NIC vs Jitendra Kumar

Alok Sharma, J.—This misc. appeal has been filed under section 30 of the Workmen Compensation Act, 1923 (hereinafter ''the Act of 1923'') against the judgment/award dated 31.8.2004 passed by the Commissioner, Workman Compensation, Jaipur (hereinafter ''the Commissioner'') whereby the respondent claimant''s (hereinafter ''the claimant'') application has been allowed and compensation of Rs. 5,24,328/- along-with interest @ 9% p.a from the date of accident till the date of payment has been determined.

The facts of the case are that the claimant filed an application before the Commissioner under section 22 of the Act of 1923 claiming compensation on various counts to the tune of Rs. 8,76,000/- on account of alleged permanent disabilities resulting from injuries sustained in the course of employment under respondent No. 2 as a driver of truck No. DL-1LE-3580 on 30.8.2003. It was stated that in an accident near Shahpura the claimant had sustained fracture of his right thigh and fractures on left leg in tibia and fibula. It was stated that the claimant had been diagnosed with 35% permanent disability by a registered medical practitioner and disability prevented the claimant from even sitting cross-legged. Because of the aforesaid disability he was unable to drive any kind of vehicle consequent to which he was rendered unemployed suffering 100% loss of earning capacity.

On notice the owner of the truck (respondent No. 2) filed his reply. The factum of the claimant''s employment as driver of truck No. DL-1LE-3580 as also his injuries were admitted. It was however stated that as the vehicle involved in the accident was insured with the insurance company, it alone was liable to pay the compensation as found by the Commissioner. The insurance company now the appellant in this Court on its part filed a reply to the claim petition and denied the claim. Objections were raised by it regarding non-receipt of information of the accident as warranted under the terms of the policy issued to the insured, the absence of a valid driving licence with the claimant and as to the income of the claimant and his age as claimed.

On the basis of the pleadings the Commissioner framed four issues. The parties to the claim petition led their respective evidences.

On consideration of the matter the learned Commissioner found that the claimant was entitled to a compensation of Rs. 5,24,328/- along-with interest @ 9% p.a. from the date of accident till the date of payment.

Mr. T.P. Sharma, counsel appearing for the appellant insurance company has submitted that the substantial question of law in this appeal is "as to whether on the basis of 35% permanent disability certificate the Commissioner could have in the absence of any assessment of loss of earning by the doctor arrived at a finding of loss of 100% earning capacity?" Counsel has submitted that the injuries suffered by the claimant were not scheduled injuries and in terms of explanation II of section 4 of the Act of 1923 the assessment of loss of earning capacity in such cases had to be mandatorily made by a qualified medical practitioner. It was submitted that in the instant case the certificate of disability issued to the claimant only indicated percentage of permanent disability (35%) and not loss of earning capacity. He further submitted that even otherwise for whatever its worth the certificate of disability Ex. 11 relied upon by the claimant was not proved by the doctor, who had issued it, by entering the witness box. No cross examination of the doctor was thus possible. Referring to Judgment of Hon''ble Supreme Court in the case of Rajesh Kumar @ Raju Vs. Yudhvir Singh and Another, , counsel has submitted that the Hon''ble Supreme Court has held that unless the author of the disability certificate is examined himself, the certificate would not be admissible in evidence. Reliance has also been placed upon the Judgment of Hon''ble Supreme Court in the case of National Insurance Co. Ltd. Vs. Mubasir Ahmed and Another, wherein it has been held that the cases which relate to injuries which are not specified in Schedule-I and are covered by section 4(1)(c)(ii), explanation II mandating that only a qualified medical practitioner assess the loss of earning capacity in relation to different injuries suffered by the claimant. Counsel further relied upon the aforesaid judgment to emphasise that loss of earning capacity is not synonymous with the percentage of the permanent disablement. Reference was also made to the Judgment of Orissa High Court in the case of Divisional Manager, United India Insurance Co. Ltd. Vs. Bhagaban Das and Another, wherein the Hon''ble Orissa High Court held that the mode of assessment of loss of earning capacity and the person competent to assess it has been provided for in section 4 of the Act of 1923 and has only to be done by a qualified medical practitioner on sound principles of medical science. It was further held in the aforesaid case that the loss of earning capacity must be founded upon injuries suffered by the claimant, the resultant functional disability and should not be on the basis of mere guess work. And where the Commissioner assesses the loss of earning capacity without any expert evidence of a registered medical practitioner as required under law, a substantial question of law would arise in respect of such an assessment and an award/judgment based de hors such assessment would not be sustainable in law. Counsel also submitted that while assessing the loss of earning capacity aside of the percentage of permanent disability, the nature of injuries, post-accident capacity of the injured to perform the specific type of work which he was earlier performing have to be considered. Reference has also been made to the Judgment of Hon''ble Calcutta High Court in the case of New India Assurance Company Limited Vs. Bharat Yadav alias B.P. Yadav and Another, where the same principle has been reiterated and it has been held that the Commissioner cannot determine loss of earning capacity without a registered medical practitioner having first assessed the loss of earning capacity of a workman in the context of permanent disability found and other attendant factors. Counsel submitted that in this view of the matter not only the question of law as framed in this appeal should be answered in favour of the appellant insurance company but also the impugned judgment/award dated 31.8.2004 passed by the Commissioner should be set aside.

Counsel for the claimant- respondent has submitted that the evidence on record by way of Ex. 11 i.e. the certificate of disability was sufficient for the Commissioner to come to the conclusion of the claimant having 100% loss of earning capacity, in as much as the said certificate indicates that the claimant could not even sit cross-legged. He submits that the claimant was working as a driver and when it was difficult for him to sit, it is inconceivable that he would be in a position to drive a vehicle. Hence determination of 100% loss of earning capacity by the Commissioner was reasonable. In the alternate it has been submitted that the matter be remanded to the Commissioner for deciding afresh on the question of loss of earning capacity on the basis of examination of the doctor and other attendant relevant circumstances.

Heard the counsel for the appellant Insurance company and the respondent claimant.

The state of law with regard to assessment of earning capacity from injuries not a part of Schedule-I to the Act of 1923 is quite well settled. The obtaining legal position in regard thereto is that a mere permanent disability certificate giving out percentage disability cannot be treated as synonymous with loss of earning capacity. In terms of the Act of 1923 more particularly section 4(1)(c)(ii)- Explanation-II, loss of earning capacity has to be assessed by a registered medical practitioner who has determined the extent of permanent disability. Further it is mandatory that for a certificate of disability to be admissible in evidence it be proved by the doctor issuing it by entering into the witness box. This was not done in this case. Thus in the instant case the essential requirements of proving the permanent disability, certificate and assessment of loss of earning capacity were not satisfied before the Commissioner. These dual lacunae vitiate the impugned judgment and award dated 31.8.2004. Consequently, in my considered opinion the judgment/award dated 31.8.2004 passed by the Commissioner, Workman Compensation, Jaipur is liable to be set aside to the extent of loss of earning capacity and compensation determined.

However as the matter relates to an employee right to compensation under a socio-economic beneficial statute it is remanded to the Commissioner, Workman Compensation, Jaipur for decision afresh on the loss of earning capacity after due opportunity to the claimant to produce a registered medical practitioner in evidence to assess the loss of earning capacity of the claimant consequent to the accident dated 30.8.2003. The other parties to the claim petition shall be allowed to cross-examine the expert i.e. the Registered Medical Practitioner and lead their own evidence in respect thereto.