Oriental Insurance Company Ltd. v. Commissioner Workmen’s Compensation, Guwahati

This is an appeal by Oriental Insurance Company Ltd. under Secti on 30(1)(c)(ii) of Workmen’s Compensation Act, 1923 against the judgment and awa rd dated 10.02.2003 passed by the Commissioner Workmen’s Compensation, Guwahati in W.C Case No.88 of 2002. 2. At the time of admission no substantial question of law was form ulated as required for consideration of an appeal filed under Section 30(1)(c)(i i) of Workmen’s Act, 1923. It appears that a substantial question of law has bee n suggested by the appellant separately. On examination of the records and on co nsent of the learned counsel for the parties the following substantial question of law is proposed to be decided in the appeal : Whether the Commissioner Workmen’s Compensation was correct in determini ng the compensation under Section 4(1)(c)(ii) of the Compensation Act, 1923?

3. Mr. A. Ahmed, learned counsel appearing for the appellant submitted that the medical report that has been relied by the claimant (the injured workman) w hich was issued before expiry of the period of the temporary disablement which h as been defined in Section 2(1)(g) of the Workmen’s’ Compensation Act, 1923. Mr. A. Ahmed, learned counsel for the appellant further submitted that no docum entary evidence has been produced by the workman to show that the he was in the employment under the respondent No.2, the owner of the vehicle bearing registrat ion No. AS-25/7979(Bus). He further contended that except the solitary statement of the workman that there is no other material to substantiate the wages that h as been claimed. Ultimately Mr. A. Ahmed, learned counsel for the appellant ques tioned the opinion of the P.W-2, the qualified medical practitioner, who assesse d the nature of the disablement the claimant sustained in the accident and the c orresponding loss of earning capacity within the meaning of Workmen’s Compensati on Act, 1923. According to Mr. A. Ahmed, learned counsel for the appellant, the said medical practitioner practicing in the branch of Medicines, not in the Orth opaedics and as such his opinion carries very little value in determining the di sability. The Commissioner, Workmen’s Compensation has committed serious illegal ity on relying on the opinion of the said PW-2. He continued to submit that the re must be a basis for assessment of loss of earning capacity and it cannot be e ntirely on the guess work. The loss of earning capacity has to be determined on the opinion of the qualified medical practitioner when his opinion is based on t he injuries specified in the Schedule-I appended to the Workmen’s Compensation A ct, 1923. Mr. A. Ahmed, learned counsel for the appellant submitted that in asse ssing the loss of earning capacity within the meaning of sub-clause (ii) of Sect ion 4(i)(c) of the Workmen’s Compensation Act, the qualified medical practitione r shall have to determine the percentage of loss of earning capacity in relation to the different injuries specified in the Schedule-I appended to the W.C. Act. But in this case, according to Mr. A. Ahmed, learned counsel for the appellant, the said exercise is wholly missing and therefore, the impugned judgment and aw ard require interference. 4. On the other hand, Mr. D.K. Saikia, learned counsel for the resp ondents submitted that the qualified medical practitioner has been defined in Se ction 2(i) of the W.C. Act, 1923 which provides that (cid:28) ’the qualified medical pr actitioner’ means any person registered under any [Central Act, Provincial Act o r an Act of the Legislature of a State] providing for the maintenance of a regis ter of medical practitioners, or, in any are where no such last-mentioned Act is in force, any person declared by the State Government, by notification in the O fficial Gazette, to be a qualified medical practitioner for the purposes of this Act. (cid:29) , The appellant nowhere disputed the said qualification of the PW- 5. 2. He cannot raise objection to the qualification of the PW-2 at the appellate s tage without any evidence. Apart that, he quite candidly supported that the dete rmination of the loss of earning capacity as that has been made having abreast o f the injuries mentioned in the Schedule-I of the Workmen’s Compensation Act, 19 23, even though no express reference has been reflected. While refuting such sub mission Mr. A. Ahmed, learned counsel also referred a decision of the Orissa Hig h Court in C. David v. Govind Chandra Mishra and Another as reported in 1997(1) T.A.C. 873 (Orissa) where it has been held that : (cid:29)8. , the Court has to see whether the earning capacity of the injured has been redu ced in every employment and not merely in particular employment in which he was engaged at the time of the accident. That is the reason why Section 4(1)(c) (ii) , Explanation-II of the Act mandates that in case of non-schedule injury the qua lified medical practitioner while assessing the loss of earning capacity shall h ave due regard to the percentage of loss of earning capacity in relation to diff erent injuries specified in Schedule-I. (cid:29) In the premises stated above, we state that while assessing compensation On bare perusal of Section 4(1)(c)(ii) of the Workmen’s Compensation Act He further relied on a decision of this Court in Oriental Insurance Comp any Ltd. v. Biswajit Deb & Anr. as reported in (2012) (3) GLT 458 where this Co urt held as under : (cid:28)16. , it is clear that in the case of injuries not specified in the schedule, percen tage of compensation payable in the case of disablement is as proportionate to t he loss of earning capacity (as assessed by qualified medical practitioners) per manently caused by the injury. The medical practitioners, therefore have to asse ss the percentage of loss of earning capacity which will be proportionate to the percentage of disablement permanently caused by the injuries. The word ’proport ionate’ mentioned in Section 4(1)(c) (ii) plays a very significant role. It appe ars that percentage of permanent disablement cannot be equated with the loss of earning capacity in all cases inasmuch as Section 4(1)(c) (ii) only states that the percentage of disablement is as proportionate to the percentage of loss of e arning capacity. (cid:29)

6. On consideration of the rival contentions as advanced by the cou nsel of the parties as well as on scrutiny of the records, this Court finds that the owner of the vehicle (the respondent No.2) did not file any written stateme nt on disputing or denying the claim of the claimant-respondent No.1 that he was under employment of the respondent No.2 and as such it has to be deemed to have been admitted by the employer that the workman was under his employment and was having the wages of Rs.4,000/- per month. From the Exbt. 6(1), the Disability C ertificate as issued by the PW-2, Dr. S.C. Sharma, it appears that disability wa s assessed at 55% considering the nature of the injuries that the claimant respo ndent No.1 suffered in the said accident. According to the qualified medical pra ctitioner (PW-2) the deformity is permanent partial disablement. In the cross-e xamination, the appellant did not raise any question regarding the qualification of the doctor. As such in absence of the materials to show that a Medical Offic er who is employed in a Government hospital, namely Barpeta Civil Hospital canno t be treated to be the qualified medical practitioner in terms of the Workmen’s Compensation Act, 1923. But at the same time, submission of Mr. A. Ahmed, learne d counsel appearing for the appellant has found certain nourishment from the sta tements made in the cross-examination by the PW-2 where the medical practitioner stated that (cid:28)I did not make any assessment and it is assessed at my guess work. The said statement however, does not have any meaning if it is considered in th e context of the entire statement. He categorically stated in the examination-in -chief that the injuries have caused permanent partial disablement. He categoric ally denied the suggestion that the claimant-respondent No.1 would not find any difficulty in doing the job of the handyman. The PW-2 categorically stated that for the injuries the respondent No.1 shall continue to find difficulty in bendin g and walking. On the basis of that, he assessed the loss of earning capacity a t 45% against the disability as ascertained at 55%. Nowhere, it has been suggest ed by the appellant that the qualified medical practitioner did not assess the l oss of income without taking into consideration of the injuries at Schedule-I ap pended to the Workmen’s Compensation Act, 1923. 7. In National Insurance Company Ltd. v. Mubasir Ahmed & Anr. (2007 ) 2 SCC 349 the apex Court held in reference to the Section 4(1) (c) (ii) Explan ation-II appended thereunder that (cid:28)these cases related to injuries which were no t specified in Schedule I and as such cases are covered by Section 4(1)(c)(ii) E xplanation. In terms of Explanation-II the qualified medical practitioner has to assess loss of earning capacity having due regard to percentage of loss of earn ing capacity in relation to the different injuries in Schedule I. Explanation I also provides that where there are more than one injuries, the aggregate has to be taken, so that the amount which would be payable for permanent total disablem ent is not exceeded. (cid:29)

8. After considering the oral testimony of the PW-1 & 2 and Exbt.6( 1) document, this Court is of the opinion that there is no infirmity in the find ings of the Commissioner of Workmen’s Compensation and as such it is held that t here is no substantial question of law involved in this appeal. As consequence t hereof, this appeal stands dismissed. 9. The appellant is directed to pay the entire awarded sum with an interest @ 7.5% per annum from the date of filing the claim till the date of the impugned judgment and award i.e. 10.02.2003 and thereafter with interest @ 12% per annum till the payment is made. 10. Send down the LCRs forthwith.