Case Note & Summary
The appellant, National Insurance Company Limited, filed a Miscellaneous First Appeal under Section 30(1) of the Workmen's Compensation Act, 1923, challenging the judgment and order dated 12.01.2011 passed by the Labour Officer and Commissioner for Workmen's Compensation, Sub-Division-2, Belgaum, in W.C.A./S.R.155/2009. The Commissioner had awarded compensation of Rs.4,28,376/- with interest at 12% per annum from the date of petition till deposit. The claimant, Basappa S/o. Siddalingappa Ambali, was a driver of a lorry who lost vision in his left eye due to an accident arising out of and in the course of employment in 2009. The Medical Practitioner assessed disability at 30%, and the Schedule (Serial No.36 of Part II of Schedule I) prescribed a specific loss of earning capacity for such injury. However, the Commissioner assessed loss of earning capacity at 100% on the ground that the workman, being a driver, could no longer drive a lorry. The Insurance Company contended that the Commissioner erred in disregarding the medical assessment and the Schedule. The High Court, relying on the Full Bench decision in Shivalinga Shivanagowda Patil v. Erappa Basappa Bhavihala, ILR 2004 Kar 193, held that the Commissioner cannot assess loss of earning capacity without or in disregard of the assessment of a qualified medical practitioner. The Court found that the Commissioner's conclusion was not based on evidence of total disablement but solely on the workman's avocation. The appeal was allowed, the impugned award was set aside, and the matter was remanded to the Commissioner for fresh assessment in accordance with law, considering the medical evidence and the Schedule.
Headnote
A) Workmen's Compensation - Loss of Earning Capacity - Assessment - Section 4(1)(c) Workmen's Compensation Act, 1923 - The Commissioner assessed 100% loss of earning capacity for a driver who lost vision in one eye, disregarding the medical assessment of 30% disability and the Schedule prescribing loss of earning capacity. The High Court held that the Commissioner cannot assess loss of earning capacity without or in disregard of the assessment of a qualified medical practitioner, and must consider the Schedule. The award was set aside and remanded for fresh assessment. (Paras 2-4) B) Workmen's Compensation - Loss of Earning Capacity - Medical Evidence - Section 4(1)(c) Workmen's Compensation Act, 1923 - The Full Bench decision in Shivalinga Shivanagowda Patil v. Erappa Basappa Bhavihala, ILR 2004 Kar 193, held that the Commissioner cannot assess loss of earning capacity without medical evidence. The High Court applied this principle and found that the Commissioner's conclusion of 100% loss was not based on evidence but solely on the workman's avocation as a driver. (Paras 3-4)
Issue of Consideration
Whether the Commissioner for Workmen's Compensation was justified in assessing the loss of earning capacity at 100% as against the medical assessment of 30% disability, in consonance with the injuries mentioned at Serial No.36 of Part II of Schedule I of the Workmen's Compensation Act, 1923.
Final Decision
Appeal allowed. Impugned award set aside. Matter remanded to Commissioner for Workmen's Compensation for fresh assessment in accordance with law, considering medical evidence and Schedule I of the Workmen's Compensation Act, 1923.
Law Points
- Loss of earning capacity under Workmen's Compensation Act must be assessed based on medical evidence and Schedule
- not solely on avocation
- Commissioner cannot disregard medical assessment without proper evidence
- Full Bench decision in Shivalinga Shivanagowda Patil v. Erappa Basappa Bhavihala governs assessment of loss of earning capacity.
