High Court
Case Details
MFA 28/2010 BEFORE HON’BLE MR. JUSTICE N. CHAUDHURY Heard Mr. S. Dutta, learned counsel appearing for the appellant and Mr. B. Talukdar, learned counsel appearing for respondent No.1. In this appeal award dated 30.08.2007 passed under the Workman Compensation Act in .W.C. Case No. 2 5/2001 has been challenged, basically the appeal is preferred on the ground that no qualified medical practitioner having been examined in this case, the Commi ssioner, Workmen’s Compensation, Dhubri, committed error in holding that there w as loss of 50% earning capacity of the victim more so when the injury is a non s cheduled one. The learned counsel also argued that the interest imposed on the a ppellant has been directed to run from the date of accident and not from the da te of adjudication which is contrary to the law laid down in this regard. The victim Md. Asiruddin Mondal was a driver of vehicle No. ASZ-3651 (Bu s) which met with an accident on 5.3.2000 at about 1-30 P.M. owing to break fail ure. As a result the driver sustained multiple grievous injury on left leg which was fractured. He was shifted to Bilasipara hospital and received treatment for nearly 3 months. The treatment not having yielded any fruitful result he becam e un-employed. Md. Asiruddin Mondal has been stated to be the sole bread earner of the family and as such the accident resulted in utter distress not only for h im but also to the whole family. He lodged a claim before the Commissioner Workm an Compensation stating, inter-alia, that he used to earn Rs. 2,500/- per month as his salary and that he was 35 years of age at the time of accident and that h e was entitled to a compensation to the tune of Rs. 3,50,000 from the Opposite p arty of compensation proceeding. The claimant produced a medical certificate but the doctor who examined him or issued the certificate was not examined. The cer tificate merely contained a recital that he sustained loss of 50% income which is corresponding to his level of dis-ability. Learned Commissioner, Workman Comp ensation assessed the compensation at Rs. 1,18,236/- accepting 50% loss of earni ng capacity and directed that the said decree would accrue interest at the rate of 9% per annum w.e.f. the date of accident. While admitting this appeal the following substantial questions of law were framed under section 30 of the Workmen’s Compensation Act, 1923. (cid:28)1. Whether the learned Commissioner could have assessed the loss of earning capacity without examining the registered medical practitioner as a witness 2. Whether the finding of the learned Commissioner, that the claimant incurred loss of earning capacity to the extend to 50% is perverse ? 3. Whether interest could have been imposed 4. Any other question or questions, which on the insurer from the date of accident ? may be allowed to be raised by the Court at the time of hearing of this appeal. (cid:29)
Legal Reasoning
The learned counsel Mr. S. Dutta, argued that the claimant witho ut examining a qualified medical practitioner cannot claim loss of 50% earning c apacity and the Commissioner, Workmen’s Compensation, cannot himself make the as sessment without there being an objective assessment by a competent person. Ref erring to Section 4(1)(c) of the Workmen’s Compensation Act, the learned counsel argued that admittedly the injury of the victim is not specified in schedule ( 1) and as such under Section 4(1)(c)(ii) the percentage of compensation payable in the case of permanent total disablement is proportionate to the loss of ear ning capacity (as assessed by the qualified medical practitioner) (emphasis sup plied). It is the statutory requirement that there has to be assessment by qual ified medical practitioner. The learned counsel argues that when statute provide s that something has to be done in a particular manner, it has to be done only i n that manner and not otherwise. In the case in hand, assessment of qualified m edical practitioner cannot be said to have been done merely on production of the medical certificate. The qualified medical practitioner ought to have been exam ined to prove the methodology of specific assessment and the same could have be en done under the conditions as provided under Section 4(1)(c)(ii). In support o f the said contention the learned counsel has relied on the following judgments :- 1. nother). 2. other). 3. 2012 (4) GLT 718 (Oriental Insurance Co. Ltd., Vs. Paren Narzary and Ano ther) and also an un-reported judgment in MFA No. 512001(United India Insurance 2000 (2) GLT 567 (New India Assurance Co, Limited Vs. Sanjit Kumar and A (2007) 2 SCC 349 (National Insurance Com. Ltd., Vs. Mubasir Ahmed and An C. Ltd., VS. Mr. M. Das and Ors.) In all the aforesaid judgments it has been held that assessment has to be carrie d out by a qualified medical practitioner. It is needless to say that evidence o f the doctor on the point of such assessment is a must. In this view of the matter, it is to be held that assessment made by the learned Commissioner as to loss of earning capacity to the extent of 50% is not based on statutory requirement of evidence of qualified medical practitioner. Having so found, the finding of the learned Commissioner in regard to loss of ea rning capacity cannot be sustained and consequently the substantial question Nos . 1 and 2 of law are replied against the claimant and in favour of the appellant . So far as the imposition of interest is concerned, it is held in the case of National Insurance Company Ltd. Vs. Mubasir Ahmed and another (Supra) that inte rest is to be paid w.e.f. the date of adjudication in any proceeding in an Workm en’s Compensation Act, 1923 arising from accident causing injury to workmen. The logic behind this is that the decision as to liability to pay is taken only aft er adjudication by the appropriate authority and thereafter the question of maki ng payment arises. Unless an adjudication is made the person liable to pay cann ot be held guilty for not paying in time and as such imposition of any interest prior to holding him liable for such payment would have no logical basis. This being the position the substantial question No. 3 is held in favour of the appel lant.
Decision
In the result, the appeal is allowed. The impugned award is set aside and the matter is remanded to the learned Commis sioner, Workmen’s Compensation for deciding the matter afresh by strict complian ce of the provisions of Section 4(1)(c) (ii) of the Workmen’s Compensation Act, 1923. Records be sent back immediately. The parties shall appear before the le arned Commissioner on 16.07.2013. The learned Commissioner shall decide the proceeding expeditiously withi n a period of 3 (three) months thereafter. Let it be recorded here that at the time this appeal was admitted, 50% o f the awarded amount was deposited by the appellant Insurance Company which was received by the claimant. Obviously there shall be set off of this amount from t he compensation amount that may be assessed by the jurisdictional Commissioner.