Divisional Manager vs Akshya Das And Another
2022 Latest Caselaw 5330 Ori

     IN THE HIGH COURT OF ORISSA AT CUTTACK

                           FAO No.954 of 2019
(From the judgment dated 15th May, 2019 passed by the Commissioner
for Employee's Compensation-cum-Divisional Labour Commissioner,
Cuttack in E.C. Case No.12-D /2012)
                              ----------

Divisional Manager, National
Insurance Company Limited.                      .......         Appellant

                                       Versus

Akshya Das and another                          ......        Respondents


Advocate(s) appeared in this case :-
        For Appellant            :       Mr.P.K.Mahali, Advocate

        For Respondents          :       Mr. S.C.Pradhan, Advocate
                                         (for Respondent No.1)



                     CORAM : JUSTICE B.P. ROUTRAY

                              JUDGMENT

10th October, 2022 B.P. Routray,J.

1. Present appeal by the Insurer is directed against the impugned

award/judgment dated 15th May, 2019 passed by the Commissioner for

Employee's Compensation-cum-Divisional Labour Commissioner,

Cuttack passed in E.C. Case No.12-D /2012, wherein compensation to

the tune of Rs.16,01,224/- including interest has been granted in favour

of the claimant on account of injuries sustained by the claimant in course

of his employment as a helper in the truck bearing Registration No.OR-

09-P-6005.

2. The main challenge of the Insurer is against the assessment of

permanent disablement to the extent of 70% resulting 100% loss of

income. It is contended on behalf of the Insurer that the assessment made

by the Commissioner to the extent of 100% loss of earning capacity is

erroneous and needs to be revisited.

3. The case of the claimant is that he was working as a helper in the

truck bearing registration no. OR-09-P-6005 on 19th June, 2011. The said

vehicle dashed against a roadside tree resulting severe injuries to the

claimant. His left leg was fractured with multiple injuries and he was

shifted to S.C.B. Medical College and Hospital, Cuttack and remained

there as an indoor patient for more than fifteen days. As per the disability

certificate issued under Ext.5 by Jajpur Medical Board, his right foot was

amputated and permanent disability was to the extent of 70%.

4. The owner admitted the accident and sustenance of injuries by the

claimant in the said accident. He also admitted employment of the

claimant in the truck as a helper and stated payment of remuneration to

him to the tune of Rs.6,000/- per month.

5. The employment of the claimant as a helper in the truck and the

validity of the insurance policy are never disputed by the Insurer-

Appellant. The Commissioner thus accepting his employment and

remuneration as such, computed the compensation amount with 100%

loss of earning capacity.

6. Considering the limited challenge for the Insurer, a relook to

Schedule-1, Part-II of the Employees Compensation Act, 1923 reveals

that at serial no.3 such amputation is measured at 70% loss of earning

capacity. But the doctor examined on behalf of the claimant before the

Commissioner has stated that the nature of injuries in the accident

leading to permanent disability of the claimant would result 100% loss of

his earning capacity. So based on the said evidence of the doctor, the

Commissioner has opined about 100% loss of earning capacity and

accordingly, arrived the compensation amount. It needs to be mentioned

here that as per the disability certificate under Ext.5, the permanent

disability is Post Traumatic Amputation of right foot with stiff knee.

7. It is seen that admittedly the doctor, Anadi Charan Naik (PW2) is

not an Orthopedic Specialist. He is a doctor, who appears to be examined

on behalf of the claimant in most of the workmen compensation cases at

Cuttack and Bhubaneswar. Though the qualification of said P.W.2 as a

doctor is not disputed, but his special knowledge in orthopedic treatment

has not been brought on record. Thus his statement cannot override the

statutory prescription of extent of loss of earning capacity mentioned in

the schedule of the EC Act. Therefore, the computation of the

Commissioner taking 100% loss of earning capacity is liable to be

modified.

8. Since the other aspects like employment, age and income of the

claimants is not in dispute, the compensation is modified to the effect

that; 60% of monthly wages of Rs.6,000/- x 219.95(age factor) x 70% =

Rs.5,54,274/-. The amount of medical expenses to the tune of

Rs.58,325/- incurred by the claimant as has been counted by the

Commissioner is to be added in the compensation amount. Accordingly,

the total compensation of amount comes to Rs.6,12,599/-, which is

payable by the Appellant-Insurer along with interest at the rate of 12%

per annum from the date of accident, i.e. 19th June, 2011.

9. It is submitted that the entire compensation amount in terms of the

direction of the Commissioner has already been deposited before him by

the Appellant-Insurer.

10. In the result, the appeal is disposed of with a direction to the

Commissioner to disburse the modified compensation amount of

Rs.6,12,599/- in favour of the claimant along with interest @12% per

annum from the date of accident till the date of deposit made by the

Insurer before the Commissioner. Such amount be deducted from the

amount already deposited by the Insurer-Appellant before the

Commissioner and be paid to the claimant with accrued interest thereon

within a period of two months from today and the balance amount be

refunded to the Insurer-Appellant with proportionate accrued interest.

However, the direction of the Commissioner for payment of penalty to

the extent of 50% is waived.

11. The L.C.Rs be returned forthwith.

(B.P.Routray) Judge

C.R.Biswal/Secy.