t e ge ^LPPELLANT CLAIMANT ^ ^ ^•.,"<»-^ ^ ...»•• w .^^. IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR M.A.m N0. 11^3 /2009 ^<fagannath Gupta @ Jagamath, S/o. Aklu Gupta, Aged about 41 years, R/o. ^Tl^ Behind Balaji Petrol Pump, Village •^. Bhanpuri, Tahsil & District Raipur (CG) VERSUS ^l^ Awadh Rai, S/o. Not known to the appellant, aged about 65 years, through: Rajesh Road Lines, Ring Road No.2, Bhanpuri, Tahsil & District Raipur (CG) The Oriental Insurance Company Limited, Town Branch Office No.l, Shyam Market, Jeevan Bima Road, Pandari, Raipur, District Raipur (CG) Crl^^ RESPONDENTS <ji/Non-Applicants APPEAL UNDER SECTION 30 OF THE WORKMEN'S COMPENSATION ACT 1923 \^ COURT OF AT MIS'C. APPEAL IQ No. AFPBLLANT Jagannafli Gupta @ Jagaiiiatli Awadh Rai another S.B.s-Hon. Sliri N.K. Agaiwal, J ' PRESENT:- Shii Manoj Paranjpe, Advocate, for appellant. None appears for respondeuts No. 1 aiid2, though served. ORAL ORDER (5-1-2010) Heard. 2. Instant appeal is dlrecte'd against the award dated 28-7-2009 passed by the Commissioner for Workman Compensation, Raipur in Case No. 76/WC Act/2002 (non-fatal) whereby and whereunder, an aniount of Rs. 97,940/- has been awai'ded m favour of the appellaiit/clainiant as coiiipensatiou as agaiust tlie 'aniount ofRs. 1^72,926/- claimed by hiin. 3. ' Shri Paranjpe, leaned counsel for the appellant would submit that tliougli fhe claiinaiit has stated in his clai'm petition his age as 37 years at the time of accident, but learned Commissioner has wrongly assessed the age of the claimant as 41 years at the time of accident based on his evidence, which is conti'aiy to lavv and second point raised by Pai'anjpe is that tiie claimaiit though sufiered non-scheduled inJLiiy resultiiig 50% peinianent disability as per fhe opinion of tlie doctor but looking to the facts and circumstances of tfae case, learned Commissioner ought to have assessed tlie loss ofeaiiiing capacity as 100%. 4. I have heard leamed couasel for tlie appellaiit. 5. It is settied positiou of law tliat eveiy aveiiiicnt in the claim petition has to be proved by cvidence. As.per claimant?s own cvidence^ the of the claimant at the tiiiie ofaccident was 41 years aiid, therefore, leaiiied ComBiissioner rigntly recorded a the of 2 ^ appellant as 41 years at tlie time of accident, riglitiy taken mto consideration the factor which is epplicable at the of41 years. 6. So far as second submission made by Shri Paranjpe is concenied, it is also sans substaace. The appellaiit has not examiaed any doctor to prove injur^ydisability/loss of eaming capacity. Leanied Commission based on tlie certificate ffled by tiie appeUant has assessed tiie disability as 50% and passed the award accordmgly. Although it is settled law that iftlieinjury is not provcd by examinmg tiie doctor, then, it caiio.ot be that fhe appellaat sustaiiied injuries resi.iltirig in permanent disability. 7. More over, as per Section 4(1) (c) (ii) of fhe Workman Compensation .Act, iii case of any iujiiry not specified iu scheclule I, such percentage of tlie compensation payable in fhe case of permanent total disablement as is proportionate to the loss of- eai"nmg capacity (as by 'tlie qualified medical practitioner) permaiiently caused by tlie injury. Since the doctor himseif not been examined by the appellant^- therefbre, it cannot be said tliat the appellaiit sustaiiied loss of eaiiiing capacity niore thaii what has been accepted by the Commissioner. 8. For tlie foi"tegoing reasons^ lu the considered opiniou of this Court, this appeal does not involve aiiy substantial question of law. Therefore, the appeal being devoid of substaiices is liable to be and is hereby dismissed at admission stage. Sd/- N.K. Agrawal Judge