This Civil Miscellaneous Appeal has been filed by the appellant against the order of the Commissioner for Workmen Compensation at Madurai, in W.C.No.159 of 2000 dated 22.01.2002.
2. In the claim petition, it is stated that the claimant was working as Regular Mazdoor in Chatrapatti Telephone Exchange and was getting a sum of Rs.2,900/- as wages. While he was working in the middle street within the limits of Chatrapatti telephone exchange on 05.12.1997, since the stay wire of the post got released, he was thrown and fell down, by means of which, he sustained fracture in his right femur and was admitted to the Government Hospital, Rajapalayam and his Superiors were also informed. He was in-patient for a period of two months. After examining him, the Doctor assessed his disability at 18%. Hence, a sum of Rs.66,727/- may be awarded as compensation to the claimant.
3. In the counter filed by the Opposite Party, it is alleged that the averments contained in the claim petition, are not true. The manner of accident as stated in the claim petition, is denied. Presently, the petitioner is working under the General Manager of Virudhunagar Telephone Division. He is getting full pay with the increments. He did not sustain any permanent disability. There is no need to pay compensation to him. Hence, the petition may be dismissed.
4. After considering the evidence on record, the Authority below awarded a compensation of Rs.44,485/- as per the following formula:
5. Aggrieved against the above said award, the appellant is before this Court.
6. After notice was served upon the legal representatives of the deceased/claimant, they did not appear before this Court and the case was posted in the list on 22.12.2008 and on that day, there was no appearance on their behalf. Hence, this Court heard the learned Counsel for the appellant and passed the judgment setting aside the award of the Authority below and remitted the case to the Commissioner, for the purpose of examining the Doctor to speak about the loss of earning capacity of the victim. The respondents filed an application to set aside the said order and the same was allowed and the judgment dated 22.12.2008 was set aside and after the restoration, the appeal is heard. After hearing both sides, the said judgment is rendered.
7. At the time of admission of this appeal, this Court has framed the following substantial questions of law:
"(1) Whether the Commissioner for Workmen's Compensation had failed to note
Section 4(c)(II) of Workmen's Compensation Act, 1923. (2) In the light of the continuous employment being given by the appellant even after treatment whether the respondent herein is eligible to get further future employment benefits till his retirement with pension."
8. The disability certificate is Ex.A.4, in which, it is stated that the claimant had sustained fracture in his right hip, hence, he is suffering from pain in his right hip and that he is suffering from the permanent disability to the tune of 18%. Pertinent, it is, to state that the Doctor, who issued the certificate, was not examined by the claimant. However, the Commissioner agreed with the opinion rendered by the Doctor as to the disability and fixed the loss of earning capacity at 18%. No doubt, it is incumbent upon him to fix the loss of earning capacity. But, it is argued on behalf of the appellant that since the Doctor was not examined and his evidence as to the loss of earning capacity of the claimant, had not entered to records, no credence could be given to the disability certificate.
9. In this juncture, Mr.M.D.Poornachari, the learned Counsel for the appellant would place and rely upon the decision of the Honourable Supreme Court in 2007(1) TNMAC 214 (SC) in National Insurance Company Limited Vs. Mubasir Ahmed and Another, in which, Their Lordships, while dealing with the explanation to Section 4(A) of the Workmen Comp Act, held that in terms of Explanation II, the qualified Medical Practitioner has to assess the loss of earning capacity in relation to the different injuries in Schedule I. The view of the Honourable Supreme Court has to be followed in deciding the matter of assessment of loss of earning capacity. Hence, it is required that the evidence of the Doctor, who issued the disability certificate, must be on record to show the assessment of loss of earning capacity.
10. The learned Counsel for the respondent/claimant would draw support from the decision of the Division Bench of Kerala High Court judgment reported in 1993 ACJ 1035 in United India Insurance Company Limited and Others Vs. Sethu Madhavan and Others, wherein, it is observed that
Section 4 of the Workmen Compensation Act, enables to act upon the certificate, even without examining the Medical Practitioner and it would be open to the affected party to prove the conclusion reached by the Medical Practitioner as vitiated. He also cites a decision of the Division Bench of Himachal Pradesh High Court reported in 1999 ACJ 447 in State of Himachal Pradesh Vs. Uma Dutt and Others, in which, it is observed that neither of the Doctors, who are the members of the Medical Board, was produced to prove the medical certificate and no objection taken at the time of the medical certificate was produced and exhibited.
11. The main thrust of the argument of the learned Counsel for the claimant is that the Doctor need not be examined in order to prove the medical certificate nor to assess the loss of earning capacity of the claimant in view of the above said Division Bench decisions of the above said High Courts. However, in the light of the guidelines contained in the decision of the Apex Courts, in Mubasir Ahmed and Another as cited supra, it is held that in order to reach a definite conclusion in the matter of assessment of loss of earning capacity, the Medical Practitioner, who issued the disability certificate should be brought to the witness box and the relevant evidence must be extracted from him for passing the award.
12. In such circumstances, this Court is of the considered view that the case has to be remanded to the Authority below for a fresh disposal extending an opportunity to the claimants' side and to examine the Doctor, who has issued the disability certificate. Hence, the award challenged before this Court has to be set aside and it is, accordingly, set aside.
13. In fine, this Civil Miscellaneous Appeal is allowed, setting aside the award passed by the Deputy Commissioner of Labour, Madurai and the matter is remanded to the said Authority for fresh disposal, in accordance with law. The learned Deputy Commissioner of Labour shall offer ample opportunities to both sides to let in evidence to establish their respective claims in the light of the above observations in this judgment. No costs.
ssl To The Commissioner for Workmen Compensation, Madurai.