The assessment of loss of earning capacity by a medical practitioner is an aid to the Commissioner and cannot be the sole determinative factor for the award of compensation.

JUDGMENT :

1. The instant appeal has been filed by the appellant against award dated 20.05.2014 (for short impugned award) passed by the Assistant Labour Commissioner, Doda (for short the Commissioner) under Employees Compensation Act, 1923 (for short the Act) in favour of the respondent herein.

2. The appeal has been filed under Section 30 of the Act which provides for filing of an appeal from various orders of a Commissioner enumerated in (a) to (e) of sub-section (1). The first proviso appended thereto Section 30(1) however, would provide that no appeal shall lie against any order unless a substantial question of law is involved in the appeal.

3. The appellant in the memo of appeal has formulated as many as seven questions styled as substantial questions of law, however, learned counsel for the appellant insists for consideration of only following question thereof stated to be a substantial question of law:-

"Whether without determining the nature of injury and without there being any evidence with regard to loss in earning capacity, the compensation can be granted".

4. Heard learned counsel for the parties and perused the record.

5. Learned counsel for the appellant while placing reliance on Judgment passed by this Court in case titled as "Divisional Manager, J&K State Forest Corporation vs. Bansi Lal, 2019 (1) JKJ 603[HC]", would contend that the Commissioner proceeded to pass the impugned Award in breach of Section 4(1)(c)(ii) of the Act, in that, in the case of an injury not specified in Schedule 1, compensation is payable in the case of permanent total disablement as is proportionate to the loss of earning capacity to be assessed by the qualified medical practitioner alone.

6. According to the leaned counsel for the appellant, Explanation-II appended to Section 4 supra would provide that in assessing the loss of earning capacity for the purpose of sub-clause (ii), the qualified medical practitioner shall have due regard to the percentage of loss of earning capacity in relation to different injuries in Schedule 1.

7. According to the learned counsel for the appellant the Commissioner in absence of any such assessment of loss of earning capacity by the qualified medical practitioner, could not have granted/awarded compensation to the claimant/ respondent.

8. Per contra, learned counsel for the respondent/claimant would resist and controvert the contentions raised and urged by the learned counsel for the appellant and would contend that no substantial question of law is involved in the appeal warranting interference by this court inasmuch as the non-assessment of the loss of earning capacity by the qualified medical practitioner under Section 4(1)(c)(ii) does not forbid or stand in the way of the Commissioner for award of compensation to the claimant/respondent, in that, such assessment would merely be a medical opinion of an expert in aid to the Commissioner in adjudicating a claim in correct perspective.

9. The Workman Compensation Act 1923 indisputably has been enacted for social security and is a welfare legislation with its purpose to protect the workman. The intention of the legislation as provided under the Act is to make the employer/insurer of the workman responsible against the loss caused by injury or death which might to have happened, while the workman has been engaged in his work.

Section 2 (b) of the Act defines the Commissioner as under:-

"2.(b) Any Commissioner may, for the purpose of deciding any matter referred to him for decision under this Act, choose one or more persons possessing special knowledge of any matter relevant to the matter under enquiry to assist him in holding the enquiry."

Section 20 provides for appointment of Commissioner and reads as under:-

"20. Appointment of Commissioners.-

(1) The State Government may, by notification in the Official Gazette, appoint any person [who is or has been a member of a State Judicial Service for a period of not less than five years or is or has been for not less than f