The assessment of loss of earning capacity by a qualified medical practitioner is a condition precedent for a valid assessment of compensation under the Workmen's Compensation Act, 1923.

Amitava Roy, J.

1. The judgment and order dated 10.04.01, passed by the learned Commissioner, Workmen's Compensation Act, Guwahati, in W.P.(C) case No. 54/2000, awarding a sum of Rs. 1,10,502/- with interest thereon, in favour of the Respondent-claimant, has been put to challenge by the insurer of the vehicle No. As-01-B-6999.

2. I have heard Mr. S. Dutta, learned Counsel for the Appellant and Mr. D.K. Saikia learned Counsel for the opposite party No. 1. The opposite party No. 2 did not enter appearance in spite of service of notice.

3. The facts in brief, leading to the filing of the instant appeal are that the opposite party No. 1, while engaged as a handyman in the bus No. AS-01-B-6999, being in the employment of the opposite party No. 2, sustained injuries as the vehicle was involved in an accident. This was on 26.10.99. As a result of the accident, he sustained injuries on the right thigh and right shoulder-joint for which he took treatment at the Guwahati Medical Hospital, Guwahati, incurring an expenditure of Rs. 50,000/-. The opposite party No. 2, his employer, having refused to extend any financial help, the claim was lodged with the Commissioner, Workmen's Compensation Act, Guwahati, claiming an amount of Rs. 3,00,000/- under the Workmen's Compensation Act, 1923 (hereinafter referred to as "the Act"). The employer did not contest the claim.

4. The Petitioner, insurer of the vehicle involved, in its written statement, while challenging the status of the opposite party-claimant as a workman under the Act, disputed the accident and the injuries sustained by him. The Petitioner-insurer, therefore, denied its liability.

5. The opposite party-claimant examined himself and proved documents in support of his claim. The opposite-party No. 2 examined witnesses, amongst others, Dr. Uttam Chandra Roy, as DW 3, who in his evidence stated as follows, on the injuries sustained by the opposite party-claimant:

(i) Rt. Thigh sweling with tenderness.

(ii) Rt. Shoulder joint blunt injury with restricted movement.

(iii) Cheek swelling with tenderness.

Advised X-ray for injured parts.

The X-ray plate shown to me nailing in right finula. The patient said that he treated outside I advised him for further treatment at GMCH.

Injury No. 1 Rt. Thigh injury is grievous nature. The rest are simple.

Injury No. 1 physical disability is 50%.

No further treatment was taken under me.

6. The learned Commissioner, workmen's Compensation Act, Guwahati, on the basis of the materials on record, awarded the above amount as compensation payable to the opposite-party-claimant. In arriving at the said figure, the learned Commissioner accepted Rs. 2,000/- as the monthly wages of the injured (Rs. 800/- as salary per month plus Rs. 40/- as daily allowance). Considering the loss of earning capacity to be 50%, acting on the medical evidence and by applying the factor statutorily prescribed i.e. 194.17, the amount aforementioned was quantified.

7. Mr. Dutta has argued that it being a legislative prescription contained under Section 4(1)(C) of the Act that in case of injury not specified in schedule 1 for computation of compensation payable or injuries resulting in permanent total disablement, assessment of the loss of earning capacity by qualified medical practitioner is an essential precondition, the formula applied for assessing the amount of compensation in the instant case being per se in contravention of the mandate of the Act, the award merits interference. In support of his submission, Mr. Dutta has taken this Court through the evidence of Dr. Roy, DW-3. He has further submitted that the learned Commissioner erred in including the daily allowance of Rs. 40/- to be a part of the wages for quantifying the amount of compensation, and this having vitiated the award by a patent illegality, it ought to be set aside on this ground as well. In support of his submissions, Mr. Dutta has placed reliance on the decisions of this Court in New India Insurance Co. v. Sanjit Kumar