V. P. MOHAN KUMAR, J.

( 1 ) THE Insurance Company has filed this appeal against the award of compensation by the Workmen's Compensation commissioner with respect to an employment injury suffered by the claimant, namely, fracture of a bone of the leg while he was unloading manure.

( 2 ) THE facts of the case are not in dispute. The worker has suffered a non-schedule injury is also not in dispute. The quantum of compensation payable has been assessed by the commissioner on the basis of assessment made by him relying ex. P-3. The contention of the appellant is that the worker has not produced any Medical Certificate estimating the loss of earning capacity suffered by the claimant, due to the accident. The question therefore raised and argued at length in the appeal is the right of the Adjudicating Authority to assess the quantum of compensation independently under Section 4 (1) (c) (i) of the workmen's Compensation Act, 1923.

( 3 ) THE Counsel for the respondent raised a preliminary objection regarding the maintainability of the appeal. According to him, the essence of the attack made by the appellant, relates to the quantum of compensation awarded and therefore, the insurer is not entitled to challenge the same by filing the appeal. He relied on the decision of this Hon'ble Court in New India assurance Company Limited, Davangere v Raja Naika and another, The reasoning therein is that, the policy of insurance is issued under the Motor Vehicles Act and Section 149 of the said Act restrict the grounds of contention of the insurer in a proceedings claiming compensation. Section 146 of the Act commands that no motor vehicle shall be plied in a public place unless it is insured. Therefore the liability of the insurer has directly arisen out of the Motor Vehicles Act. If the proceedings for compensation are initiated under the Motor Vehicles Act with respect to the liability created under the insurance policy then Section 149 (2) will step in and prevent the insurer from urging any contention other than those mentioned therein. Therefore, it cannot be said that, if proceedings are initiated under the Workmen's Compensation Act, 1923 with respect to the same liability under the very same policy, the insurer has unbriddled right to urge all contentions. The restriction placed by virtue of Section 149 (2) is on the rights of the insurer of the policy referred to under Section 146 and that restriction should apply irrespective of the forum. Hence, the preliminary objection of the learned Counsel for the respondent should be upheld.

( 4 ) BUT, according to the Counsel for the appellant, he submits that the effect of his contention in essence is "compensation or no Compensation". He submits that if his contention that the workmen's Compensation Commissioner ('commissioner' for short) has no independent power to assess the compensation of his own accord, then the award made by him cannot be sustained; the quantum of compensation according to him is only subsidiary. On the contrary, if the Commissioner has independent power so to do, then the award may have to be sustained; the quantum has to be sustained in the light of what is stated in the preceding paragraphs. We will therefore proceed to examine the contention of the appellant keeping this in mind.

( 5 ) THE order impugned herein was passed subsequent to the amendment of Section 4 of the Act in 1984. The accident also took place in 1992. The claim made by the claimant is under section 4 (1) (c) (ii) of the Act. The section reads thus: " (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 I. Where more injuries than one are caused by the same accident, the amount of compensation payable under this head shall be aggregated but not so in any case as to

Click Here to Read the rest of this document