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Judgment
A.N. Venugopala Gowda
Appellant claiming to be the driver of lorry bearing registration No. KA-34-C-3699, owned by the 1st Respondent and insured by the 2nd Respondent, filed a claim petition before the Commissioner for Workmen''s Compensation (''CWC'' for short), Shimoga, to direct the Respondents to pay compensation for the injuries sustained on 22.04.2004, alleging that, the accident arose out of and during the course of his employment. The claim petition was opposed by the 2nd Respondent-insurance company by filing statement of objections. The 1st Respondent/employer remained absent and was placed exparte. 5 issues were framed. Applicant deposed as PW-1 and marked Exs.P-1 to P-7. No evidence was let in by the Respondents.
The CWC by noticing that the claimant has neither examined a qualified medical practitioner nor has produced a disability certificate and the injury sustained being not a schedule injury, answered the issues against the applicant and dismissed the claim petition. Aggrieved, the claimant has filed this appeal.
Sri M.V. Maheswarappa, Learned Counsel appearing for the Appellant, contended that, the learned CWC did not grant reasonable opportunity to examine a qualified medical practitioner. Learned Counsel submitted that, abundant material having been placed with regard to the injuries sustained in the accident, the treatment obtained and the medical records speaking for the permanent disability suffered, the CWC is not justified in passing the impugned order. Learned Counsel by referring to a certificate issued by Dr. Sudheendra P.R, Shimoga on 30.12.2008, submitted that, the Appellant has suffered permanent disability to an extent of 80% to his right lower limb and in the circumstances, the impugned order may be set-aside and an opportunity provided to the Appellant to examine the qualified medical practitioner and prove the permanent disability suffered on account of the injuries sustained, which arose out of and during the course of his employment.
Sri C.R. Ravishankar, Learned Counsel appearing for the 2nd Respondent/insurance company, on the other hand submitted that, the CWG is justified in dismissing the claim petition on account of the fact that the alleged injury sustained being a non-schedule injury, qualified medical practitioner who treated the injured having not been examined and disability certificate was not produced.
Having heard the Learned Counsel on both sides, I have perused the record.
The claimant has produced Ex.P-3, a discharge summary, which has not been appreciated by the CWC. In addition, there are X-rays and other medical records on the file of CWC, which have also not been noticed and appreciated. The Appellant has produced a certificate issued by Dr. Sudheendra P.R, which shows that, on clinical and radiological examination, the Appellant is stated to have suffered permanent disability to the right lower (sic)mb to an extent of 80%. However, the said certificate having been disputed is required to be proved.
In the interest of justice, it would be appropriate that the Appellant is provide with an opportunity to examine a qualified medical practitioner and prove the permanent disability suffered if any and the consequential loss of earning capacity, However, the Appellant has to be put on terms to grant an opportunity, as the claim petition was not diligently prosecuted.
In the result, the appeal is allowed. The impugned order is set-aside.
The matter stands remitted to CWC, Shimoga District, Shimoga, for enquiry and disposal keeping in view the observations made supra and in accordance with law.
The CWC to afford opportunity to both the parties to adduce further evidence, if any.
The claimant, if chooses to examine a qualified medical practitioner, has to do so within a period of two months from the date of first appearance before the CWC The Respondents may also adduce and complete their evidence, if any, within two months from the date the claimant side of evidence is closed. The CWC to decide the claim as early as practicable and at any event, within a period of two months from the date the enquiry is complete.
The claimant shall not be entitled to be award any interest on the compensation if were to be ordered and awarded by the CWC t(sic)l date.
In order to expedite the enquiry and disposal of the matter by the CWC, the parties are directed to appear before the CWC on 17.09.2011 and receive further orders.
Contentions of both parties are kept open for consideration.
No costs.