The assessment of disability under the Workmen Compensation Act must adhere strictly to statutory provisions, limiting discretion in establishing percentage of disability and wage calculations.

JUDGMENT :

HEMANT M. PRACHCHHAK, J.

1. Present appeal is filed by the appellant - insurance company under Section 30 of the Workmen Compensation Act, 1923 (hereinafter be referred to as “the Act”) challenging the impugned judgment and order dated 27.11.2013 passed by the learned Workmen Compensation Commissioner, Labour Court, Bhavnagar in Workmen Compensation (Non-Fatal) Case No.5 of 2009 whereby the learned Commissioner has allowed the claim petition filed by the claimant and awarded the compensation of Rs.4,34,650/- along with the penalty and interest.

2. Being aggrieved and dissatisfied with the impugned judgment and order of the learned Commissioner, the present first appeal is filed by the appellant – insurance company on the grounds that learned Commissioner has committed an error in assessing the percentage of disability though in the medical certificate the disability was shown at 60%, whereas, the learned Commissioner has considered the disability at 80% and also committed an error in awarding penalty.

3. Heard Mr.K. V. Gadhia, learned counsel appearing for the appellant – insurance company, Mr.Hardik Soni, learned counsel appearing for respondent No.1 – claimant and Mr.Harshadrai Dave, learned counsel for Mr.P. H. Buch, learned counsel appearing for respondent No.2 – insurer at length.

4. Mr.Gadhia, learned counsel appearing for the appellant has submitted the same facts which are narrated in the memo of appeal and has submitted that the learned Commissioner has exceeded his jurisdiction which is not vested with him and committed an error in assessing the disability at 80%, whereas, the disability was shown in the medical certificate at 60%. He has submitted that the learned Commissioner has considered the income of the claimant on higher side, though as per the register produced before the learned Commissioner the workman was receiving Rs.115/- per day, who was working as machine operator sustained injury in the nature that the claimant’s right hand was amputated from below wrist and considered the income at Rs.4000/- per month which is not just and proper. He has submitted that the learned Commissioner has committed serious error of law and facts in awarding 9% interest and the liability was fastened upon the appellant instead of original employer. Mr.Gadhia, learned counsel has referred to and relied upon Sections 4 read with Section 5 of the Act which provides the method of calculating the wages. Section 4 and Section 5 of the Act reads as under:-

“4. Amount of compensation. -

(1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:-

(a) where death results fromAn amount equal to [fifty per the injury cent.] of the monthly wages of the deceased [employee] multiplied by the relevant factor:

or an amount of [one lakh and twenty thousand rupees], whichever is more;

(b) where permanent totalAn amount equal to [sixty disablement results from theper cent.] of the monthly injury wages of the injured [employee] multiplied by the relevant factor;

or an amount of [one lakh and forty thousand rupees], whichever is more:

Provided that the Central Government may, by notification in the Official Gazette, from time to time, enhance the amount of compensation mentioned in clauses (a) and (b).

Explanation I. - For the purposes of clause (a) and clause (b), “relevant factor, in relation to [an employee] means the factor specified in the second column of Schedule IV against the entry in the first column of that Schedule specifying the number of years which are the same as the completed years of the age of the [employee] on his last birthday immediately preceding the date on which the compensation fell due.

(c) where per