UNITED INDIA INSURANCE CO LTD Vs. RAJEEV

JUDGEMENT

(1.) Appellant insurance company is questioning the award of the Commissioner for Workmen's Compensation. Respondent No. 1 met with an accident during the course of his employment under the respondent No. 2 and as per Exh. A-5 certificate he sustained the following disabilities:

(2.) It is the contention of the appellant insurance company that when qualified medical practitioner has assessed the loss of earning capacity, Commissioner cannot award compensation more than that was mentioned in the certificate in view of section 4 (1) (c) (ii) of the Workmen's Compensation Act, 1923 (hereinafter referred to as 'the Act') as held by the Full Bench of this court in New India Assurance Co. Ltd. v. Sreedharan, 1995 ACJ 373 (Kerala). In the above case, the Full Bench of this court only held that Commissioner cannot ignore the opinion of the qualified medical practitioner and he cannot assess loss of earning capacity arbitrarily. If he is disapproving with the assessment of qualified medical practitioner, he can send the worker for assessment by a Medical Board also when the injury is not a scheduled injury. Here, loss of earning capacity was not assessed by the qualified medical practitioner. Exh. A-5 shows that the doctor has assessed only percentage of physical disability and not loss of earning capacity. Exh. A-5, medical certificate, clearly points out that he cannot drive vehicles in future and he has got malunited fracture of frontal bone and there is severe disfigurement of his face.

(3.) Section 4 (1) (c) (ii) of the Act deals with computation of compensation where permanent partial disability results from the injury not specified in Schedule I. In other words section 4 (1) (c) (ii) which requires assessment of loss of earning capacity by a qualified medical practitioner applies only if the injury is not specified in Schedule I. Section 4 (1) (c) (ii) reads as follows: