High Court · 1992

This is an appeal under Section 30 of the Workmen’s Compensation Act, 1923 (now the Employee’s Compensation Act,1923) against the judgment and a ward dated 26.07.2001 as passed by the Commissioner, Workmen’s Compensation, Dh ubri in W.C. No.38 of 1999. 3. The respondent No.1 namely Samad Ali suffered grievous injuries in the accident in the course of and out of the employment when he was travellin g in a vehicle(truck) bearing registration No.AS.25/4115 on 15.03.1999. The said vehicle met with an accident on the 31, National Highway near Chirakuta village under the Chepar Police Station. For recovery of damage the workman has suffere d, he filed a claim petition under Section 4 of the Workmen’s Compensation Act,1 923 (now, Employee’s Compensation Act,1923), claiming that he received permanent partial disability to the extent of 60% and to support his contention he submit ted a certificate issued by a qualified medical practitioner namely, Dr. R.N. Ch akrabarty, where it has been categorically stated that the physical disability r eceived by the workman is to the extent of 60%. 4. The appellant as the opposite party No.2 in the proceeding befor e the Commissioner resisted such claim. After culmination of the recording of ev idence the appellant filed one written argument highlighting and contending that without the claimant-workman being examined by the qualified medical practition er, the loss of earning for the injuries (non-scheduled) cannot be returned by t he Commissioner of Workmen’s Compensation, but the said objection was discarded by the Commissioner on the following findings : (cid:28)On the other hand it is held by this court in regards of the medical certificat e examination furnished by the petitioner before this court which is required to be examined the said medical certificate by appearing evidence in person by the Doctor issued by him before the court is not rigidly applicable in case of the proceeding under the Workman’s Compensation Act,1923, in this connection clearly indicates in the Workmen’s Compensation Act,1923. Section-23 and Evidence Act,1 872- Section-1, Commissioner powers and procedure certificate of a Doctor was ad mitted in evidence without examining the doctor whether a certificate of a docto r can be admitted in evidence without examining the doctor who issue it Held : y es; the provision of evidence Act are not made applicable to a proceeding before the commissioner in view of Section-1 of evidence Act (air 1957 sc 882 relied o n). It is further held on the quantum of compensation as contended by the learne d Advocate for the Opposite Party No.2 in citing a decision case reference 2001 (1) TAC-446(SC) Amar Nath -VS- M/S Continental Constructions Ltd., New Delhi whe rein the Hon’ble Supreme Court reduced by awarding the quantum of the compensati on under the provisions of item No.26, Part-II of the Schedule-I of the Workmen’ s Compensation Act,1923, but the instant case is non-schedule, the injuries sust ained by the petitioner are found no place in the any schedule of the Workmen’s Compensation Act,1923, hence the instant compensation claim case has got no rele vancy with the above case cited by the learned Advocate for the Opposite Party N o.2 in his written argument and in this connection, this court is satisfied to i ncite a case (sic) decision reference 1993 ACJ-1035 in the High Court of Kerala at Ernakulam (M.F.A. Nos. 126 and 985 of 1990 and 58 and 505 of 1992 decided on 26-9-1992) United India Insurance Co. Ltd. and others versus Sathee Madhavan and others. Workmen’s Compensation Act,1923, Section-4(1)(c)(ii)-compensation workm an sustained non-schedule injuries-commissioner did not accept the percentage of disability as certified by a qualified medical practitioner but fixed a higher percentage of loss of earning capacity and awarded compensation-contention that loss of earning capacity should be assessed by the qualified medical practitione r and the same can not be judged by the Commissioner - whether the Commissioner has jurisdiction to fix the percentage of disability at variance with the percen tage of disability certified by a qualified medical practitioner- Held : yes; co mmissioner alone is charged with the duty of adjudicating the compensation payab le to the workman; percentage of disablement cannot be co-extensive with the los s of earning capacity in all situations; loss of earning capacity depends upon t he injury and the nature and character of the avocation of the Workman; medical evidence though relevant can not be decisive factor (AIR 1957 Cal-660 and 1970 A CJ 320 (Calcutta) followed (Para 10,13,14), hence this court holds the facts tha t the objections by raising the above points pleaded by the learned Advocate for the Opposite Party No.2 before this court in his written argument in respect of the instant case are speculative, misimplication, has no merit and legal force for the ends of justice for which it is liable to be rejected (cid:29).

5. The substantial question that has been suggested is as under: Whether the learned Commissioner on his own can assess earning loss of the claim ant to the extent of 60% without taking any evidence of the Doctor? The above findings has catapulted the challenge in this appeal. Another ancillary question that has been raised by the appellant is: Whether the interest @ 12% can be imposed from the date of accident in view of t he provisions as laid in Section 4A of the Workmen’s Compensation Act,1923?

6. Mr. D. Chakraborty, learned counsel appearing for the appellant, relied on a decision of this Court as rendered in New India Assurance Company L td. Vs. Sanjit Kumar & Anr., as reported in 2000 (2) GLT 567, wherein this Court held : (cid:28)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 asse ssed by a qualified medical practitioner it cannot be said to be a mere formalit y. The qualified medical practitioner also cannot ass the loss of earning capaci ty in his guess work but the nature of injuries, the percentage of physical disa bility, the capacity of the injured to perform the nature of work with specific reference to the type of work he is engaged in an several other such factors to come to a finding with regard to the loss of earning capacity. In that view of t he matter, in absence of the evidence of the doctor in that regard it is not per missible 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 Compensa tion 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 sustain able in law. (cid:29)

7. So far it relates to the question of interest, Mr. Chakraborty h as also relied a decision of the Apex Court in Oriental Insurance Company Ltd. V s. Mohd. Nasir & Anr., as reported in (2009) 6 SCC 280, wherein the Apex Court h eld : (cid:28) &.. we are of the opinion that interest will also be payable at the rate of 7‰% per annum from the date of filing of the application till the date of award. Th e rate of interest thereafter shall be payable in terms of the order passed by t he Commissioner. (cid:29) This ratio is required to be read with the provisions of Section 4-A(3) of the Workmen’s Compensation Act,1923. From the conjoint reading of the said ratio and the statutory pr 8. ovisions as referred, it would be apparent that the liability of payment falls d ue after a month from the date of accident. Therefore, the Commissioner, Workmen ’s Compensation has committed a serious illegality in directing payment of inter est @ 12% from the date of accident. It is categorically observed that the inter est @ 7‰% shall be payable to the workman after a month from the date of acciden t till the day of adjudication and therafter at the statutory and inflexible rat e of interest i.e. 12% per annum. In this case, it ought to have been 7.5% from 14.04.1999 till the date of adjudication and thereafter the awarded sum would ca rry interest @12% till the payment is made. So far the question that has been ra ised regarding assessment of loss of earning of the workman, the law itself is v ery clear and there is no amount of ambiguity. For that purpose, the provision o f Section 4(1)(c)(ii) is hereunder reproduced for purpose of appreciating it alo ng with the Explanation-II appended below the said provision : (cid:28)4. Amount of compensation.(1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely :- (a) (b) xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxx xxxxxx (c) where permanent partial disablement results from the injury xxx xxxxxxx (i) xxxx (ii) in the case of an injury not specified in Schedule-I, such percenta ge 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 medi cal practitioner) permanently caused by the injury. Explanation I.- xxxxxxx xxxxxxx xxxxxx Explanation II.- In assessing the loss of earning capacity for the purposes of s ub-clause (ii), the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in relation to different injuries specif ied in Schedule I (cid:29). Therefore, it evinces clearly that for purpose of determining th 9. e proportionate loss of earning capacity vis-à-vis the disability it has to be a ssessed by the qualified medical practitioner, not by the Commissioner and the m edical practitioner as referred has to assess the loss of earning capacity havin g due regard to the percentage of incapacity or disability having relation to th e injuries as specified in the Schedule-I of the Workmen’s Compensation Act. As such, the substantial questions as formulated are answered in the affirmative fo r the appellant. Therefore, the findings as regards the assessment of loss of ea rning capacity and the payment of interest are hereby set aside. 10. The case is remanded back to the Commissioner, Workmen’s Compens ation only for a limited purpose to ascertain the loss of earning capacity by a qualified medical practitioner as per the provision of law as referred above. Th ereafter, the Commissioner shall redraw the entire award and also make necessary direction in view of the observation made herein for payment of interest. The e ntire matter has to be finalised within a period of 2(two) months from the date of receipt of the records from this Court. It would be the duty of the Commissio ner, Workmen’s Compensation to summon a qualified medical practitioner for purpo se of his opinion on the corresponding loss of earning vis-à-vis the injuries as suffered by the claimant-workmen. For the reasons as aforesaid, this appeal stands allowed to the

11. extent as indicated above. 12. er as to costs. In the fact and circumstances of the case, there shall be no ord Send down the LCRs forthwith.