Judgment · High Court · 2012

J. Sarmah (the PW-2). Mr. Goswam i learned counsel for the appellant has referred in particular to the cross-exam ination. For purpose of appreciation, the said part is reproduced herein: (cid:28)The injuries of the said person may be healed within two months or it may take six months or so. The person shall be able to earn his bread by doing this or th at job. The amount of earning inability that I have certified may also gradually come down in course of time. In my opinion, because of the fractural injury men tioned in Ext. 2, doing the service of handyman in a vehicle may be somewhat haz ardous for Shri Prahlad Saikia. I did not consult the rules or provision of W.C Act when I issued Ext. 3 (certified of physical disability) in favour of Shri Pr ahalad Saikia. There is no any yardstick to scale or measure the amount of physi cal disability. I gave Ext. 3 to the patient only after I had clinically examine d him.

Some better treatment may change the condition of his physical disability of the earning capacity of the said patient. (cid:29) [6] Mr. Goswami, learned counsel referring to the explanation as put below Section 4(1)(c)(ii) of the Workmen’s Compensation Act, 1923 submitted tha t the qualified medical practitioner as defined in Section 2(h)(i) of the Workme n’s Compensation Act, 1923 has the statutory duty to determine the loss of earni ng capacity or the physical capacity having regard to the injuries at the schedu le-I as appended to the Workmen’s Compensation Act. But the PW-2 has categorical ly admitted that he has not considered that aspect of the matter. [7] In support of his contention, Mr. Goswami has referred a decisio n of this Court in National Insurance Company Ltd. Vrs. Bimal Nath and Others, a s reported in 2009 (1) GLT 370. In para-24 of the said decision this Court held as under: (cid:28)(24) From the aforesaid discussions, it is, therefore, clear that while assessi ng the compensation u/s 4(1)(c) (ii) what the learned Commissioner, is required to find out is whether such disablement is of a permanent nature which reduces t he earning capacity of the workman in every employment which he was capable of undertaking and not merely the particular employment in which the was engaged at the time of accident.

For instance, if a Driver claims compensation contending that he suffers disablement of permanent nature, because of the injuries sustain ed by him, on his hands or leg, what is to be seen by the commissioner is whethe r such disablement reduces his earning capacity as Driver or reduces his earning capacity in any other employment which he was capable of undertaking, earning c apacity is obviously on the workman who claims the benefit of the Act. If the Co mmissioner finds that though the workman who claims the benefit of the Act. If the Commissioner finds that though the workman’s earning capacity has been reduc ed in the employment in which he was engaged at the time of accident but has not been reduced in respect of other employment, which he was capable of undertakin g at the time of accident, depending on the skill, the compensation cannot be as sessed u/s 4(1)(c)(ii) of the Act. In that event, the compensation has to be ass essed u/s 4(1)(d) of the Act.

The workman, however, by adducing acceptable evide nce, can establish that because of the injury his earning capacity has not only been reduced in respect of the work which he was performing before the accident but also in respect of any other employment, depending on his skill and also the skill required for other works, which he was capable of undertaking at that tim e, in which event it would amount to ’permanent partial disablement’, provided t he disablement is of a permanent nature. (cid:29) [8] Mr. Goswami has further contended that even the PW-2 did mention nothing regarding the loss of earning capacity in his certificate, the Ext. 2 d ocument. Therefore, the said observation of the Commissioner, Workmen’s Compensa tion is entirely fanciful and without any foundation whatsoever. Such observatio n for assessing the compensation cannot be allowed to stay. The impugned judgmen t and award requires stern interference by this Court. [9] Refuting the robust build-up as laid by Mr.

Goswami, learned cou nsel, Mr. S.K. Barkataki, learned counsel appearing for the respondent-workman s ubmitted that the opinion of the medical qualified practitioner cannot be brushe d aside so lightly. In support of his contention he referred a decision as rende red by this Court in New India Assurance Co. Ltd. Vrs. Sanjit Kumar and Another, reported in 2000(3) GLJ 96 where the view of the learned counsel appearing for the appellant has been acceded to by this Court. Since that view had root in the decision of the Apex Court in Divisional Manager, United India Insurance Co. L td. Vrs. Bhagaban Das & another, as reported in 1998 (1) TAC 558 the view of the appellant had been acceded to by this Court: (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 assess the loss of earning cap acity in his guess work but the nature of injuries, the percentage of physical d isability, the capacity of the injured to perform the nature of work with specif ic reference to the type of work he is engaged in and several other such factors to come to a finding with regard to the loss of earning capacity. In that view of the matter, in absence of the evidence of the doctor in that regard it is not permissible for the Court to find out only from the evidence of physical disabi lity to the extent of loss of earning capacity. The Commissioner, Workmen’s Comp ensation in the present case at hand having assessed the loss, without any speci fic evidence of the doctor, as required under law, the award/judgment is not sus tainable in law. (cid:29) [10] These decisions as referred by Mr. Goswami and Mr. Barkataki are not in conflict.

From these two decisions namely, Bimal Nath (supra) and Sanjit Kumar and Another(supra) it transpires that the duty of a qualified medical pra ctitioner fundamentally rests upon two elements: (1) the qualified medical pract itioner has to determine the nature of permanent disablement having regards to t he injuries as incorporated in the schedule-I of the Workmen’s Compensation Act, 1923 and (2) while assessing the loss of earning capacity, he has to look into the various factors viz. whether the workmen has been completely disabled for pu rpose of occupation or other occupation or whether the disablement as suffered b y the workmen reduced his earning capacity and in that case he has to find perce ntage of such reduction so as to enable the Commissioner, Workmen’s Compensation to assess the just compensation in terms of the provision of Workmen’s Compensa tion Act, 1923. Unless this definite opinion is provided by the qualified medica l practitioner, the assessment of compensation for the injury as received by the workmen has to be visited by unwelcome conjecture. [11] In the case in hand, Dr.

J. Sarmah is no doubt a qualified medic al practitioner, but he has not given any definite opinion either in respect of the disability or as regards the loss of earning capacity for such disablement. Moreover, his opinion is manifestly casual in nature. The injury he found to be of temporary in nature and after a considerable period even the injured workman may get the full recovery. There is no scope for assumption so far the opinion o f the qualified medical practitioner is concerned. The opinion must be very defi nite, having regard to the schedule I of the Workmen’s Compensation. [12] In this view of the matter, this Court is of the opinion that th is is a case where the qualified medical practitioner is required to be re-exami ned by the Commissioner, Workmen’s Compensation for having the definite opinion as indicated above for the purpose of assessing the compensation for the injured workman. [13] Accordingly, this case is remitted back to the Commissioner, Wor kmen’s Compensation for re-examination of the qualified medical practitioner by the Commissioner, Workmen’s Compensation.

Immediately after receipt of the LCRS from this Court the Commissioner shall notify the PW-2 to appear before him on t he appointed day for the said purpose of re-examination. Even the Commissioner, Workmen’s Compensation may ask to review the opinion as has been rendered by the PW-2. The Commissioner, Workmen’s Compensation shall take his opinion as regard s the nature of his disablement and the loss of earning capacity in tune with th e schedule I of the Workmen Compensation Act, 1923 and after hearing the definit e opinion the Commissioner, Workmen’s Compensation shall re-draw the compensatio n afresh and dispose the claim in accordance with law. [14] llowed to the extent as indicated above. With this observation and direction, this appeal stands partly a [15] There shall be no order as to costs. Send down the LCRs forthwith.