G.C De, J.:— National Insurance Company Limited (hereinafter referred to as ‘the insurer’) filed this appeal under section 30 of the Workmen's Compensation Act, 1923 challenging the judgment and order dated 30.1.1997 passed by the Commissioner, Workmen's Compensation, West Bengal, Second Court in Claim Case No. 529 of 1995.

2. The applicant respondent No. 1, Bhim Dey @ Bhola Dey filed the claim case claiming a compensation of Rs. 1,03,990/- alleging that in course of his employment on 2.11.84 as a khalasl, in Vehicle No. WB-11 0495 belonging to the respondent No. 2, M/s. Vedant Automobilles (P) Limited, he sustained injuries on his waste, back and right leg as the vehicle on its way to Haringhata near Jagulia, within P.S Haringhata dashed against a road-side tree. Initially, he was treated at Kalyanl Hospital for two days and thereafter, he was treated at Howrah General Hospital as an indoor patient for about three months and subsequently, he was also treated as an outdoor patient for another three months in the same hospital. As a result of the accident, he was not in a position to move without the help of a pair of crutch. The claimant was examined by a doctor who issued a certificate to the effect that the claimant sustained permanent total disablement of hundred percent. At the relevant time the claimant was getting a salary of Rs. 1500/- per month and he was aged 30 years. The appellant, National Insurance Company Limited was the insurer of the vehicle at the relevant time and hence, the claim was made against the owner as well as the insurer of the said vehicle.

3. The owner of the vehicle (respondent No. 2) appeared and filed a written statement admitting the accident and employment of the victim as a khalasi of the vehicle in question and contended that the claimant was earning Rs. 1400/- per month as wages.

4. The insurer also filed a written statement challenging the employment of the victim as a khalasi in the offending vehicle, his age, monthly Income and extent of injury. However, the insurance coverage of the offending vehicle at the relevant time was not specifically denied.

5. On the basis of the respective pleadings, the learned Commissioner framed the following three issues:

“Issue No. 1: Has the applicant sustained any permanent partial disablement involving loss of earning capacity? If so, to what extent?

Issue No. 2: What was the age and rate of monthly wages of the applicant?

Issue No. 3: Who is liable to pay compensation?

6. The claimant examined himself as P.W 1 and Dr. M.N Parbat as the P.W 2 and no witness was examined by the opposite parties. The learned Commissioner, without assessing the loss of earning capacity of the claimant, came to a conclusion that the issue No. 1 is to be decided in favour of the claimant and accordingly, decided the same issue. The learned Commissioner also, relying on the evidence of the claimant, came to a conclusion that he was aged 30 years at the relevant time and was earning Rs. 1500/- per month as wages and decided the issue No. 2 accordingly. Since the vehicle was covered by a policy of insurance issued by the insurer from 7.7.1994 to 6.7.1995 and the accident took place on 2.11.1994, the issue No. 3 was decided against the insurer with the finding that the insurer was to indemnify the owner of the vehicle. Thereafter the learned Commissioner, on the basis of findings in issue Nos. 1, 2 and 3 came to a conclusion that the claimant is entitled to get compensation on the basis of one hundred percent loss of earning capacity and fixed Rs. 1,03,990/- as the Just compensation which was directed to be paid within two months with a simple interest @ 6% per annum from the date of the judgment.

7. In course of hearing of this appeal, the claimant respondent No. 1 appeared. But the owner of the vehicle, namely the respondent No. 2, did not appear and contest.

8. Mr. Krishanu Banik appearing on behalf of the claimant raised a preliminary objection to the effect that as to substantial question of law is involved in this appeal, the appeal is to be dismissed within the meaning of First proviso to section 30(1) of the Workmen's Compensation Act, 1923. It is also contended that the plea raised by the appellant to the effect that the claimant did not suffer any Injury in the accident making him permanently disabled and consequently, one hundred percent loss in earning capacity being raised for the first time in this appeal, such new plea cannot be taken at the appellate stage. On this score, he relied on a Single Bench decision of the Karnataka High Court reported in 1983 TAC 419 (S. Chinnaswami v. Periaswamy). He also relied on another single Bench decision, of Punjab & Haryana High Court reported in 1 (2000) ACC 17 (Rattan Singh… v. Haryana State Electricity Board…). Reliance was also placed on another single Bench decision of Karnataka High Court reported in 1998 ACJ 179 (M/S Oriental Insurance Co. Ltd. v. Vasantha Pitambar & Anr.*). On this score, the learned counsel further argued that extent of disability being a question of fact, it cannot be treated as a substantial question of law. On the question of new plea taken in appeal, reliance was placed in a Judgment of Andhra Pradesh High Court reported in 1996 ACJ 627 (Janatha Modern Rice Mills v. Satyanarayana). Reliance was also placed on another decision of Patna High Court reported in AIR 1967 Patna 249 (Rawal Das Nichal Das… v. Jagarnath Ekka….). In support of the contention that no new plea can be taken in appeal, reliance was placed in a decision of Rajasthan High Court reported in 1991 ACJ 74 (United India Insurance Co. Ltd. v. Roop Kanwar).

9. Finally, the learned counsel for the respondent No. 1 also placed reliance on a Division Bench Judgment of this Court reported in 1999 (II) CHN 226 (National Insurance Co. Ltd. v. Susanta Das) in support of the contention that when the learned Commissioner rightly relied on the evidence of a doctor and passed the award relying on the uncontroverted evidence adduced on behalf of the claimant, there is no scope of Interference in appeal.

10. Mr. K.K Das, the learned counsel for the appellant, on the other hand, placing reliance on a Division Bench Judgment of this Court reported in 2000 (1) TAC 117 (Cal) [New India Assurance Co. Ltd. v. Bishwanath Das] contended that the learned Commissioner failed to appreciate the provisions introduced in the Act by the Amendment Act 22 of 1984 and accordingly, failed to consider that the allegedly recognised medical practitioner did not give any assessment with regard to the loss of earning capacity of the claimant. The learned counsel further pointed out that the medical certificate issued by Dr. M.N Parbat and the evidence adduced by the doctor has not stated anything about the loss of earning capacity and hence, the finding of the learned Commissioner is opposed to law and as such, this forms a substantial question of law for a proper decision in this appeal.

11. After a careful scrutiny of the provisions of the Amendment Act 22 of 1984, we come to a conclusion that the only substantial question of law which arises for consideration in this appeal is as to whether compensation has to be granted taking into consideration the provisions of Part I of the First Schedule read with section 2(1) and section 4(1) of the Workmen's Compensation Act, 1923.

12. At the very outset, it is to be noted from the materials on record that the employment of the claimant and consequent sustaining of injuries have been proved and the findings of the learned Commissioner on the facts namely the sustaining of injuries by the claimant in course of his employment, his age and the monthly income are not open for discussion in this appeal as all those findings are on the issues of fact. But it is to be noted from the impugned judgment that the learned Commissioner did not find out the percentage of loss of earning capacity of the claimant as is required under section 4(1) of the Act. By the Amendment Act 22 of 1984 which came into force on 1st July 1984, a specific provision has been introduced for assessment of loss of earning capacity of the workman by a qualified medical practitioner. The Division Bench of this Court in New India Assurance Co. Ltd. v. Bishwanath Das (supra) analysing this point came to a conclusion that in view of the amended provision of the Act, the loss of earning capacity of the appellant workman should be assessed by a qualified medical practitioner. After a careful scrutiny of the evidence adduced by the doctor in this case, we come to a conclusion that the medical practitioner failed to assess the loss of earning capacity in this case as required by the Act as it stands after the Amendment Act.

13. True it is that the decision of the single Judge of Andhra Pradesh High Court in New India Assurance Co. Ltd. v. Smmayya @ M. Shankar reported in 1997 ACJ 185 : 1996 (1) TAC 237 was relied upon by the Division Bench in the above cited case of Bishwanath Das (supra). The same decision also fell for consideration before the Division Bench of this Court in National Insurance Co. Ltd. v. Susanta Das (supra) and Their Lordships came to a conclusion that the decision in Smmayya's case (supra) was not applicable in the case where the doctor gave an evidence that the claimant suffered one hundred percent loss of earning capacity. In paragraph 13 of their decision, Their Lordships also viewed that unless there is any evidence as regards actual loss of earning capacity, the Commissioner was not competent to assess the loss of earning capacity of the workman. From the above discussions, it would be noticed that two separate Division Bench of this Hon'ble Court practically ratified the findings in Summayya's case and thereby came to a conclusion that for the purpose of calculating the compensation, it is incumbent upon the learned Commissioner to assess actual loss of earning capacity. While respectfully agreeing with the findings of two Benches of this Court, we come to a conclusion that before passing any order of compensation it is incumbent upon the Commissioner to assess the actual loss of earning capacity on the basis of the evidence required under section 2(1) and section 4(1) of the Act. Since in this case the qualified medical practitioner did not assess the actual loss of the earning capacity of the claimant, the learned Commissioner failed to arrive at a Just conclusion. Or in other words, the compensation as assessed by the learned Commissioner being opposed to law is not acceptable and It is liable to be set aside.

14. With regard to the question of new plea taken in this appeal and the argument that the extent of disability is a question of fact as argued by the learned counsel for the respondent No. 1 and the decisions cited by him, it is to be mentioned that in those cited decisions the effect of the Amendment Act 22 of 1984 were not taken into consideration, and hence the principles adopted in those cases are not applicable in this case. The assessment of actual loss of earning capacity being a prime consideration in a case of this nature as introduced by the Amendment Act, it has taken a shape of substantial question of law which cannot be ignored or overlooked. When the statute commands the learned commissioner, who is an Adjudicatory Authority under the Act, to exercise his power in a particular manner and subject to certain conditions statutorily laid, the learned Commissioner is statutorily bound to follow the same and if there is any departure from the prescribed procedure or violation of condition, then it is to be construed that the learned Commissioner has committed an illegality. So the point raised in this appeal cannot be construed as a question of fact.

15. In this connexion, it is also to be noted from the written statement filed by the insurer that from the very beginning they challenged the actual loss of earning capacity of the claimant for which an issue was also framed. But a scrutiny of the impugned judgment indicates that the said issue was not properly decided and there is no basis for a conclusion to the effect that there was actual loss of earning capacity of the claimant to the extent of one hundred percent. Moreover, the question raised by the insurer is not at all a new plea taken in this appeal. For these reasons also, we are of the opinion that the judgment under appeal cannot be sustained.

16. The appeal is accordingly allowed. The Judgment and order of the learned Commissioner are hereby set aside. The proceedings are remanded to the learned Commissioner, Workmen's Compensation, second Court, West Bengal with a direction to consider the claim of the claimant respondent No. 1 afresh strictly in accordance with the provisions of the Act and the Rules framed therein, after affording an opportunity to the parties to adduce further evidence, at an early date and preferably within a period of three months from the date of communication of this order.

17. Since the matter is pending for long and we have not interfered with the finding of the learned Commissioner as regards sustaining of injury in course of employment, we deem It proper to order that out of the amount deposited, the learned Commissioner shall allow the claimant respondent No. 1 to withdraw 50% of the amount without prejudice to the rights and contentions of the parties. The balance amount, however, be invested in a short term fixed deposit in any nationalised bank as a deposit till the final disposal of this case and the interest accruing thereupon shall enure to the benefit of the successful party.

S. Banerjea, J.:— I agree.

Later

Urgent certified xerox copy of this judgment and order, If applied for, be granted as expeditiously as possible.

Appeal allowed

R.B