United India Insurance Co. Ltd. vs Jitumni Choudhury and Others

Nishitendu Chaudhury, J.—This appeal under Section 30 of the Workmen''s Compensation Act, 1923, (redesignated as Employees'' Compensation Act 1923 and hereinafter referred to as ''the Act'') has been preferred by the United India Insurance Company Limited challenging the judgment and award dated 01.11.2006 passed by the learned Commissioner, Workmen''s Compensation, Kamrup in W.C. Case No. 35/2005 whereby the insurance company was directed to make payment of compensation to the tune of Rs. 90,537/- along with interest at the rate of 9% per annum w.e.f. the date of accident till the date of deposit Imposition of interest was, however, subject to default in deposit of awarded amount with the W.C. Commissioner within 30 days from the date of adjudication. One Jitumani Choudhury, as claimant, instituted W.C. Case No. 35/2005 before the W.C. Commissioner at Kamrup stating that while working as a driver of vehicle No. AS-15/8170 owned by one Md. Alfur Rahman, he sustained injuries on his person owing to accident of the aforesaid vehicle on 30.08.2003 on the Beki bridge under Sarbhog Police Station of Barpeta district while the vehicle was moving from Barpeta Road towards Sarbhog. In that accident, he sustained injuries in chest, forehead, left forearm and right elbow joint with fracture of right humerus. He had to be under treatment for 3 months but even thereafter he has not been fully cured. He claimed to be 26 years of age and was receiving Rs. 3500/- per month from the employer as monthly salary. He disclosed that Sarbhog P.S. GD Entry No. 31 dated 02.09.2003 was registered in view of the aforesaid accident.

On receipt of notice, the opposite party No. 1 appeared and submitted written statement admitting that the claimant was engaged by him as driver of his Tempo and that he was paying Rs. 3500/- as monthly salary. The owner further disclosed that the vehicle was covered by valid insurance of United India Insurance Co. Ltd. during the relevant period.

The opposite party No. 2 insurance company appeared and submitted written statement denying all the averments made in the claim petition and prayed that the claim case be dismissed.

The learned W.C. Commissioner did not frame any formal issue but asked the parties to prove their respective cases by adducing appropriate evidence. Claimant examined himself as CW 1 but did not examine any doctor. He proved doctor''s prescription as Ext. 1 and Ext. 2, medical certificate as Ext. 3, disablement certificate as Ext. 4, police report as Ext. 5 and Driving License as Ext. 6. By Ext. 4 disablement certificate, the doctor opined that the victim had lost earning capacity to the tune of 20% because of the physical disability sustained by him. But the doctor was neither examined nor was any evidence led for the purpose of assessment of the physical disablement or of loss of earning capacity. The W.C. Commissioner, however, himself made the assessment of compensation by presuming that workman had lost 20% of the earning capacity and this is how arrived at the assessment that claimant is entitled to compensation of Rs. 90,537/-. The learned W.C. Commissioner directed the insurance company to make this payment within 30 days from the date of receipt of the order failing which the insurance company would be liable to make payment of interest at the rate of 9% per annum from the date of accident till realization. This judgment and award passed on 01.11.2006 has been challenged by the insurance company before this court by filing the present appeal under Section 30 of the Workmen''s Compensation Act, 1923.

This court while admitting this appeal on 07.03.2007 has framed the following sole substantial question of law:-

Whether the Commissioner, Workmen''s Compensation can ascertain the loss of earning capacity of the injured person without even examining the Doctor who attended the injured person or not?

I have heard Mr. R.K. Bhatra, learned counsel for the appellant. No one has put up appearance on behalf of the respondents although notices were duly served. The names of the learned engaged counsel for the respondents have also been disclosed in the cause list.

The W.C. Commissioner by the impugned judgment and award proceeded to make assessment of compensation under Section 4(1)(c)(ii) of the Act having held that the claimant had sustained permanent partial disability. The findings arrived at by the learned W.C. Commissioner, however, does not disclose as to whether the provision of Section 2(1)(g) of the Act was taken into consideration before arriving at such finding of fact. Be that as it may, even if the claimant had sustained such disablement resulting in loss of earning capacity, the compensation ought to have been assessed in terms of procedure prescribed under Section 4(1)(c)(ii) of the Act. It needs no elucidation that if a statute prescribes something to be done in a particular manner, then it has to be done only in that manner and not otherwise. The W.C. Commissioner appears to have committed error in not complying with the prescribed procedure under Section 4(1)(c)(ii) of the Act. A bare perusal of the section would show that the assessment of compensation has to be made as such percentage of the compensation as is proportionate to the loss of earning capacity as assessed by the qualified medical practitioner. The statute is emphatic on the point that the W.C. Commissioner cannot himself make the assessment without there being an assessment by a qualified medical practitioner. Although, section 19 of the Act has vested power and authority on the Commissioner to make assessment of compensation but providing appropriate procedure in Section 4(1)(c)(ii) , the W.C. Commissioner has been restrained from making the assessment himself. This is because assessing physical disability or assessing loss of earning capacity owing to such disability is required to be decided by a person duly instructed in medical science and that is why a qualified medical practitioner is necessary for making assessment. The power and jurisdiction of W.C. Commissioner for making such assessment without the aid of qualified medical practitioner came up for consideration before this Court on a number of occasions including the case of New India Assurance Co. Ltd. Vs. Sanjit Kumar and Another, . In paragraph 2 of this judgment this court held that the W.C. Commissioner can alone make the assessment under Section 4(1)(c)(ii) on the basis of the assessment made by a qualified medical practitioner. Mr. R.K. Bhatra, learned counsel for the appellant has placed reliance on the case of A.P. SRTC Vs. P. Thirupal Reddy reported in (2005) 12 SCC 189 where the Hon''ble Supreme Court held that the doctor, who treated the claimant must be examined to prove physical disability of the victim as well as loss of earning capacity. The Hon''ble Supreme Court laid emphasis that High Court committed error in overlooking the fact that non-examination of the concerned doctor would make the medical certificate unacceptable. Upon perusal of the aforesaid two judgments it appears almost settled that while making assessment under Section 4(1)(c)(ii) of the Act, the claimant is duty bound to examine the concerned doctor for the purpose of getting assessment of qualified medical practitioner. In the case in hand, the claimant did not examine any doctor for proving his permanent partial disability. Accordingly, the sole substantial question of law is decided in favour of the appellant and against the claimant. Consequently, the impugned judgment and award is hereby set aside. The matter is remanded to the learned W.C. Commissioner to decide the claim afresh keeping in view the law referred to above.

Since it is a matter of 2005, the W.C. Commissioner shall desire to dispose of the matter within 6 months from the date of receipt of records. At this stage, Mr. R.K. Bhatra, learned counsel for the appellant, submits that pursuant to an order passed by this court in the present appeal, sum of Rs. 40,000/- has already been withdrawn by the claimant from the jurisdictional W.C. Commissioner out of the total awarded amount of Rs. 90,537/- deposited by the insurance company. The remaining amount shall not be disbursed to the claimant till the matter is decided afresh. The appeal stands allowed. No order as to costs.