DIVISIONAL MANAGER Vs. KAMESH CHANDRA PATRA

JUDGEMENT

(1.) THE award of compensation made by the Commissioner for Workmen's Compensation, Ganjam, Barhampur (in short, the 'Commissioner') while disposing of a claim petition filed by respondent No. 1 (hereinafter referred to as the 'claimant') is subject -matter of challenge in this appeal under Section 30 of the Workmen's Compensation Act, 1923 (in short, the 'Act').

(2.) THE claim petition by the claimant was filed with the following averments: Claimant was conductor of a bus bearing registration No. OSS 8586, owned by respondent No. 2 (hereinafter referred to as the 'owner'). On 24.2.1994 at about noon time the said bus was plying from Gaiba to Rayagada. While the claimant was collecting fare from the passengers, suddenly the back gate of the bus flew open and he fell down from the running bus. He was admitted in the private dispensary of Dr. Ranga Rao of Banerjee Clinic at Parlathamudi by the conductor and cleaner of the bus bearing registration No. OSP 1963, and afterwards he was shifted to M.K.S.S. Medical College Hospital for better treatment. As a result of the accident, he sustained multiple injuries on different parts of his body, mainly on the left eyebrow and left thigh. He was unable to walk without the aid of clutches and unable to do any work withoutassistance. Injuries sustained by him in the accident led to his permanent disability. He was getting Rs. 1500/ - per month towards wages in addition to fooding expenses. He was aged 32 years at the time of accident. Though he claimed compensation from the owner, he was paid only Rs. 10,000 -towards treatment, but no compensation was paid towards his disability. The owner filed written statement denying the liability to pay compensation on the ground that though the accident took place in course of employment of the claimant in the vehicle, he had arranged his treatment at Berhampur and met expenses of more than Rs. 10,000/ -. According to him, monthly wages of the claimant was Rs. 1,000/ - excluding daily feeding expenses of Rs. 20/ -. It was stated that the bus bearing registration No. OSS 8586 was subject matter of insurance with M/s. United India Insurance Co. Ltd. (hereinafter referred to as the 'insurer'), the appellant in this appeal, and therefore, liability if any was to be indemnified by the insurer.

(3.) IT is submitted by the learned Counsel for insurer that the course adopted by the Commissioner was rather unusual. Interestingly, the Doctor who allegedly issued the disability certificate was not examined as a witness. In any event the percentage of disability cannot be equated with the percentage of loss of earning capacity, as they are conceptually different. In the aforesaid premises, the award as made is, therefore, not sustainable. The learned Counsel for the claimant on the other hand supported the award.