Assessment of compensation under the Employees Compensation Act requires a certificate from a qualified medical practitioner to determine the loss of earning capacity.

1. Divisional Manager, J&K State Forest Corporation, Division Bhaderwah is in appeal against the award dated 22.10.2010 passed by the Commissioner Employees Compensation Act (Assistant Labour Commissioner), Doda (hereinafter referred to as “Commissioner”) in File No. 82-I titled Bansi Lal vs. Divisional Manager SFC Division Bhaderwah.

2. Briefly stated, the facts leading to the filing of this appeal under Section 30 of the Employees Compensation Act, 1923 (hereinafter referred to as “the Act”) are that, on 03.12.2005, the respondent-workman while working in Compartment No. 73 of SFC Division Bhaderwah met with an accident and received grievous injuries as a result of which he suffered permanent disablement to the extent of 70%. He laid a claim for compensation before the Commissioner against the employer i.e. the appellant herein. In the claim petition, it was claimed that the respondent-workman at the time of accident was earning Rs. 130/- per day and accident took place under and in the course of employment of the appellant. The respondent-workman also claimed that at the time of accident he was 42 years old.

3. With a view to substantiate his claim, the respondent-workman, besides examining himself, also produced witnesses namely Mohd Din and Dr. N.D. Dar, Medical Officer District Hospital Doda. The appellant produced one witness in rebuttal besides entering into the witness box himself.

4. On the basis of evidence of the parties, the Commission found that the respondent was 42 years old at the time of accident and was earning Rs. 3000/- per month. Doctor had certified permanent disablity of the respondent as 70%. Admittedly, there was no certificate by the qualified medical practitioner with regard to the loss of earning capacity of the respondent-workman. Doctor did explain the nature of injury suffered by respondent, but said nothing about the impact of disability suffered by him on his earning capacity. The Commissioner, without insisting for a certificate from the qualified medical practitioner or subjecting the respondent to medical examination to find out the impact of the injury on his earning capacity, of his own, determined the loss of earning capacity of the respondent as 70%. Admittedly, this finding of fact is not supported by any material on record.

5. In the aforesaid context, learned counsel for the appellant submits that the findings of fact recorded by the Commissioner are perverse insofar-as it has taken the loss of earning capacity of the respondent as 70%. Though no formal substantial question of law has been formulated in this appeal, yet learned counsel for the appellant during the course of arguments has raised a question of law as to whether in the absence of any certificate by a medical practitioner with regard to the loss of earning capacity due to permanent disability suffered by the respondent-workman, the Commissioner is competent to assess such loss of earning capacity of his own. As rightly conceded by the learned counsel for the appellant, the Commissioner is the last authority on facts, and therefore, the dispute on facts cannot be made subject matter of adjudication in the appeal under Section 30 of the Act which specifically provides that appeal would lie only if it involves substantial question of law. He, however, submits that the question as to whether the Commissioner could have taken the disability of the workman as loss of earning capacity without insisting for a certificate in this regard to be issued by the qualified medical practitioner is a substantial question of law involved in this appeal.

6. Having heard learned counsel for the parties and perused the record, I am of the opinion that this appeal raises following substantial question of law:

Whether the Commissioner of his own can assess the compensation on account of permanent partial disablement suffered by a workman in case of non scheduled injury without there being a certificate with regard to the loss of earning cap