HLGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench : Hon'bie Shri Dilip Raosaheb Deshmukh. J. M.A.(ClNo.1024/2007 Appellant Sunil Jindal,S/o Shri H.P.Jindal,aged about 31 years, Occupation-Business, R/o Subhash Nagar, Kotra Road, Raigarh, Tahsil & District Raigarh Versus Respondents 1. Bhimsen Toppo S/o Stefhen Toppo, ^> Aged 30 years, Cast Uraon, Occupation Labour, R/o Dhimrapur, Tahsil & District Ralgarh (C.G.) 2. Commissioner, Workman Compensation Act, Labour Court, Raigarh. Miscellaneous Appeal under SectionSO ofWorkmen Compensation Act. 1923. Present : Shri Amit Sharma, counsel for the appellant. Ms. Sharmila Singhai, counsel for the respondent No.1. ORAL ORDER (Passedon 23 February, 2008) The appellant is aggrieved by an award dated 17-05-2007 passed by the Commissioner for Workmen's Compensation, Labour Court, Raigarh (henceforth "the Commissioner") in Case No.92/W.C.Act/2005/[Non-Fatal] wherefay compensatton of Rs.2,99,419/- was awarded. (2) This appeal involves the following substantial questions of law:- •Whether the order dated 17-05-2007 passed by the Commissioner for Workmen's Compensation, Labour Court, Raigarh in Case No.92/W.C.Act/2005 is liable to be set aside because:- (a) for want of medical evidence, the Gommissioner Was not justified in assessing liability to pay compensation under Section 4 sub section (1) sub clause (c) (II) of Workmen's Compensation Act, 1923? (b) Whether the principles of natural jusBce have been violated because sufficient opportunify to adduce evidence was not afforded to the appellant/employer?" (3) Shri Amit Sharma, leamed counsel for the appellant urged that the impugned award is liable to be set aside because as mandated by Section 4(1) (C) (II) of the Workmen's Compensation Act, 1923 (henceforth "the Act"), medical evidence to prove disability sustained in the accident was not adduced by the claimant. It was also urged that the disabllity certificate on which the Commissioner retied for awarding compensation was filed after recording the evidence of the claimant.It wasatso urged that not affording sufflcient opportunity for summoning witnesses for the employer, the Commissioner closed the caseon 17-04-2007, which is contrary to fte principles of natural justice. (4) On the other hand, Ms. Sharmila Singhai, learned counsel for respondent No.1 argued in support ofthe impugned award. (5) Having heard rival contentions, 1 have perused the record of Case No.92AA/.C.AeV2005/pMoh-Fatal]. The claimant's evidence was recorded on 21-09-2006 and the matter was adjourned to 30-10-2(M8. On 30-10-2006, the claimanthad fiied a disability certificate issued by the In- charge, C.H.C. Community Health Centre, Phareabahar showing Ihat the claimant had suffered 50% permanent disabillty and condition of the claimant was likely to improve. It also shows that the condition of the claimant is non-progressive. Both these conditions werecontrary. ./ (6) In Shyam Sunder Agrawal vs. Jawahar Prasad and others, decided by this Court in M.A.(C) No.40/2007 on 04th February, 2008, it was held that the words "the evidence of any medical witness shall be taken down as nearly as may be word for word" appearing in the second proviso to Section 25 makes it mandatory for the Commissioner to record ifC^.'^ H^P" •" -(• ,!? evidence of medical witness. It is for the ciaimant to establish the nature of disabitity suffered which could be done only by leading medical evidence. Section 4 (1) (C) (II) of the Act atso requires that the fact of permanent partial disablement as assessed by the qualified medical practitioner has to be taken into consideration. (7) !n Sub Area Man.ager, West Chirimiri Colliery, S.E.C.L. vs. Asith Kumar Guria, decided by this Court in M.A.(C.)No.27/2007 on 31st of August, 2007, it was held by this Court that without examining the doctor giving the certificate of disability in favour of the claimant and affording an opportunlty to the appellant/employer to cross-examine the medical witness on the question of disabllity, the finding recorded by the Commissioner that the claimant had suffered 95% disability due to accident could not be sustained as being contrary to law of natural justice. In both the cases mentioned above, the matter was remanded tothe Commissioner. !n view of the decision rendered by ttiis Court in abovementioned cases, the award passed by the Commissioner while recording the flnding of 50% permanent disability sustained by the ciaimant, is liabte to be set aside. (8) A perusa! of the record of Case No.92/W.C.AcV2005/[Non-Fatal] shows that the appellant/employer had paid process fee for issuance of notice to its witnesses Krishna Kumar and Kush Sharma. Although, the notice on Kush Sharma was served yet he did not appear. Another witness-Krishna Kumar wasnot served. Leamed counsel for the employer had prayed for an adjournment for producing the witnesses on the next date which was also turned down and the evidence of the employer was closed. 1 am of the considered opinion that before recording finding on tfie nature of disablement suffered by the claimant, the Commissioner ought to have recorded medical evidence in support of the fact of disablement ^>SIC ! .y^SSt, {.'.*' .-.i' 'd fi ^-?-.. ^ '^^^^*^^ ®^®»ES*i<i suffered by the ciaimant. Qne opportunity ought to have been granted by the CommissiQner to the employerto produce itswitnesses. (9) In the result, the appealis allowed. The impugned award passed by the Commissioner is set aside. The matter is remitted to the Commissioner for giving reasonable opportunity to the claimant for adducing medical evidence to prove the nature of disablement suffered by him and also for giving one opportunityto the emptoyer for producing his witnesses. After givingsuch opportunity to the parties, the Commissioner shall expeditiously decide the Case No.92/W.C.Act/2005/[Non-Fatal] preferably within a period of 3 months from the date of receipt of a copy of this order. On application, the amount deposited by the appellanVemployer before the Commissioner, shalt be refunded. Sdl- DUip Raosaheb Deshmukh Judge Tumane