NEW INDIA ASSURANCE CO LTD Vs. SREEDHARAN

JUDGEMENT

(1.) APPELLANT (New India Assurance Company) is the third opposite party in W. C. C. 118 of 1988 before the Deputy Labour Commissioner (Commissioner for Workmen's Compensation), Kozhikode. First respondent (applicant) filed application under Section 22 of the Workmen's Compensation Act, 1923 (referred to as 'the Act' for brevity) claiming compensation for personal injuries sustained by him on November 14, 1987 during the course of his employment as driver in the Autorikshaw KED-1232 owned by the second respondent. Applicant sustained injuries including fracture of tibia and fibula. Second respondent admitted the employment of the applicant as his driver. The accident is also admitted.

(2.) THIS is a case where the qualified medical practitioner certified the percentage of the disability and the Commissioner did not accept the same. Commissioner fixed 100% loss of earning capacity and on that basis determined the compensation. Applicant's contention is that the compensation determined by the Commissioner is without jurisdiction. It is contended that in terms of Section 4 (1) (c) (ii) of the Act the Commissioner has no jurisdiction to fix percentage of disability at variance with the percentage of disability certified by qualified medical practitioner. According to the appellant, Commissioner has no discretion in the matter and as the very section itself states that the compensation has to be assessed on the basis of the loss of earning capacity as assessed by the qualified medical practitioner and where he certifies the percentage of loss of earning capacity the Commissioner is bound to accept the same.

(3.) APPLICANT's contention is that Commissioner being the authority to fix the compensation under the Act has to fix the loss of earning capacity on the basis of which compensation is to be awarded. It is stated that where the qualified medical practitioner has not certified the percentage of the loss of earning capacity, the Commissioner can really fix the same on other evidence. Applicant's stand is that the certificate issued by the qualified medical practitioner, is only a piece of evidence just like other evidence and it is for the Commissioner to judge its probative value and effect.