Patra, J.:— The insurer has filed this appeal under section 30(1) of the Workmen's Compensation Act, 1923 (hereinafter referred to as ‘the Act’) against the order of Assistant Labour Commissioner-cum-Commissioner for Workmen's Compensation, who has awarded a sum of Rs. 39,043.80 as compensation payable to respondent No. 1.
2. While respondent No. 1 was working as a coolie in truck bearing registration No. OAG 364 belonging to respondent No. 2, it met with an accident on 20.2.1992 at about 4 a.m near Khuntuni Indira Gandhi field under Gurudijhatia Police Station and consequently he sustained multiple injuries on his person. The said accident occurred in course of his employment. He was getting Rs. 900/- per month and was aged about 25 years at the time of occurrence. Due to the injuries sustained by him, he became disabled. On this ground he filed an application claiming a compensation of Rs. 70,000/- before the Commissioner.
3. The Commissioner held that the vehicle in question met with the accident and at the time of the accident respondent No. 1 was working as a coolie who sustained bodily injuries. He further held that respondent No. 1 is disabled up to the extent of 40 per cent which is permanent in nature and has lost his earning capacity. He also held that respondent No. 1 was getting P.s 900/- per month as wages and was aged about 25 years at the time of the accident and on that basis he determined compensation at Rs. 39,043.80. As the vehicle in question was insured with the appellant, the Commissioner directed that the entire compensation amount is liable to be paid by the appellant.
4. Proviso to section 30(1) of the Act provides that no appeal shall lie against any order made by the Commissioner unless a substantial question of law is involved in the appeal. When this case was taken up for hearing on 12.7.1994, the learned counsel for the appellant contended that there was no evidence on record that respondent No. 1 was disabled to the extent of 40 per cent and, as such, the compensation determined by the Commissioner is vitiated in law. It was submitted that the doctor who was examined as PW 2 in the case has not opined on the question of disability with reference to the provisions contained in section 4(1)(c)(ii) Explanation II of the Act. Counsel for the respondent No. 1 did not dispute this fact but submitted that the matter should be remanded to the Commissioner for reexamining the doctor on the point. As remand would further protract the litigation, I passed order on 12.7.1994 holding that instead of remanding the case, the doctor should be examined by this court so that necessary particulars could be elicited from him and the matter could be finally disposed of. Accordingly, notice was issued to the doctor who appeared in court on 8.2.1995 He was examined and cross-examined by the counsel for the parties. Certain documents were also exhibited.
5. The doctor as PW 2 earlier had deposed that on 21.7.1992 respondent No. 1 presented himself before him complaining of pain, swelling of left knee and thigh with stiffness along with pain, swelling and stiffness in right wrist. The witness had stated that on examination he found it to be a case of old mal-united supra condylar fracture with post-traumatic synovitis of the left knee and there was shortening of the left lower limb by 3 cm. According to the doctor, due to the stiffness of both the legs and hand, respondent No. 1 was not able to walk properly and squat on the floor and could not do any strenuous nature of job with his right hand and considering the injuries, he assessed the percentage of disability to be 40 per cent which is permanent in nature. Schedule I of the Act catalogues the list of “injuries deemed to result in permanent total disablement and permanent partial disablement”. Admittedly, the injuries sustained by the respondent No. 1 are not found in the said list. The case is thus covered under section 4(1)(c)(ii) Explanation II which provides as follows:
“4. Amount of compensation.—(1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:
(a) xxxxxxxxx
(b) xxxxxxxxx
(c)(i) xxxxxxxxx
(ii) in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury;
Explanation II— In assessing the loss of earning capacity for the purposes of sub-clause (ii), the qualified medical practitioner shall have due regard to the percentage of loss of earning capacity in relation to different injuries specified in Schedule I;”
(Emphasis supplied)
6. It means that the qualified medical practitioner while assessing the loss of earning capacity in case of injuries not specified in the Schedule shall have due regard to the percentage of loss of earning capacity in relation to different injuries specified in Schedule I. The doctor in his evidence dated 8.2.1995 frankly and candidly admitted that the assessment made by him that respondent No. 1 was disabled at 40 per cent which is permanent in nature is not based on the injured's loss of earning capacity. He also admitted that he had not mentioned the details on the basis of which the disability at 40 per cent was assessed and by merely referring to the outdoor tickets and without referring to any prescribed book it is not possible to assess the disability of a person. In view of the aforesaid evidence, the finding recorded by the Commissioner that respondent No. 1 is disabled to the extent of 40 per cent which is permanent in nature is vulnerable. Consequently, the compensation determined by him is vitiated. I accordingly set aside the finding of the Commissioner with regard to the percentage of disability as well as the amount of compensation.
7. However, having regard to the injuries sustained by respondent No. 1, the medical treatment undergone and other relevant considerations, I determine that a consolidated sum of Rs. 15,000/- as compensation is payable to respondent No. 1. The appellant is directed to pay the aforesaid amount of compensation within one month hence failing which the amount shall carry interest at the rate of 12 per cent per annum from the date of application. The appeal is allowed in part.
8. Appeal partly allowed.
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