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1997 Supreme(Ori) 271
IN THE HIGH COURT OF ORISSA
S.C. Datta, R.K. Patra, JJ.
C. DAVID - APPELLANT
Versus
GOBIND CHANDRA MISHRA AND ANOTHER - RESPONDENT
M.A. No. 466/93 of 1993
Decided On : 14-01-1997
L.M. Nanda, M.R. Das and N.N. Mishra, for the Appellant; S.K. Ghosh, C.K. Nanda and B.N. Tripathy for Respondent No. 1 and A.K. Mohanty, S.N. Satpathy and A.K. Sahu, for the Respondent
In cases of non-schedule injuries under the Workmen's Compensation Act, 1923, the assessment of loss of earning capacity must be made by a qualified medical practitioner with due regard to the percentages of loss of earning capacity specified in Schedule I of the Act.
Headnote:
WORKMEN'S COMPENSATION ACT, 1923 - SEC. 4(1)(C)(II), EXPLANATION-II - NON-SCHEDULE INJURY - ASSESSMENT OF LOSS OF EARNING CAPACITY - EVIDENCE REQUIRED.
Fact of the Case:
The appellant, a driver, sustained multiple injuries, including a fracture of the right elbow, in a car accident while driving his employer's car. He filed a claim for compensation under the Workmen's Compensation Act, 1923, alleging permanent partial disability.
Finding of the Court:
The Commissioner awarded compensation based on a 60% loss of earning capacity, as assessed by a medical practitioner. The appellant challenged the award, arguing that he should have been compensated for total disablement.
Issues: 1. Whether the medical practitioner's assessment of the appellant's loss of earning capacity was sufficient to establish total disablement under the Act. 2. Whether the appellant was entitled to compensation for total disablement or permanent partial disability.
Ratio Decidendi: 1. The Court held that the medical practitioner's assessment of the appellant's loss of earning capacity was insufficient to establish total disablement. 2. The Court held that the appellant was entitled to compensation for permanent partial disability, as determined by the Commissioner.
Final Decision: The Court dismissed the appellant's appeal and upheld the Commissioner's award of compensation for permanent partial disability.
JUDGMENT :
R.K. Patra, J. - A learned single Judge while hearing this appeal did not find himself in agreement with the opinion expressed by another learned single Judge of this Court in National Insurance Co. Ltd. Vs. Narendra Samal and Another. That is how, on being referred, this matter has come before us for hearing.
2. The appellant C.David is a driver. On May 18, 1992 at about 5-40 a.m. when he in his capacity as driver was driving the car bearing registration number ORX 1612 belonging to the respondent No.l, it collided with a truck No. AP/T -2349 coming from opposite direction near the Rajaloka crossing under Jhara Pokharia P.S. in the district of Mayurbhanj on N.H. No. 5. As a result of the accident, the car was badly damaged and the appellant was seriously injured with fracture of right elbow and multiple injuries all over his body. He was removed to Baripada hospital for treatment. Later, he got himself treated in S.C. B. Medical College and Hospital, Cuttack and also in a private clinic. After some days he filed an application before the Deputy Labour Commissioner-cum Commissioner for Workmen's Compensation claiming compensation of Rs. 70,000/- for the injuries sustained by him. The said application was registered as W.C. case No. 560 -D of 1992. The Respondent No. 1 the owner and Respondent No.2 the insurer appeared before the Commissioner and filed their respective written statements. On perusal of evidence, the Commissioner, by the impugned order, came to hold that the appellant was injured and incurred physical disability in course of and arising out of his employment as a workman. He further held that at the time of the accident, the appellant was about 40 years of age and was getting Rs. 1000/- per month towards his wages. The Commissioner found that the appellant sustained different grievous and simple injuries including multiple fracture of right ulna and right forearm. The Commissioner accepted the statement of the doctor that the appellant suffered to the extent of permanent partial physical disability at 60% and assessed the compensation under Sec. 4(1)(b) of the Workmen's Compensation Act, 1923 (hereinafter referred to as the Act) as indicated below:
"50% of the wage, i.e. Rs 500 x extent of disability i.e. 60 x age factor of 40 years, i.e, 184.17 to be divided by 100, that is to
say = _500x60x184.17_
100
=Rs. 55,251.00"
As the offending car was duly insured with the insurer-Respondent No. 2 which was valid at the time of the accident, the Commissioner fixed the liability to pay compensation of Rs. 55,251 /- on the Respondent No 2.
3. The appellant being aggrieved by the aforesaid order of the Commissioner has filed this appeal u/s 30(1) of the Act contending that the amount of compensation is inadequate which ought to have been fixed as a case of total disablement.
4. Let us first find out the extent of injury suffered by the appellant on account of the accident and the nature of physical disability. The Commissioner on perusal of the medical report issued by the Medical Officer of the district headquarters hospital found that the appellant had sustained multiple fracture of right ulna, right forearm besides other grievous and simple injuries on his person. PW-2 Dr. S.K. Mohapatra examined the appellant on March 13, 1993 at his private clinic at Cuttack. In his evidence, he stated that with the present condition of deformity, the appellant's percentage of disability was 60%.
5. Shri Nanda relying on the Judgment of the Supreme Court in Pratap Narain Singh Deo Vs. Srinivas Sabata and Another, and a Judgment of a learned single Judge of this Court 5 in National Insurance Co. Ltd v. Narendra Samal (supra) contends that the percentage of loss of earning capacity of the appellant should be assessed at 100 percent. Shri Mohanty, counsel appearing for the insurer-Respondent No. 2 on the other hand submits that the aforesaid proposition urged on behalf of the appellant is not tenable in view of the absence of any evi
