Gauhati High Court: Suman Shyam, J. dismissed an appeal filed by an insurance company against the order of the Commissioner directing payment of compensation to an employee for permanent disability endured during his employment, as a result of an accident.

In the present case, the respondent met with an accident while driving an insured vehicle, and resultantly he suffered many injuries. The respondent filed a case for payment of compensation before the Workmen Compensation Commissioner, for compensation on the ground that the injuries suffered by him in the accident had resulted into his permanent partial disablement leading to loss of his earning capacity. The Commissioner awarded the payment of Rs 1,71,234 to the respondent after taking into consideration his monthly salary of Rs 3500 and the testimony of the doctor according to whom, the respondent had suffered 25 per cent permanent disability reducing his earning capacity by about 40 per cent. The present appeal had been made by the insurance company against the order of the Commissioner, Workmen Compensation under Section 30 of The Workmen Compensation Act, 1923. 

The learned counsel for the appellant, M. Choudhury, contended that the payment of compensation for loss of earning capacity cannot be worked out on the basis of mere assumption of a doctor, i.e., the doctor has only got a speculative role in deciding the percentage of loss in the income of the respondent/claimant. Furthermore, the salary of the respondent should not be taken into consideration while the calculation of the compensation. She also placed reliance on the judgment of Oriental Insurance Company Ltd. v. Bimal Pathar, 2017 SCC OnLine Gau 1292.

The learned counsel for the respondent Rajbarbhuiya contended that the credibility of the testimony of the witness doctor was never questioned or challenged by the appellant. before the Commissioner. He further said that the plea of the appellant should not be entertained, keeping in mind the beneficial object of the Act.

The Court observed that the daily allowance earned by a workmen can be taken into consideration while calculating the compensation. It was opined that the case of Oriental Insurance Company v. Bimal Pathar, 2017 SC OnLine Gau 1292,  itself gave this principle and the reliance of the appellant’s counsel on the given case mitigated the scope of dissent in this regard. It was further observed that the testimony of the doctor in the present case, was not merely speculative in nature. The same had been substantiated through X-ray reports and further fortified through the disability certificate presented by the respondent.

It was opined that though this Court was the court of the first appeal in this matter by virtue of Section 30 of the Act, it would not entertain a factual dispute which was not even raised by the appellant herein, at the time of the trial. Thus, the appeal was dismissed and payment of the balance amount to the respondent was ordered within six weeks.[United India Insurance Company v. Naren Deka, 2019 SCC OnLine Gau 2259, decided on 07-05-2019]

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