Workmen's Compensation Act | Gauhati HC Sets Aside Award For Driver Who Lost Eye In Accident, Says No Qualified Medical Practitioner Assessed Loss Of Earnings
The Gauhati High Court has set aside an order passed by the Commissioner of Workmen's Compensation which awarded a compensation of Rs. 3,74,364/- to a driver who allegedly lost vision in one eye in an accident, on the ground that no qualified medical practitioner was examined to assess the loss of earning capacity of the claimant in relation to his injuries and disability certificate was...
The Gauhati High Court has set aside an order passed by the Commissioner of Workmen's Compensation which awarded a compensation of Rs. 3,74,364/- to a driver who allegedly lost vision in one eye in an accident, on the ground that no qualified medical practitioner was examined to assess the loss of earning capacity of the claimant in relation to his injuries and disability certificate was not issued by a medical practitioner.
The single-judge bench of Justice Malasri Nandi observed:
“Under Section 4-(1) (c) (ii) of the Workmen's Compensation Act, (WC Act) the WC Commissioner has been given jurisdiction to make compensation with respect to those injuries by arriving at the finding as to loss of earning capacity from the injuries sustained by the workmen in course of his employment. It has been specifically laid down in the provision that such a loss of earning capacity as assessed by the qualified medical practitioner has to be taken into consideration for the purpose of calculating the compensation amount.”
The facts of the case are that the claimant was employed as a driver of a vehicle driven by him towards Dhubri from Goalpara on January 01, 2005 at about 1 pm. It was submitted that when the vehicle reached Hatipota market, it met with an accident when another vehicle knocked down its front side.
It was submitted that the claimant sustained grievous injuries to his eyes and was operated on twice at Sankardev Netralaya at Guwahati, leading to loss of vision in his right eye. It was argued that due to complete loss of vision in his right eye, he could not drive the vehicle and lost his permanent profession of driving.
Therefore, the claimant filed a claim petition before the commissioner of Workmen's Compensation, Dhubri for compensation. The Commissioner of Workmen's Compensation, Dhubri awarded a compensation of Rs.3,74,364/- on the ground of the alleged loss of vision in one eye of the claimant.
Aggrieved by the said order, the appellant insurance company preferred an appeal under Section 30 of the Workmen's Compensation Act, 1923 (WC Act).
The Counsel appearing for the appellant insurance company submitted that the finding arrived at by the Commissioner based on the certificate of the doctor that the claimant had suffered 75% permanent disability is not sustainable in law because the medical officer was not examined to prove the fact in question.
It was further submitted that the disability certificate was issued in a printed format and there is no indication in the disability certificate as to whether the disability was permanent or temporary nor does it indicate as to on what basis, the issuing authority found that the claimant suffered disability of 75 %.
It was argued that the Commissioner, Workmen's Compensation failed in error in granting interest of Rs.70,568/- calculating the same on the basis of interest @ 9% per annum from the date of accident i.e. January 16, 2005, on the amount of award. It was submitted that under Section 4-A (3) (a) of WC Act, the grant of interest is permissible only when there is a default in paying the compensation due within one month from the date it falls due.
The following issues were before the Court:
- Whether the Commissioner, Workmen's Compensation was justified in taking the loss of earning capacity of the workman at 75 %, on the basis of the disability certificate in view of the allegation that the workman had received injury in one of his eyes and also in view of the percentage of loss of earning capacity as mentioned in part-2 of Schedule of WC Act in respect of loss of one eye without complication, the other being normal, which is required to be taken into consideration while assessing the loss of earning capacity under Section 4 (1) ( C) (ii), in view of explanation II to the said provision.
- Whether the Commissioner was justified in awarding interest under Section 4-A (3) of the 1923 Act from the date of accident.
The Court noted that it is an admitted fact that no medical practitioner was examined to assess the loss of earning capacity of the claimant.
It further highlighted that in Exhibit-14 (disability certificate) nothing had been mentioned regarding the permanent loss of vision of the claimant along with a corresponding loss of earning capacity.
The Court held that the order of the WC Commissioner is not in conformity with the mandate of law under Explanation –II of Section 4 (1) (C) of the WC Act as the assessment made vide Exhibit-14 is not an assessment within the meaning Section 4 (1) (C) (ii) of the WC Act.
Regarding the award of interest, the Court noted that in the present case, the injury involved is a non-scheduled one. and hence, the Commissioner committed an error in granting interest even on the date of adjudication itself.
Thus, the Court set aside the impugned order passed by the Commissioner of Workmen's Compensation.
“Considering the fact that the workman was driver of the vehicle who met with an accident, if the amount deposited by the appellant and withdrawn by the claimant from the office of WC Commissioner, may not be taken back as he might have spent the same,” the Court added.
Citation: 2024 LiveLaw 6
Case Title: National Insurance Co. Ltd. v. Md. Safiur Rahman & Ors.
Case No.: MFA/266/2010