1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.4808 of 2007 Union of India through General Manager, Central Railway, Mumbai, CST & ors. Petitioners Vs. Shri Abdul Latif Shaikh Respondent Mr.T.J.Pandian for petitioners. Mr.V.A.Londhe for respondent. CORAM: B.H.MARLAPALLE, J. February 11, 2008 ORAL ORDER: 1. Heard Mr.Pandian, the learned counsel for the petitioners. 2. Rule. 3. Mr.Londhe waives service for the respondent. 4. The petition is taken up for final hearing forthwith and more so because the accident claim compensation submitted by the respondent under the Workmen’s Compensation Act, 1923 ("the Act" for short) is still pending before the Commissioner for 2 Workmen’s Compensation and the Labour Court at Solapur. 5. The petitioners are aggrieved by an interlocutor order passed by the Commissioner for Workmen’s Compensation on 21/4/2007 and more particularly the following directions: "It is true the accident is dated 24.11.2005 and still applicant is facing injury pains to high right hand. As the applicant is not having faith to get operated from the Central Railway Hospital, he is at liberty to get operated from Dr. Pradip Ingale as per his Pursis filed at Ex. U-II as he is going to operate. He should produce on record the medical bill of his operation and the employer - opponent should pay the charges of his medical expenses. For his medical treatment the opponent should grant him special medical leave. The applicant is directed to do the follow up of injury and submit the report to this Court on the fixed Court date for the final 3 adjudication of this proceeding." . It was submitted by Mr.Pandian that the Central Railways have their own hospital and specialised services if required are available at the said hospital at Mumbai. On the face of these facilities being available, it is not left to the choice of the claimant to go to any private hospital and claim reimbursement from the railways. Mr.Pandian also pointed out that in an application submitted for claiming compensation for permanent total or partial disability, the Commissioner for Workmen’s Compensation has no such powers to deal with any supplementary issues and having regards to the scheme of Section 11 of the Act, the impugned order is without jurisdiction. 6. Section 3 of the Act deals with the employer’s liability for compensation and sub-section (1) of the said Section states that if personal injury is caused to the workman by an accident arising out of and in the course of his employment, the employer shall be liable to pay compensation in accordance with the provisions of Chapter II. It was pointed out by Mr. Pandian that despite the accident suffered by the 4 claimant, he has been drawing higher pay scale as of now and in fact the nature of duties assigned to the claimant in no way affects his health conditions and in addition his earning capacity has not been adversely affected. 7. It is noted from the record that when the respondent filed the claim petition, disability certificate was not brought on record and, therefore, there was no way to decide whether the claimant suffered any permanent disability. Under these circumstances, this Court by its order dated 11/9/2007 noted that the claimant was directed by the petitioners to report to the Medical Board at Solapur on 17th September 2007 and the Board was directed to decide the permanent partial disability on 19/9/2007. The Board met on 19/9/2007 and the claimant was examined by the Board. As per the written report submitted by the Chief Medical Superintendent, Solapur on 20/9/2007 the Board has assessed the permanent partial disability of the claimant at 25 per cent. The claimant has disputed the said opinion and Mr.Londhe, the learned counsel for the claimant has placed on record the medical certificate issued by Dr. K.R. Quadri, Consulting Orthopaedic and 5 Accident Surgeon at Solapur. As per the certificate issued by Dr. Quadri the permanent partial disability suffered by the claimant comes to 46.7 per cent and not 25 per cent as assessed by the Medical Board. 8. It is for the parties to lead evidence in support of the respective medical opinions determining the permanent partial disability percentage and in a writ petition this Court cannot adjudicate upon the medical opinion either way. Both these certificates will have to be decided on the basis of the oral and documentary evidence that will be placed before the Commissioner for Workmen’s Compensation by the respective parties and thereafter the claim petition will have to be decided by the Commissioner. In the mean while the order passed by the Commissioner and impugned in this petition cannot be sustained and in any case if on account of the subject injury the claimant requires medical treatment, Mr.Pandian has assured this Court that the Central Railways Hospital at Byculla, Mumbai will certainly attend to the same as and when the applicant approaches the authorities. 6 9. Hence the petition is allowed and the impugned order is quashed and set aside. It is directed that both the parties will appear before the Commissioner for Workmen’s Compensation and adduce oral as well as documentary evidence so as to determine the permanent partial disability percentage sustained by the claimant and on the basis of the evidence the Commissioner to consider the application filed by the respondent and presently pending. The said application shall be head and decided as expeditiously as possible and in any case before 30th April 2008. 10. Rule is made absolute accordingly with no order as to costs. 11. Writ to go to the Commissioner for Workmen’s Compensation and the Judge, 1st Labour Court at Solapur forthwith. (B.H.MARL