The central legal point established in the judgment is that the assessment of compensation under the Employee’s Compensation Act should consider the nature of work the employee was capable of performing at the time of the accident and should not assume 100% loss of earning capacity for non-scheduled injuries.

JUDGMENT :

Heard Mr. R. Goswami, the learned counsel for the appellant.

None appears for call for the sole respondent.

2. It may be mentioned that as per order dated 20.09.2023, the learned amicus curiae appointed by this Court for the respondent was not present when the matter was called and therefore, another learned amicus curiae was appointed. However, as indicated herein before, none appears for the respondent on call. Thus, as this appeal was filed on 02.11.2010 and admitted for hearing by order dated 23.05.2011, the Court by recording the above in the order dated 30.11.2023, proceeded to hear the learned counsel for the appellant as only question of law is involved in this appeal. It may be mentioned that the name of respondent no.2, the owner of the vehicle was struck-off by order dated 22.06.2016.

3. This appeal under section 30 of the Employee’s Compensation Act, 1923 is directed against the order and award dated 09.07.2010, passed by the learned Commissioner, Workmen’s Compensation, Golaghat in W.C. Case No. 60/2008, thereby awarding a sum of Rs.4,99,152.00 (Rupees Four lakh ninety nine thousand one hundred fifty two only) in favour of the respondent by directing the appellant to satisfy the award.

4. This appeal has been admitted by order dated 23.05.2011 on the following substantial question of law:

Whether the learned Commissioner erred in assessing the amount of compensation by erroneously accepting the loss of earning capacity of the respondent- claimant to be 100% in disregard to the principles contained in section 4(1)(c) of the Workmen’s Compensation Act (now Employees’ Compensation Act, 1923)?

5. In brief, the case of the respondent-claimant was that on 03.07.2008, while on duty as a driver, on NH-37 near Bakultol under Koliabor P.S. his truck bearing registration no. AS-01-AC-9371 had head-on collusion with another truck bearing registration no. NL-01-A-8649, which was being driven in a rash and negligent manner and as a result of the accident, he had sustained

(i) comminuted compound fracture of right leg (both bone), fracture injuries on both legs and multiple body injuries. He was taken to B.P. Civil Hospital, Nagaon and thereafter, he was shifted to GMCH, Guwahati and then he received treatment at a private hospital at Guwahati. The accident was registered under Koliabor P.S. G.D. Entry No.78 dated 03.07.2008. The respondent claimed that he was 26 years of age, getting monthly salary of Rs.4,000/-per month, excluding his daily allowance. It was also claimed that he was totally disabled and rendered unfit for doing job as a driver and accordingly, claimed compensation for a sum of Rs.5,16,672/-under the Workmen’s Compensation Act, 1923.

6. In the proceedings before the Commissioner, Workmen’s Compensation, the owner of the vehicle which was driven by the respondent no. 1 had appeared and he had admitted employment of the respondent as driver under him at the time of the accident and had projected that the truck was plying on the strength of all valid documents and was insured with the appellant. The appellant, who were opposite party no. 2 in the proceeding had contested the claim by denying the accident that the respondent was a workman or that he had suffered injuries in course of his employment and the age and income of the respondent was also disputed.

7. During trial, the respondent-claimant had examined three witnesses, viz., Prasad Kalita (respondent no.1) (CW-1); Dadu Bora @ Jan Bora (CW-2); and Dr. S. Nazim Hussain, SDM&HO, Golaghat (CW-3). The CW-1 had exhibited 17 documents, which included medical documents. The appellant did not examine any witness and did not prove any document.

8. Basing upon the evidence of CW-3, who was the Medical Officer (orthopedic surgeon), and had deposed to the effect that the Medical Board had assessed physical disability as 50% and loss of earning was 100%, and relying on the decision of the Supreme Court of India in the case of Pratap Narain Singh Deo v. Shrinivas Sabata