The assessment of disability under the Workmen's Compensation Act, 1923, must be in accordance with the provisions of Schedule 1 of the Act, and a disability certificate issued by a medical authority cannot override the statutory provisions.

IN THE HIGH COURT OF JHARKHAND AT RANCHI

M.A. No. 32 of 2011

1. Project Officer, East Katras Colliery, Area No.IV (now renamed as

New Akash Kinaree Colliery under Area No.III) Bharat Coking Coal

Limited PO Katras, P.S. Katras, District Dhanbad through Basant Kumar

Sinha, S/o Late Lala Kedar Nath Sinha, resident of New Akash Kinaree

Colliery, PO and PS Katras, District-Dhanbad

2. General Manager, Katras Area No.IV (now Govindpur Area No.III,

Bharat Coking Coal Limited, PO Sonardih, PS Madhuban, District

Dhanbad through Sri Subir Ghose, S/o late S.K. Ghose, resident of GM

Bunglow, Seenidih, PO Sonardih, PS Madhuban, District Dhanbad

….. Appellants

Versus

Sri Suresh Ram

….

….

Respondent

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CORAM : HON’BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Appellants

: Mr. Anoop Kumar Mehta, Advocate

: Mr. Amit Kumar Sinha, Advocate

For the Respondent : Mrs. Mahua Palit, Advocate

CAV ON 16.12.2021

PRONOUNCED ON 13 .01.2022

1.

The instant appeal has been preferred against the award of

compensation by the Commissioner, Workmen’s Compensation Dhanbad,

in Case No W.C.17/2007 (C) whereby and whereunder an award of

compensation of Rs.3,46,203/- has been made in favour of the

respondent.

2.

The brief fact leading to present appeal is that the

applicant/respondent who was employed in East Katras Colliery, and

working as Underground Trammer suffered in an accident on 18.05.2006

while he was on duty in the underground mines resulting in loss of eye

sight of his left eye.

3.

This appeal has been admitted for hearing on the following

substantial question of law:-

(a) Whether the learned Commissioner, Workmen’s Compensation,

Dhanbad, has erred in law in having failed to take into consideration

entry No.25 of part II of Schedule 1 appended to the Workmen’s

Compensation Act, 1923 which provides that in the event of loss of 1

eye without complication the other being normal the percentage of

loss of earning capacity is 40% and not 100%.

2

(b) Whether the disability certificate issued by the Civil Surgeon,

Dhanbad after about 2 years from the date of accident can override

the provisions contained in the Workmen’s Compensation Act, 1923

especially the schedule appended thereto.

4.

It is argued on behalf of the appellant that in the event of loss of

one eye without complication the percentage of loss of earning capacity as

per entry No.25 of part II of Schedule 1 appended to the Workmen’s

Compensation Act, 1923 is 40% and not 100% and therefore the disability

certificate to the extent of 100% issued by the Civil Surgeon after two

years from the date of accident cannot override the express provisions of

the Workmen’s Compensation Act, 1923.

5.

The impugned order has been defended by the learned counsel

appearing on behalf of the respondent/applicant.

6.

The factual aspect of the case is not in dispute and it is admitted

position that the applicant suffered injury in his left eye during course of

his employment in 3^rd Pit Sean VI Level he was sent to Central Hospital,

Dhanbad, and thereafter referred to AIIMS, New Delhi for better

treatment on 02.05.2006.

7.

The main question for consideration is whether the disability

certificate to the extent of 100% is in consonance with statute

and secondly what should be the functional disability for the loss of one

eye, when the employee was not removed from work on account of loss of

one eye during course of employment.

8.

It need to be appreciated that percentage of disability to be

recorded by the doctor is not to be made arbitrarily, but as per the norms

as set out in Schedule II of the Employee’s Compensation Act, 1923 and

in case of any deviation specific reason need to be assigned for the same.

As per entry no.25 in case of loss of one eyesight total disability is 40%

and