AMITAVA ROY, J. - (1.) THE present appeal witnesses a challenge to the judgment and order dated 05.09.2006, passed by the learned Commissioner of Workmen's Compensation, Nagaon (for short hereafter referred to as the Commissioner) in Case No. NWC 364/2001, awarding an amount of Rs.2,65,644/- as compensation payable to the respondent No.1/claimant by the appellant-insurer.
(2.) I have heard Mr. D. Mazumdar, learned counsel for the appellant and Mr. M.K. Choudhury, learned counsel for the respondent No.1/claimant. The aforementioned case was registered under the Workmen's Compensation Act, 1923 (for short hereafter referred to as the Act) on an application filed by the respondent No.1/claimant, claiming compensation for the injuries sustained by him in an accident involving vehicle No. AS-02/A-4106 in course of his employment . He claimed himself to be an employee of the respondent No.2 at the relevant point of time and engaged as handyman in the said vehicle. He disclosed that at the time of accident, his vehicle was insured with the appellant. He averred that on 11.06.2001 at about 3.20 a.m., while he was proceeding in the vehicle, a bus, from Doom Dooma to Guwahati, it met with an accident at Baraligaon under Samguri Police Station and as a result, he sustained multiple injuries on his person. He suffered fracture of his left leg and right hand for which he was initially treated by Dr. Sadullah, Ex-Medical and Health Officer, BPCH, Nagaon, but as he did not recover, he was rendered unable to perform any physical labour and became permanently disabled. While stating that at the time of the accident, he was aged 22 years and was drawing a wage of Rs.2000/- per month and Rs.100/- as daily allowance from the respondent No.2, he stated that his employer having refused to pay him the compensation for the injuries sustained, he initiated the proceeding under the Act. The respondent-owner, while admitting that the claimant was at the relevant time employed as helper/handyman in the vehicle owned by him, denied his liability to pay any compensation, as the vehicle, at the time of the accident, was insured with the appellant. He, however, admitted that the claimant had sustained injuries in the accident. He did not deny the salary and daily allowance by the claimant. The appellant insurer in its written statement denied its liability. The respondent No.1/claimant in support of his claim examined himself, in course of which he, inter alia, stated to have taken treatment from Dr.Sadullah and thereafter from Dr. Dilip Baruah. He stated that as per the advice of his attending doctors he got the X-ray examination of the injured parts of his body done and affirmed that even after the removal of plaster of his fractured left leg and right hand, he was neither in a position to walk without help nor do any work. He proved the medical documents Exts. 1 to 13 and also the X-ray plates, Material Ext.1. The respondent No.1/claimant also examined Dr. Dilip Baruah, retired Joint Director as his witness to prove his disablement from the injuries suffered by him. The salient features of the testimony of this witness having a considerable bearing on the adjudication are enumerated hereinbelow :- (1) A. Physical findings - (a) Dark pigmented patch on right I.F. for identification. (b) Chronic post traumatic Osteo Arthritis of the left ankle for which the patient cannot bear body weight on left limb properly. (c) Chronic post traumatic Osteo Arthritis of the left knee for which he cannot flex the joint properly. (d) Chronic post traumatic Osteo Arthritis of the right wrist and right elbow for which he cannot work with his right upper limb properly. (e) Secondary PT of the left hip for which he cannot squat on the ground properly. (f) Chronic PT lumber disc lesion for which he cannot bend forward. (2) He examined all relevant medical documents issued by Dr. Sadullah w.e.f. 11.06.2001 to 12.07.2001 and treated the patient on 13.07.2001 for swollen left knee, heam Arthrosis of left knee, painful swollen right elbow. (3) He finally examined the patient on 13.09.2002 and issued Ext.2, whereas, he assisted his disablment as under :- "Left ankle component - 10% Left knee component - 5% Left hip component - 10% Spinal Component - 15% Right wrist component - 5% Right elbow component - 5% 50% (fifty percent)". (4) For these disablement the claimant's earning capacity would be reduced by 50% and that he would not be able to perform his earlier job as handyman. No evidence was adduced by the opposite party in the claim proceedings.
(3.) ON the basis of the pleadings and the evidence, the learned Commissioner concluded that the respondent claimant was entitled to an amount of Rs.2,65,644.00 as compensation under the Act for the injuries sustained by him. As the vehicle involved, at the relevant point of time, was insured with the appellant, the learned Commissioner held it liable for payment of the amount awarded. In arriving at the above figure, the learned Commissioner assessed the age of the respondent claimant to be 22 years as per the medical documents and his salary to be Rs.4000/- per month. The following formula was applied : 60% x 4000 x 221.37 x 50% = 2,65,644 Mr. Mazumdar has argued that the impugned award is liable to be interfered with on several counts. As by no means the daily allowance payable to the respondent claimant could have been included in his monthly salary to workout his wages under the Act, the computation resorted to by the learned Commissioner is patently erroneous. According to the learned counsel, limb wise assessment of disabilities is impermissible in law and, therefore, the medical opinion that the respondent claimant suffered 50% permanent disablement out of the injuries sustained by him is grossly wrong and cannot be acted upon. As none of the injuries cited by PW 2 had resulted in permanent disablement, the learned Commissioner fell in error in computing the amount of compensation. Mr. Mazumdar emphatically urged that the assessment of loss of 50% of the earning capacity of the respondent claimant has no basis whatsoever and on that count as well, the impugned award is liable to be set aside. To reinforce his submission, the learned counsel has placed reliance on the decision of the Apex Court in Rajkumar Vs. Ajay Kumar & Anr., (2011) 1 SCC 343.;