- (1.) THIS civil misc. appeal has been filed under Section 30 (1) of the Employees' Compensation Act, 1923 (hereinafter 'the Act of 1923') against the judgment dated 11.01.2010, passed by the Employees' Compensation Commissioner, Jaipur District II Jaiupr (hereinafter 'the learned Commissioner') whereby the respondent -claimant (hereinafter 'the claimant') has been awarded a compensation of Rs.4,99,152/ - along with interest @ 12% p.a. from the date of accident till the date of payment.
(2.) HAVING heard the counsel for the parties, I am of the considered opinion that in the facts of the case the following substantial questions of law arise in this appeal for consideration of this Court : (i) Whether WC Commissioner is justified in enhancing loss of earning capacity to the extent of 100% when permanent disability has been assessed @ 29% by qualified medical practitioner ? (ii) Whether WC Commissioner is justified in enhancing loss of earning capacity to the extent of 100% when injuries and disability sustained by claimant is not one which falls under the ambit of "permanent total disablement" which renders claimant or workman completely ineligible to perform his work ? (iii) Whether WC Commissioner on his own can enhance the loss of earning capacity in absence of assessment by the concerned Doctor who determined the permanent disability of the injured -claimant ?
(3.) MR . Vigyan Shah, appearing for the appellant -non -claimant -employer (hereinafter 'the non -claimant') submits that the Doctor who issued the disability certificate was not examined. He further submits that even though the injury to the claimant was a non -scheduled injury yet the loss of income was not assessed by the Doctor. However the learned Commissioner on his own ipse dixit without anything more proceeded to conclude that the claimant had suffered 100% loss of earning capacity. Counsel has relied upon the judgment of this Court in the case of NIC Vs. Jitendra Kumar, SBCWP No.2473/2004 decided on 21.01.2014, to contend that for one, extent of permanent disability is not synonymous with loss of earning capacity. Further, that even otherwise there is no liner connect between the permanent disability suffered, the consequential functional disability and the resultant loss of earning capacity as the whole issue depends upon interplay of multiple factors. He submits that the impugned award dated 11.01.2010 is peremptory and no reasons have been assigned as to why and in what circumstances the permanent disability of 29% attributed to the claimant under the medical certificate which was not even proved by the Doctor who issued it, could result in 100% loss of earning capacity. It is also pointed out that the medical certificate dated 28.04.2004 (Ex -3) has in fact been issued belatedly by a Doctor, who did not treat the claimant for the alleged injuries suffered by him. Mr. H.C. Saini, appearing for the claimant submits that the medical certificate dated 28.04.2004 (Ex -3) was issued by a Doctor working at a government dispensary i.e. Harvansh Kanwatia Rajkiya Chikitsalay, Jaipur. He submits that in this view of the matter, there is no occasion to suspect the authenticity of the said certificate even though the Doctor was not examined as a witness. Counsel further submits that the claimant suffered 29% permanent disability due to injury to nerves entailing loss of power in the hip joint and the knee joint owing to which the Doctor had opined that the injured was thus "unable to work".;