NEW INDIA ASSURANCE CO LTD Vs. CHITTARANJAN SANDHA

JUDGEMENT

(1.) THIS is an appeal under Section 30 (1) of the Workmen's Compensation Act, 1923 (hereinafter called 'the Act') in which the insurer has challenged the order of the Assistant Labour Commissioner cum-Commissioner for Workmen's Compensation. By the impugned order the Commissioner has awarded a sum of 39,324. 60 as compensation in favour of respondent No. 1.

(2.) THIS appeal was heard along with M. A. No. 571 of 1992 because both the matters arose out of the same incident dated February 20,1992 in which truck bearing registration number OAG 364 was involved and respondent No. I like the claimant in the other case was a coolie. Respondent No. l claimed compensation of Rs. 70,000/- on the allegation that the incident took place in couse of his employment and he was getting Rs. 900/- per month as wages and was aged about 24 years at the time or the accident. Dr. B. K. Das who had opined in the connected appeal was also a witness in this case. He stated that on July 23, 1992 the respondent presented himself before him complaining pain, swelling and stiffness of his left wrist, left ankle and right knee. The doctor had found mal-united colles left side, condylar fracture of right tibia with post traumatic synovitis of the right knee. According to the doctor due to the aforesaid stiffness of both legs and wrist he was not able to walk properly and not able to squat on the floor. Considering the nature of injuries the doctor assessed the percentage of disability of respondent No. l to be 40 percent which is permanent in nature. The Commissioner in the circumstances awarded total compensation of Rs. 39,324. 60 by calculating as follows. : "rs. 450/-x Rs. 218. 47 (age factor of 24 years) X 40 = Rs. 39,324. 60

(3.) ADMITTEDLY the doctor who was examined as p. w. 2. assessed the percentage of disability to be 40 percent without keeping in view the provisions contained in Section 4 (1) (c) (ii) Explanation II of the Act. It is also an admitted fact that the injuries sustained by respondent No. 1 do not find place in the list of Schedule I of the Act. For the reasons already indicated in Misc. Appeal No. 571 of 1992, the compensation assessed in the present case by the Commissioner is vitiated. The order is accordingly set aside.