1. This batch of appeal filed under section 30 of the Workmen's Compensation Act, 1923 attracts a common point of adjudication, viz., the manner and methodology of proof of the claim that requires to be adhered by the Commissioner Workmen's Compensation in deciding a claim case, in relation to, non-schedule injury under the Act.
2. The Workmen's Compensation Act, 1923, lays down the nature and extent of liability to pay compensation by an employer in case of a workman having received injuries by accident arising out of and in course of employment which is also liable to be indemnified by the related insurance company which covers the risk of liability under section 3 of the Act.
Section 4 of the Act provides procedure and methodology of the assessment of compensation claimed under the Act. In this appeals we are concerned with the assessment which is coverable under section 4(1)(c)(ii), contained in Explanation II of the Act.
For our ready reference Explanation II is quoted herein below:—
Where the monthly wages of a workman exceed 3 (four thousand rupees), his monthly wages for the purposes of clause (a) and clause (b) shall be deemed to be 3 (four thousand rupees), only;
(c) Where permanent partial disablement result from the injury
(i) in the case of an injury specified in Part II of Schedule 1, such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury; and
(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;”
“In assessing the loss of earning capacity for the purpose of sub-clause (ii), the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in relation to different injuries specified in Schedule I;”
3. In this batch of cases the common allegation is that the impugned awards have been passed without following the procedure prescribed under the provisions of section 4(1)(c).
4. I have heard Mr. S. Dutta, learned counsel for the appellant. The learned senior counsel, Mr. S.S Sharma and the other learned counsels for the appellants have also made submission on the same line. Mr. S. Dutta in support of his contention has placed reliance on the following decisions.
1. Ajit Kumar Pukan v. State of Assam, (2000) 2 GLT 571.
2. FAO/15 of 1999 (Oriental Insurance Co. Ltd. v. Sri Digen Kalita) decided on 17.8.2006 Also heard learned counsels for the claimant/respondent who appeared in this batch of cases.
5. In all these cases, a qualified medical practitioner was not examined to assess the percentage of compensation payable to the claimant whose evidence is essential for unfolding proportionate loss of earning capacity of the workmen as a result of the accident.
6. In order to assess the percentage of loss of earning capacity so far as the injuries as mentioned in Schedule (1) of the Act is concerned, the Commissioner of the Workmen's Compensation has no discretion and on proof of such injury, the necessary percentage of loss has to be fixed under the said Schedule and is to be applied. But, so far, as the injuries sustained by a workman by an accident arising out of and in course of his employment which is not mentioned in the said Schedule. The methodology for assessment of the proportionate loss of earning capacity commensurating to the percentage of disablement is to be assessed as per the assessment made by a qualified medical practitioner. Thus, the examination by the qualified medical practitioner is the statutory requirement under the provisions of section 4(1)(c)(ii). In this batch of cases, the Commissioner did not examine a qualified medical practitioner and in support of the claim of the workmen and to assess the proportionate loss of earning capacity the Legislature has thought it fit that in order to assess such loss it should be made by a qualified medical practitioner, that is the requirement of the statute. The Commissioner of the Workmen's Compensation is to order for compensation as per the mandate of the Act. It is also the principle of law that an act is to be done in the manner provided by the statute in this batch of cases also the Commissioner has no other alternative. In some of the cases, I find that the certificate said to be submitted by the workman himself was accepted and on that basis the learned Commissioner proceeded to assess the compensation. But the mandate of the Legislature as noted above is otherwise and the Commissioner is to exercise such statutory power/and duty as mandated under the Act.
In this connection the decisions rendered in Ajit Kumar (supra) as referred by Mr. Dutta is squarely applicable.
Similar other decisions which is passed in Ajit Kumar (supra) also holds the field.
7. In view of the aforesaid principles of law as emanated from the statute and failure of the learned Commissioner to apply the same, assessment was made in the aforesaid cases fixing the extent of liability upon the employer, to be indemnified by the related Insurance Company cannot be sustained.
8. The learned Commissioners decided the respective cases by adopting a procedure de hors the law.
9. In view of the aforesaid discussion the impugned judgments and awards passed in the aforesaid appeals are not sustainable in law and these are hereby set aside and quashed.
10. All the cases are remanded back to the court of the respective Commissioner of Workmen's Compensation, who shall pass an appropriate fresh award by taking necessary evidence of a qualified medical practitioner required under the law as indicated herein above. The cases shall be disposed of as expeditiously as possible after giving opportunities to the parties.
11. The parties are directed to appear before the learned Commissioners on 1.12.2006 and on such appearance the cases shall be processed and proceeded as expeditiously as possible. Registry is directed to send back the connected records to the respective Commissioners forthwith.
12. The appeals are allowed as indicated above.