anr., (2007) 2 SCC 349 and also United India Insurance Co. Ltd vs. Kasibor Rahman and Anr., (2010) 2 GauLT 384 , wherein it had consistently held that it is only for the authorized qualified medical practitioner to give evidence on the percentage and nature of the injury sustained as well as percentage of loss of earning capacity due to such injury. 4. The Commissioner, Workmen's Compensation on his own does not have any jurisdiction or authority of law to take it upon himself and make the said assessment. 4. The Commissioner, Workmen's Compensation on his own does not have any jurisdiction or authority of law to take it upon himself and make the said assessment. In the present case also, we have taken note of that there is no appropriate medical evidence as regards the nature and percentage of injury sustained as well as loss of earning capacity due to such injury. It was the Commissioner, Workmen's Compensation who took it upon himself to make the said assessment. 5. Accordingly, the judgment dated 17.11.2009 of the Commissioner, Workmen's Compensation, Dhubri in W.C. Case No.05/2003 is set aside. Upon the matter being set aside, it now stands remanded back to the Commissioner, Workmen's Compensation for a fresh adjudication by bringing on record appropriate medical evidence as regards the percentage and nature of injury sustained by the workman as well as the loss of earning capacity as a result of such injury. 6. Send back the LCR. Upon receiving of the LCR, the Workmen Compensation shall issue fresh notice to the parties. 7. The amount already deposited and released in favour of the workman shall be adjusted against any subsequent compensation that may be awarded by the Commissioner. The appeal stands allowed to the extend indicated above.