c^" l //y/ ^& •;.«-M£:(-? ^ Pankaj Reddy S/o Surya Prasash Raddy R//o Link Road Jebak Chal Bilaspur (C.G) 1. Dharam.chand Tiwari Vehicle owner Vehicle No. CG10F 4295 Mr. Tiwari Provision Stores Vinoba Nagar, Bilaspur (C.G.) 2. The New India Insurance Co. Ltd. Through- Banch Manager The New India Insurance Co. Ltd. Bilaspur (C.G.) ACT •L HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.M.QUbbUSI <& HON'BLE MR.PRASHANT KUMAR MISHRA. JJ. 0 M.A.CC] No.353/09 Appellant v Respondent Appellant Respondent The New India Assurance Company Limited Vs Pankaj Raddy <& another <& M.A.FCINo.428/09 Vs Pankaj Reddy Dharamchand Tiwari <& another Present: Mr. Saurabh Sharma, Advocate for the appellant in M.A.-. (C) No.353/09 <& for respondent No.2 in M.A. (C) No.428/09. Mr. S.P. Kale, Advocate for respondent No.l in M.A. (C) No.353/09 <& for appellant in M.A. (C) No.428/09. Mr. K.K. Devangan, Advocate for respondent No.2 in M.A. (c) No.353/09 and respondent No.l in M.A. (C) No.428/09. ORDER (Oral) tth (20th September, 2010) I.M. Quddusi. J; 1. M.A. (C) No.353/09 preferred by the appellant-insurance company <& M.A. (C) No.428/09 preferred by the appellant- workman are being disposed of by this common order as both these appeals are arising out of the award dated 29.01.2009 passed in Case No.92/WCA/COC-l-B/2008 .(NF) whereby the learned CommissiQner under the Workmen's Compensatfon Act, 1923 has allowed the claim petition of the workman-claimant and awarded compensation of Rs.4,27,140/- alongwith interest ©12% p.a. 2. By filing M.A. (C) No.353/09 the appellant-insurance company has prayed that the impugned award be set aside and the insurance company be exonerated from the liability to satisfy the award. ^"- ^ 3. By filing M.A. (C) No.428/09 the workman-claimant has prayed for enhancement of the impugned award. 4. Brief facts of the case are that the workman/claimant filed a claim petition before the Commissioner, Workmen Compensation, Bilaspur claiming compensation to the tune of *. Rs.6,55,410/- towards disability. penalty and interest on the ground that he was employed under the respondent-employer as briver. On 28.01.2008 when he was coming from Pendra to Bilaspur in the Indica car of the respondent-employer bearing registration number CG10-F-4295, he met wi'th an incident near Kenda Road, Bansalpur and sustained grievous injuries on both his legs. He wasadmitted in the Primary Health Centre, Pendra Road for treatment and thereafter referred to CIMS, Bilaspur. Subsequently, in a private hospital i.e. Jai Ambe Nursing Home, Bilaspur, his both the tegs were operated and rod has been fixed in his both the legs. He has further stated that due to aforesaid injury he has suffered 100% disability. 5. The Commissioner. Workmen Compensation on the basis of the pleadings of the parties framed as many as nine issues and after hearing the parties in the matter and considering the material available on record/decided all the issues in favour of the workman-claimant and against the appellant insurance company. 6. We have heard learned counsel for the parties at length and perused the record of the case; 7. Learned counsel appearing for the appellant-insurance company has contended that the Commissioner, Workmen's Compensation on the basisof Item No.12 of Part-II of Schedule-1 of the Act, ,1923, which provides that in case of amputatiQn through both feet proximal to the metql'arsophalangeal joint, the loss of earning capacity would j ~r7/ be 80%, reached to the conclusion that earning capacity of the workman-claimant has been reduced to 50%. However, in the present case, the treating doctor, who has treated and examined the workman-claimant, has not been produced in the witness box by the workman to prove the injury and in absence of the medical evidence on record, the learned Commissioner was not right in holding that earning capacity of the employee has been reduced to 50%. 8. On the other hand, learned counsel for the respondent claimant supported the impugned award. However, he does not dispute the fact that doctor,who has examined the workman, ha? not been examined. 9. We have heard learned counsel for the parties and perased the records of the Commissioner, Workmen's Compensation, Bitaspur. 10. Section 11 (1) of the Act. 19Z3 reads thus;- "11. Medicqj Examination:- (1) Where a workman has given notice of an accident he shall, if the employer, before the expiry of three days from the time at which service of the notice has been effected offers to have him examined free of charge by a qualified medical practitioner, submit himself of such examination, and any workmen who is in receipt of a half-monthly payment under the Act, shall, if so required, submit himself for such examination from time to time. Provided that a workman shall not be required to submit himself for examination by a medical practitioner otherwise than in accordance with rules made under this Act, or at more frequent intervals than may be prescribed," ll.In the present case, since the workman-claimant produced himself for medical examination before the qualified medical practitioner, it was incumbent upon the Gommissioner, Workmen's Compensation to summon the medical practitioner and examine him as according to the learned counsel for the appellant-insurance company it is not in dispute that there was injury report on record and only that injury report was to be proved. Further, to ascertain the truth that as to what loss of income would be appropriate and which clause of Schedule-II would be applicable, the Commissioner, Workmen's Compensation, Bilaspur was required to summon the medical practitioner, who examined and treated the workman, but has not been done in the prescnt. 12. It is settled position that the medical evidence as to physical capacity is an important factor in the assessment of loss of earnin9 capacity, in the absence of medical evidence by doctors examining the claimant on behalf of either side, it is difficult to measure the physical disability of the claimant and thus also the diminution or otherwise of the earning capacity. Therefore, in our opjnion the matter requires reconsideration at the end of the Commissioner, Workmen's Compensation, Bilaspur. 13. Accordingly, we allow thi's appeal, set aside the impugned award and remit the matter to the Commissioner, Workmen's Compensation, Bilaspur for fresh decision in accordance with law. The parties shall be provided opportunity to adduce further evidence and the Commissioner will be free to summon any person whose evidence can be relevant for arriving at a true conclusion and thereafter the claim petition shatl be decided without being influenced by the decision which has been set aside by us. The parties shall appear before the Co'mmissioner, Workmen's Compensation, Bilaspur on 19th October. 2010. Needless to mention that the Commissioner shall make an endeavor to decide the claim petition as early as possible, preferably within a period of four months from the date of appearance of the parties. 14. The amount, which is in deposit, shall remain in deposit till finalization of the claim petition. 15'. Consequently, M.A. (C) No.428/09 preferred by the workman- claimant is dismissed without going intg the merit ofthe case as we have already remanded the matter to the Commissioner, Workmen's Compensation, Bilaspur for fresh decision. 16. Registry is directed to transmit record of the Commissioner, Workmen's Compensation, Bilaspur without further delay. 17. Certified copy as per rules. —— Roshan/- Sd/- I.M.Quddusi Judge Sd/- Prashant Kumar Mishra Judge