Judgment · High Court

Heard Mr. J. Singh, learned senior counsel assisted by Ms. B. M. Chhetri, learned counsel appearing for the appellant as well as Mr. D. K. Saiki a, learned counsel appearing for the respondent No.1. This is an appeal filed under Section 30 of the Workmen’s Compen 02. sation Act, 1923, now Employees’ Compensation Act, 1923 by the New India Assuran ce Co. Ltd. against the judgment and award dated 31.05.2005 as passed in W. C. C ase No.244 of 2003 by the Commissioner, Workmen’s Compensation, Guwahati. At the time of admitting the appeal no substantial question of l 03. aw was formulated as required under Section 30(1) of the Workmen’s Compensation Act, 1923. But from the memorandum of appeal, it appears that the following subs tantial question of law is involved in this appeal: Whether the award has been assessed in defiance to the provisions of Sec tion 4(i)(c)(ii) read with the explanation below of the Workmen’s Compensation A ct, 1923 ?

Mr. J. Singh, learned senior counsel submitted that the entire a ssessment is based on surmise and without any evidence and as such the assessmen t is perverse and unsustainable in law.

It appears that a qualified medical practitioner, namely, Dr. Du lal Sarkar, who appeared as the PW-2 before the Commissioner, Workmen’s Compensa tion has assessed the disability at 45 per cent and the corresponding loss of ea rning capacity at 40 per cent. From the Exbt.5 document it appears that the clai mant-workman suffered fractures in the lower end of the humorous of left side ap art other minor injuries. This Court has critically examined the deposition of the PW-2 wh 06. o categorically stated that he issued the certificate, the Exbt.5, after examina tion of the workman. Even though the PW-2 admitted that he did not ascertain the recovery of the injury after doing the X-ray but on physical examination he cam e to the said assessment. But no question has been put to the PW-2 as to whether he has considered the injuries in the Schedule-I as appended to the Workmen’s C ompensation Act, 1923 at the time of making the assessment of the disability or assessing the loss of corresponding earning capacity. Mr. D. K. Saikia, learned counsel for the workman-respondent sub 07. mitted that there is no infirmity in the finding as the qualified medical practi tioner has assessed and aided the Commissioner for Workmen’s Compensation for as sessing the physical disability and the corresponding loss of earning. Therefore , the objection as raised by Mr. Singh, learned senior counsel for the appellant has no substance at all.

On appreciation of the rival contention, this Court finds that the Commissioner, Workmen’s Compensation by taking the aid of the qualified med ical practitioner has assessed the loss of earning and as such the said finding is not required to be interfered with. As a result, the assessment of compensati on made by the Commissioner, Workmen’s Compensation, Guwahati is affirmed by thi s Court. However, the said award shall carry interest @ 7‰% in view of the decis ion of the Oriental Insurance Co. Ltd. Vs. Mohd. Nasir and another as reported i n (2009) 6 SCC 280 from the date of filing of the claim-petition till the date o f adjudication i.e. 21.05.2005 and thereafter @ 12% till the payment is made. Th e appellant is directed to pay the entire sum, if not already paid, before the C ommissioner, Workmen’s Compensation with interest within a period of one month f rom today.