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2006 Supreme(Gau) 763
IN THE HIGH COURT OF GAUHATI
AFTAB H. SAIKIA, J.
Oriental Insurance Co. Ltd. – Appellant
Vs.
Dwijen Kalita and Anr. – Respondent
FAO No. 15 of 1999
Decided On: 17.08.2006
Advocate Appeared
For Appellant/Petitioner/Plaintiff: S. Dutta, K.K. Dey and R. Kaur, Advs.
For Respondents/Defendant: S. Das, Adv.
The central legal point established in the judgment is that the assessment of loss of earning capacity due to an injury not covered by Schedule-I of the Act must be conducted by a qualified medical practitioner as per Section 4(i)(c)(ii) of the Act.
Headnote:
Workmen's Compensation Act - Loss of Earning Capacity - Section 4(i)(c)(ii)
Fact of the Case:
The claimant suffered a grievous injury in his right eye, resulting in the loss of earning capacity. The learned Commissioner awarded compensation, which was challenged by the Insurance Company.
Finding of the Court:
The Court found that the assessment of the loss of earning capacity due to the injury not covered by Schedule-I of the Act required the opinion of a qualified medical practitioner as per Section 4(i)(c)(ii) of the Act.
Issues: The main issue was whether the loss of earning capacity due to the injury not covered by Schedule-I of the Act required assessment by a qualified medical practitioner as per Section 4(i)(c)(ii) of the Act.
Ratio Decidendi: The Court held that in cases where the injury is not specified in Schedule-1, the assessment of loss of earning capacity must be done by a qualified medical practitioner as per Section 4(i)(c)(ii) of the Act.
Final Decision: The impugned judgment and award were set aside and quashed, and the matter was remanded to the learned Commissioner for assessment of the compensation afresh after summoning the concerned Doctor to appear before him and to give an opinion on the percentage of loss of earning capacity due to the loss of eye sight of the right eye.
Aftab H. Saikia, J.
1. Heard Mr. S. Dutta, learned Counsel for the Appellant and Mr. S. Das, learned Counsel for the Respondents.
2. On perusal of the record, it appears that though the instant appeal preferred under Section 30 of the Workmen's Compensation Act, 1923 (for short, 'the Act') was admitted on 19.4.99, no substantial question of law as required under the provision of Section 30 of the Act was formulated.
3. In view of the same, upon hearing the learned Counsel for the parties and also having carefully gone through the impugned judgment and award dated 4.1.99 passed by the learned Commissioner Workmen's Compensation, Guwahati in WC. Case No. 15 of 1997 the following substantial question of law has been formulated to-day itself.
Whether the loss of earning capacity due to the injury not covered by Schedule-I of the Act is required to be assessed by the qualified Medical Practitioner in terms of Section 4(i)(c)(ii) of the Act.
4. Before initiation of consideration of the rival contentions of the learned Counsel representing the parties and discussion to arrive at a proper determination of this substantial question of law formulated as above, it would necessary and useful to refer to the provision of Section 4(i)(c)(ii) of the Act which is quoted hereunder:
4. Amount of compensation - (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:
. . .
. . .
(c) When permanent partial disablement result from the injury.
(i)...
(ii) In the case of an injury not specified in Schedule-1, such percentage of the compensation payable in the case of permanent total disablement as is proportionate in the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury.
Explanation-I:...
Explanation II : 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 in relation to different injuries specified in Schedule-1.
5. In the instant case, the claimant/Respondent No. 1 while working as "Handiman" met with an accident on 8.3.97 at Barpeta Road Bus Stand while reached thereat on the way from Panbari and as a result of accident, he suffered grievous injury in his right eye which necessitated the operation in the Sankardev Netralaya, Guwahati incurring huge expenses and resultantly he lost his eye sight of the right eye.
6. The learned Commissioner while entertaining the petition considering the relevant medical papers including the medical Certificate issued by the Sankardev Netralaya to the effect that the Petitioner had no visual ability in his right eye, held that loss of earning capacity of the Respondent No. 1 should not be below 70% as permanent disability and accordingly awarded an amount of Rs. 187,076 as just compensation.
7. Dissatisfied with the same, the Insurance Company-Appellant preferred this first appeal against the judgment and award as noted above.
8. Assailing the findings of the learned Commissioner, Mr. Dutta, learned Counsel for the Appellant has rested on his only submission that the learned Commissioner was not justified in assessing the award to the extent of 70% permanent disability without being supported by any evidence of the qualified Medical Practitioner in terms of Section 4(I)(c)(ii) of the Act as quoted above. According to him, the injury in question was not within the injury so enunciated in Schedule-I of the Act. Referring to Sl. No. 25 under Part-II of the said Schedule, the learned Counsel has submitted that the injury of such nature, as in the case in hand, does not fall under Sl. No. 25 under the heading of other injuries, because as per Sl. No. 25, loss of one eye, without complication, the other being normal, the percentage of such injury would be 40 per cent. In the instant case, it is admitted that the claimant/Respondent No. 1 has lost his eye sight of one eye i.e. right eye with complication when t
