MFA 25/2004 BEFORE THE HON’BLE MR. JUSTICE AC UPADHYAY JUDGMENT & ORDER (ORAL) This appeal under Section 30 of the Workmen’s Compensation Act, 1923 is directed against the judgment and award dated 13.10.2003, passed by the learned Commissioner, Workmen’s Compensation, Ulubari, in W.C. Case No.264 of 20 02, whereby a sum of .1,77,903/-(rupees one lakh seventy seven thousand and nin e hundred three) was awarded to the claimant-respondent No.1, for the injuries s ustained by him in a motor vehicular accident. 2. Heard Mr. S.S. Sarma, learned senior counsel for the appellant-I nsurance Company, and Mr. S. Dutta, learned counsel appearing for the respondent s. 3. Facts, leading to the filing of this appeal, may be stated in br ief, as follows:- The claimant-respondent was employed as a driver for driving of a vehicle bearing No.AS-15/1036(Bus) of Sri Mahananda Kr. Pathak, respondent No. 2. On 13.06.2002 at about 3.45 pm, while the aforesaid vehicle was driven by the claimant-respondent from Barpeta towards Barpeta Road with passengers, suddenly , the vehicle met with an accident and capsized by the side of the PWD Road at D uttakuchi, due to failure of steering of the bus. 4. Due to the said accident the claimant-respondent sustained fract ure injuries on his left hand, left leg and other injuries on his head as well a s on different parts of his body. Immediately after the accident, he was taken t o Dr. Hasmat Ali, a senior Medical and Health Officer of Howly PHC, wherefrom, h e was referred to Barpeta Civil Hospital, where he was examined by Dr. SC Sarma, Sub-Divisional Medical & Health Officer and on advice, X-ray was carried out an d plaster was applied to his left hand. He had to undergo treatment at Barpeta C ivil Hospital, for a long time but he did not recover fully from the injuries ca used due to the fracture on his left hand and, as a result, he could not even mo ve the steering wheel and gear lever of a vehicle. As a result of which the owne r of the vehicle, terminated him from service due to his inability to perform hi s duty. 5. On receiving a claim petition filed by the claimant-respondent, notices upon the owner of the vehicle as well as the Insurance Company, were iss ued. 6. The owner of the vehicle, by filing written statement along with vehicular documents, admitted the employment of the claimant-respondent as driv er of his vehicle and also admitted that the accident had taken place during the course of his employment. Respondent No.2 also admitted that the claimant-respo ndent had valid driving licence at the time of accident. The respondent No.2 fur ther admitted that at the time of accident, the claimant-respondent was paid 5, 000/-(rupees five thousand) per month as salary including other allowances. The owner of the vehicle also stated that after the accident, due to inability to pe rform his duties, the driver of the vehicle was removed from service. 7. The appellant-Insurance Company filed written statement denying the accident and also raised objection on the occupation, age and monthly wages of the claimant-respondent. 8. On careful scrutiny of the materials on record and the evidence on record, learned Commissioner for Workmen’s Compensation, assessed the income of the claimant-respondent as 4,000/-(rupees four thousand) per month and con sidering the age, percentage of disability and loss of earning capacity at 35%, etc. awarded a sum of .1,77,903/-(rupees one lakh seventy seven thousand and ni ne hundred three). 9. Mr. SS Sarma, learned senior counsel for the appellant-Insurance Company has submitted that learned Commissioner for Workmen’s Compensation arbi trarily fixed the loss of earning capacity @35% to the claimant-respondent, just for a fracture of the left hand. Learned counsel further pointed out that a sim ple fracture injury is curable by application of plaster over it from 6 to 8 wee ks and it takes more two/three weeks to regain strengthen and mobility. Therefor e, there is no question of awarding such a huge amount of public money as compen sation by assessing the loss of earning capacity @35%. 10. On the basis of the submission so made by the learned counsel fo r the appellant-Insurance Company, I hereby formulate the following substantial question of law for just decision of the case: ’Whether the compensation awarded by the learned Commissioner for Workmen’s Comp ensation, treating the loss of earning capacity @35% is too unjust, unfair and e xorbitant?’ 11. To answer the above substantial question of law, we turn back to the evidence of Doctor. It appears that the claimant-respondent sustained the f ollowing injuries: (1) A deep contusion over left elbow joint, X-ray shows fracture of olecranon p rocess of left ulna, (2) A lacerated injury over occipatal region of scalp (3) A bruise on left foot. The injury No.1 is grievous which is permanent and partial in nature. 12. If we scan the materials on records, it is quite evident that th e workman sustained injuries in an accident arising out of his employment and su stained such an injury, which caused him incapable of doing his job. Due to the injury he could not even handle the gear lever of the bus and move the steering wheel of the bus, and admittedly, the owner of the vehicle terminated him from s ervice due to his non-ability to drive the bus. In other words, he lost his job. The evidence of the doctor specifically indicates that the workman became incap able of continuing with his earlier job due to the fracture injury. The doctor, who examined the workman categorically, specified that he had issued the disabil ity certificate on the basis of physical examination of the claimant-respondent. 13. However, learned Commissioner for Workmen’s Compensation assesse d the loss @ 35% instead of 45% as indicated by the doctor on the assumption tha t the claimant-respondent would be able to do some other lighter jobs other than driving, and accordingly, assessed the loss of earning capacity @35%. 14. Though the owner of the vehicle admitted that the claimant-respo ndent was given .5,000/-(rupees five thousand) per month as salary, however, le arned Commissioner for Workmen’s Compensation assessed the monthly salary of the claimant-respondent at the rate of .4,000/-(rupees four thousand) per month in terms of the provision of Section 4(1) of the Workmen’s Compensation Act, 1923. Learned Commissioner for Workmen’s Compensation, while considering the age of t he claimant-respondent, who was 28 years old at the time of the accident, calcul ated the loss of his earning capacity and computed the compensation at the rate of .1,77,903/-(rupees one lakh seventy seven thousand and nine hundred three). 15. On careful consideration of the facts and circumstances as discu ssed above, it appears that the claimant-respondent, after the accident, was ren dered jobless; there was no certainty whether he would be getting a job of a dri ver in future. There was no certainty that there would be any recovery from the injury in question in future, therefore, the assessment of the loss of earning c apacity that was made by the learned Commissioner, Workmen’s Compensation on the basis of the disability assessed by the medical expert, does not appear to be e xorbitant, unjust and unfair. Rather, the compensation is just and fair consider ing the injuries sustained by the workman-claimant respondent. Moreso, the Insur ance Company did not challenge the certificate of disability proved by the atten ding physician of the injured. 16. Therefore, I find no reason to interfere with the finding of the learned Commissioner, Workmen’s Compensation, and accordingly, the substantial question of law is decided in the negative against the appellant-Insurance Compa ny. 17. The appeal accordingly stands dismissed. However, considering t he facts and circumstances, I pass no order as to cost. Send back the lower Cour t’s record immediately.