D M NEW INDIA ASSURANCE CO LTD Vs. PUSPAKANTI PRAHARAJ

JUDGEMENT

(1.) This appeal by the Appellant-Insurance Company is directed against the judgment/award dated 18.6.2010, passed by the Commissioner for Workmen's Compensation, Orissa, Bhubaneswar, in of D. M., New India Assurance v. P. Praharaj W.C. Case No. 18 2001, awarding an amount of Rs. 4,89,240/-as compensation, to be deposited within one month, failing which penalty and interest will be imposed as per the provisions of the W.C. Act, 1923.

(2.) The main contention of the learned Counsel for the Appellant is that the Commissioner has assessed the loss of earning capacity of the claimant at 100% in a mechanical manner and without application of mind, especially when the treating physician (OPW 1) had stated in his evidence that there exists osteomylities and intermittently the claimant may face difficulty with pain. It is further submitted that as the claimant had only suffered fracture injuries and had been operated upon and the Medical Board as well as the treating Doctor had assessed the physical disability at 45%, the Commissioner erred in assessing the loss of earning capacity of the claimant at 100% and calculating the compensation amount on that basis.

(3.) Learned Counsel for the Appellant further submits that as the Driving Licence bearing No. 4472/86, issued by the Licensing Authority, Bhubaneswar, had been renewed on 19.7.2001, about one year and three months after the date of the accident, the injured claimant was not completely disabled and therefore the Commissioner erred in assessing the loss of earning capacity of the claimant at 100%. In this regard, it is submitted that as the claimant as the driver of a heavy goods vehicle (truck) was required to furnish medical certificate in proof of his ability to drive such a vehicle, at the time of renewal of the driving licence, the same goes to show that the claimant did not suffer 100% loss of earning capacity. It is further submitted that the assessment of the loss of earning capacity by the Commissioner has been mechanically arrived at without any basis and without considering the nature and extent of the disability suffered by the claimant due to the accident.