Judgment · High Court

Mr. A. Ahmed, learned counsel appearing for the appellant has pointed out that t he learned Commissioner has returned a finding in the following terms: (cid:28)The intensity of the injuries sustained by the petitioner due to the aforesaid motor vehicular accident have been thoroughly physically verified by me in pres ence of the learned Advocates for both the parties in the proceeding and the ba ck bone of the Medical Certificate issued by the Senior Health and Medical Offic er, Dhubri Civil Hospital, Dhubri has also been thoroughly verified by me by whi ch the qualified medical practitioner has certified that the petitioner sustaine d grievous injuries including fracture of the both bone of right leg due to the aforesaid road traffic accident and has given his opinion that the injuries sus tained by the petitioner are grievous in nature lacerated by blunt object and fr esh and the injuries may cause pain to have some residual permanent disability t o his right limb, hence the injuries sustained by the petitioner are treated as permanent partial disablement. The nature of injuries sustained by the petitio ner are found no petitioner lace in the any schedule of the Workmen’s Compensat ion Act, 1923, but the injuries sustained by the petitioner is a fact. It has be en appeared from the medical report issued by the qualified medical practitioner as well as from the evidence on records that the right leg of the petitioner fr actured and he can not walk fast due to limping. The percentage of disability is not available in the medical report. Considering the documentary as well as ora l evidence on record and taking lenient view, this court is satisfied to determi ne the total loss of petitioner percentage of earning capacity of the petitioner to the extent of 30% for the grievous injuries including fracture sustained by the petitioner due to the aforesaid motor vehicular accident arising out of and in course of the employment under the O.P No. 2 on 20-07-2000. (cid:29) It further appears that learned Commissioner has waived the necessity of opinion of the qualified doctor for the purpose of ascertaining the extent of the permanent partial disability as per provision of Section 4(1)(c)(ii) read wi th Explanation-II of the Workmen’s Compensation Act, 1923 which postulates that in assessing the loss of earning capacity for the purposes of sub-clause (ii), t he qualified medical practitioner shall have due regard to the percentages of lo ss of earning capacity in relation to different injuries specified in Schedule I . Therefore, Mr. Ahmed, learned counsel has correctly stated that this part cann ot be waived because it is the mandate of the statute in categorical terms. In view of the above, this case is remanded back to the Commissioner, Wo rkmen’s Compensation only for ascertaining the extent of the permanent partial d isablement vis-à-vis loss of earning of the workman. The Commissioner, Workmen’s Compensation is directed to take assistance of the qualified medical practition er for ascertaining permanent partial disablement on examination of the workman. The qualified doctor shall also examine the medical records of the workman. The Commissioner is further directed to assess the loss of earning in view of expla nation - II attached Section 4(1)(c)(ii) of the Workmen’s Compensation Act, 1923 and quantify the compensation accordingly. It is made clear that the Commissioner, Workmen’s Compensation is not ca lled upon to re-open any other aspects of finding of the judgment. The entire ex ercise shall be completed by the Commissioner, Workmen’s Compensation within the period of three months from the date of receipt of the records from this Court. Further that, it would be the duty of the Commissioner to summon a quali fied medical practitioner for the purpose of this exercise. The award, if made a s per this judgment, the Commissioner, Workmen’s Compensation shall deduct Rs. 2 5,000/-, which has already been received by the workman, therefrom. Needless to say, the Commissioner shall issue notice to the parties befo re re-commencing the proceeding. With this observation and direction, this appeal is allowed partially to the extent indicated above. Send down the LCRs forthwith along with a copy of this order. There shall be no order as to costs.