The Commissioner must rely on medical assessments for determining loss of earning capacity in workmen's compensation claims, especially for non-schedule injuries.

JUDGMENT :

(Robin Phukan, J.)

Heard Mrs. S. Roy, learned counsel for the appellant and also heard Mr. J.P. Sharma, learned counsel for the respondent.

2. This appeal, under Section 30 of the Workmen’s Compensation Act, 1923, is directed against the Judgment and Award dated 22.02.2006, passed by the learned Commissioner, Workmen’s Compensation, Dhubri in WC Case No. 02/2002. It is to be noted here that vide impugned Judgment and Award, the learned Commissioner had directed the appellant herein to pay a sum of Rs. 3,78,355/, being the compensation to the respondent No.1/claimant herein.

3. The back ground facts leading to filing of the present appeal are briefly stated as under:-

“The respondent No.1 herein was employed as driver of respondent No.2, namely, Sawarmal Tantia. Respondent No.2 had one Maruti Car, bearing Registration No. AS-19/7711. On 23.08.2001, at about 4 pm the respondent No.1 was proceeding from Golokganj to Dhubri. While he reached Dumardaha, N.H. 31, under Golokganj P.S., the car met with an accident, wherein he sustained grievous injuries. The respondent No.1 was taken to Dhubri Civil Hospital and from there he was referred to Gauhati Medical College Hospital and there he was admitted for 18 days and thereafter, also he continued treatment at Nishiganj and thereafter, at Dhubri Civil Hospital. He lost one of his eyes, in the said accident and also both bone of his left arm got fractured. In connection with the accident Golokganj P.S. Case No. 111/2001 was also registered. Thereafter, respondent No.1 had served a Notice, under Section 10 of the Workmen’s Compensation Act with the respondent No.2. But, the respondent No.2 paid no heed to the same, instead he advised him to claim compensation from the present appellant as the vehicle was insured with the appellant, vide policy No. 200701/31/2000/61/00991 and the same was valid upto 20.12.2001. The respondent No.1, became unemployed on account of the injuries sustained by him and then being left with no option he filed a claim petition, enclosing relevant documents, before the learned Commissioner, Dhubri claiming a sum of Rs. 4,00,000/- being the compensation.

The appellant and the respondent No.2 had contested the said claim petition by filing written statements denying their liabilities to pay compensation to the respondent No.1.

Thereafter, the learned Commissioner had framed following issues:-

1. Is there any cause of action for the claimant petitioner?

2. Whether the claim petition is maintainable in its present form?

3. Whether the O.P. are liable to pay compensation as claimed by the claimant petitioner?

4. If yes, what relief is the claimant petitioner entitled to?

Thereafter, hearing both the parties, the learned Commissioner had decided all the issues in favour of the respondent No.1/claimant herein and directed the appellant herein, to pay compensation as stated herein above.

4. Being aggrieved, the appellant has preferred this appeal, which was admitted vide order dated 23.06.2006, without, however, framing any substantial question of law.

4.1. But, subsequently, following substantial question of law were framed:-

I. Whether, the learned Commissioner under the Workmen’s Compensation Act, 1923 can pass an award in respect of a non-schedule injury without there being any assessment of loss of earning capacity by the medical practitioner as required under Section 4(1)(C) (ii) of the Act ?

II. Whether the learned Commissioner under the Workmen’s Compensation Act, 1923 has the jurisdiction to assess the loss of earning capacity?

5. Mrs. Roy, the learned counsel for the appellant, submits that the injuries sustained by the respondent No.1 are non-schedule injury. Further, Mrs. Roy submits that under Section 4(1)(C) (ii) of the Workmen’s Compensation Act, 1923 in respect of a non-schedule injury there must be an assessment of loss of earning capacity by the registered medical practitioner. But, in the case in hand, the learned Commissioner had himself assessed the loss of