Divisional Manager, Oriental Insurance Co. Ltd. vs Pradhani Patra and Another

B.P. Das, J.—This is an appeal u/s 30 of the Workmen''s Compensation Act filed by the Insurer, challenging the award passed by the Commissioner for Workmen''s Compensation, Ganjam in W.C. Case No. 150 of 1992.

The brief facts leading to the filing of the present appeal are that one Pradhani Patra filed an application before the Commissioner claiming compensation for his injury, which he sustained in course of his employment. It is stated in the claim petition that he was working as a loading coolie in the tractor belonging to one Sankar Nahak of Kodala, which was validly insured under the appellant.

On March 26, 1992, the claimant met with an accident while he was on duty and suffered multiple fractures on the left thigh. He claimed an amount of Rs, 1,00,000/- (one Lakh) as compensation. During the course of hearing as many as seven documents were filed in support of his claim before the Workmen''s Compensation Commissioner.

Learned Commissioner after taking into consideration the evidence on record came to the conclusion that: (i) the tractor had been validly insured with the appellant during the period in question; (ii) the owner is liable to pay compensation, which has been quantified at Rs. 43,056/- towards the injuries sustained; (iii) the liability of the owner has to be indemnified by the Insurance Company; and (iv) the disablement of the petitioner has been assessed to be 40% of earning capacity.

The appellant-Insurance Company has filed this appeal challenging the award on various grounds. The learned counsel for the appellant Sri A.K. Mohanty has mainly highlighted the fact that the learned Commissioner has erroneously fixed the loss of earning capacity at 40% without examining the treating doctor or any specialist. In this regard my attention has been drawn to a decision of this Court reported in Dhrubendra Ray Vs. Biswanath Agarwal and Another, wherein it has been held that mere quantification of the percentage of permanent disablement without indication of loss of earning capacity aspect would not meet the requirements of law. Their Lordships also held that statutory provisions which postulate that in case of loss of earning capacity for the purpose of loss, Sub-clause (i) of Clause (c) of Sub-section (1) of Section 4, qualified medical practitioner shall have due regard to the percentage of loss of earning capacity in relation to different injuries specified in Schedule I. Here in this case, the learned Commissioner only placed reliance on the medical certificate issued by the doctor indicating that the claimant has crippled about 45% of permanent disablement. Relying on the aforesaid document, the learned Commissioner has inferred and concluded that the loss of earning capacity is 40%. In my view, this conclusion of the Commissioner cannot be sustained in the eye of law. It is well settled that "a qualified medical practitioner has to take note of duties of workman, claiming compensation under the Act, is required to perform in course of his employment and quantify percentage of loss of earning capacity." New India Assurance Co. Ltd. Vs. Kalandi Moharana and Another, In the case at hand the certificate granted by the doctor on which reliance was placed by the Commissioner is lacking in this respect.

In view of the above facts and circumstances, the award cannot be maintained and the matter is to be dealt by the Commissioner afresh. In order to cut short the delay, the parties are directed to appear before the Commissioner on December 14, 1999, who shall fix up a date for proceeding further.

Accordingly, the Miscellaneous Appeal is allowed, and the impugned order is set aside and the matter is remanded to Commissioner for fresh disposal.