HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A.No.279 of 2005 JUDGMENT: The applicant in W.C. No. 93 of 2002 preferred this appeal against the orders dated 20.1.2005 passed by the court of Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour 1, Guntur, whereby and whereunder the application seeking compensation of Rs.1,50,000- for having suffered injuries in an accidental fall during and in the course of employment, was dismissed. 2. The brief facts of the case are that the appellant-applicant worked as Mutta Cooli of O.P.1 (Tobacco Bales of O.P.1). O.P.1 got insured its workmen for the injuries, death etc likely to be suffered during and in the course of their employment with O P2. The applicant was injured by fall while carrying tobacco bales during the course of his employment. He suffered injury to his hip region and back pain due to which he was unable to work. Therefore, he filed application before the lower authority claiming compensation of Rs.1,50,000/-. That he was aged about 30 years at the time of the accident i.e. on 18.8.2000. 3. That applicant got himself examined as AW.1 and he has reiterated the contents of his claim application during the course of examination. He also examined AW.2-Doctor who treated him for the injuries suffered in the alleged accident. The medical witness testifies that the appellant-applicant had suffered injuries as stated in Exs.A.5,A.6 and A.7- medical certificates. As per the said exhibits, appellant-applicant had suffered disc prolopsy at lumber level due to which his lower limbs were affected. That he was operated therefor on 22.8.2000. The evidence of AW.2-medical witness is to the effect that due to injuries, the appellant-applicant was unable to do manual work. 4. Taking into consideration the facts of the case as well as the evidence of RWs.1 and 2, the lower authority had dismissed the claim application. 5. The learned counsel for the appellant took exception to the observations made by the lower authority that the applicant did not suffer any visible injuries; that the lower authority also erred in not considering the testimony of medical witness-AW.2; that the lower authority also erred in discarding Exs.A.5 to A.7- medical certificates and that the lower authority ought to have considered Ex.A.9- copy of the insurance policy wherein the appellant-applicant was covered and as such the lower authority erroneously dismissed the claim application filed by the appellant-applicant. 6. On the other hand, it is the case of the second respondent-New India Assurance Company Limited that the appellant-applicant is not in the employment of O.P.1 since O.P.1 failed to supply with information called for by the insurance company as to the employment of appellant-applicant. The alleged accident also disputed for want of registration of F.I.R. It is specifically pleaded by the insurance company that when it called from O.P.1 certain registers such as employment register and wages register etc., they were not supplied with. It is alleged that the terms of the insurance policy were violated. It is alleged that medical witness-AW.2 who is stated to be treated the appellant-applicant the injuries suffered by him in the accident and who conducted an operation thereof could not suggest any percentage of disability being suffered by the appellant-applicant. With reference to the evidence of AW.2, it is contended that after completion of surgical procedure, the appellant-applicant was discharged and he was able to walk well without pain, and more over, O.P.1, the alleged employer admitted that there was no outward injury present on the person of the appellant-applicant. It is further case of the insurance company that the lower authority taking into consideration the above facts, was justified in dismissing the claim application of the appellant-applicant. It is contended that the injuries alleged to have been suffered by the appellant-applicant do not fall under the Schedule injuries as prescribed in the Workmen’s Compensation Act. It is pointed out that by the Amendment Act 22 of 1984 which came into force with effect from 1.7.84, (ii) of sub clause (c) of Explanation II of Section 4 was amended, as under: “in the case of an injury not specified in Schedule 1, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury”. 7. In view of the said amendment, it is contended that the judicial decisions rendered prior to amendment will not apply to the facts of this case. In this regard, a decision reported in New India Assurance Company Limited, Hyderabad v. Sammayya@ M.Shanker (Workman) and another [1] is relied on, which reads as under: “For the same reasons stated by me supra, I also hold that after the Amendment Act 22 of 1984, assessment of loss of earning capacity, in addition to the determination of the extent of permanent or partial total disablement, has become a ‘must’. In other words, before the Commissioner proceeds to determine the total compensation payable to an applicant U/s.4 of the Act read with Schedule-IV, he should have necessarily the assessment of the loss of future earning capacity of the applicant-workman duly assessed by a qualified Medical Practitioner. In this case, admittedly, there is no assessment of loss of earning capacity of the applicant-workman by any qualified Medical practitioner and there is only an assessment of permanent disablement determined at 50%. That itself is not sufficient for the reasons stated supra.” It is also contended that as per the provisions of Section 14 of the Workmen’s Compensation Act, 1923, the insurer becomes liable directly to the workmen of a company or partnership firm when the company or partnership is being wound up only. It is more so, when liability does not arise under the Motor Vehicles Act. In this case, it is submitted that O P.1 is a partnership firm and it is not dissolved, and as such, the workmen thereof would not have any right to proceed against the insurer. Therefore, the appellant-applicant has no right to proceed against the respondent-insuerer OP2 directly. At the most the insured- employer (OP.1) may claim reimbursement after paying the compensation to his workman if it is payable under the policy and the employer may opt for reimbursement of the same from the insurer. 8. By way of reply, the leaned counsel for the appellant-applicant relied on a decision reported in Pamarthi Subba Rao v. H.Rama Rao and another[2] and contended that the crucial question is not of specified injuries, but whether there was total disability to do the work, which the workman was doing at the time of the accident. The importance of medical evidence is only in case where such disablement cannot be decided without the aid of medical evidence. As such it is contended that the discretion of the court in awarding compensation is not controlled by the injuries contained in Parts 1 and II of Schedule-I. That medical witness AW.2 has in categorical terms stated that the appellant-applicant was unable to do manual work after the operation. Therefore, taking the same into consideration, the court by exercising discretion, can award reasonable compensation. 9. It is to be seen that when the information called for by the insurance company, O.P.1 failed to furnish registers like employment register and wages register etc. AW.2-Doctor stated that appellant- applicant was able to walk well without pain. AW.2 did not suggest any percentage of disability suffered by the appellant-applicant. Further, having regard to the decision reported in New India Assurance Company Limited, Hyderabad v. Sammayya@ M.Shanker (Workman) and another (supra 1) as well as Amendment Act 22 of 1984 which came into force with effect from 1.7.84, the contentions raised by the learned counsel for the appellant-applicant cannot be sustained. Therefore, this court is of the considered opinion that the impugned order does not suffer from any infirmity warranting interference from this court and the C.M.A. is liable to be dismissed. 10. Hence, the C.M.A. is dismissed. No order as to costs. ​ ​ _______________ B.N.RAO NALLA,J 18-11-2010 Stp 1995(3)ALT 470, Para 11 2 2008 (3) ALD 650 (DB)