R.K. Dash, J.
1. The aforesaid 3 appeals by the Divisional Manager, United India Insurance Ltd. (hereinafter referred to as the 'Insurer') are directed against the common order passed by the Assistant Labour Commissioner-cum-Commissioner for Workmen's Compensation Orissa, Bhubaneswar (hereinafter referred to as 'the Commissioner') in W.C. Case Nos. 37, 39 and 85 of 1994. By the aforesaid order the Commissioner determined the compensation to be paid to the applicants in the aforesaid three cases (hereinafter referred to as claimants). Since the question of law involved in these 3 appeals are similar, they were heard analogously and are disposed of by this common judgment.
2. Facts giving rise to initiation of the aforesaid claim cases may briefly be stated thus:
On January 11, 1994 a truck bearing registration No. OSU-7056 being driven by Prakash Chandra Biswal, one of the claimants, met with an accident near Bidanesi New Colony, Cuttack, as a result, he and two labourers, namely, Bimal Kumar Mandal and Prabhat Kumar Dhal, the other two claimants, received injuries. They were all taken to the doctors and were medically examined. Since the claimants sustained injuries in the accident arising out of and in course of their employment, they moved the Commissioner under the Workmen's Compensation Act, 1923 (for short, 'the Act') claiming compensation of Rs. 60,000/- each. On being noticed, the Insurer filed objection denying the accident said to have taken place as alleged by the claimants.
3. On the pleadings of the parties, the learned Commissioner framed 4 issues and on consideration of the evidence, both oral and documentary adduced by the claimants determined the compensation to be paid to each of the claimants which is assailed in the present appeals.
4. Learned counsel for the Insurer while assailing the legality and correctness of the impugned order, urged that the learned Commissioner committed a grave error in determining the compensation without recording a finding about the percentage of loss of earning capacity of each other claimants. He further submitted that the two doctors, namely, Dr. Subodh Patnaik and Dr. Bijoy Kumar Patnaik who are alleged to have treated the claimants, being not orthopaedic specialists, their reports should not have weighed with the learned Commissioner to hold that the claimants were incapacitated due to the injuries received in the accident. Lastly he submitted that the percentage of loss of earning capacity as deposed to by the Doctor, P.W. 4 being a guess work and not supported by evidence, the impugned order deserves to be interfered with by this Court.
5. On the other hand, learned counsel for the claimants supporting the impugned order contended that the learned Commissioner on the materials on record assessed the loss of earning capacity of the claimants and determined the compensation which does not call for interference in the present appeals.
6. Before averting to the contentions raised at the Bar at the outset it is necessary to note that the vehicle involved in the accident belonged to Tusharkanta Mohapatra, respondent No. 2 and it was insured with the Insurer, the appellant herein. This being the admitted factual position the question arises whether the compensation so determined by the learned Commissioner is sustainable in law. The claimants in support of their case examined themselves as P.Ws. 1, 2 and 3 and the Orthopaedic Specialist of S.C.B. Medical College, Cuttack, as P.W.4. The owner of the truck (respondent No. 2) adduced his evidence and supported the case of the claimants. All the three claimants who were examined as P.Ws. 1, 2 and 3, corroborating each other, stated that in course of their employment the accident occurred on January 11, 1994 on account of which they received injuries. According to P.W. 1 he received injuries on waist and head and fracture of right leg. Similar is the evidence of P.W. 2, inasmuch as he received injuries on waist, head and fracture of right leg. So far as P.W. 3 is concerned he stated that he received injuries on waist and fracture of left shoulder joint. Their evidence would reveal that they were medically examined by Dr. Subodh Patnaik and Dr. Bijay Kumar Patnaik, but they failed to examine these two doctors to support their case. They however, proved their reports and got them exhibited through the Orthopaedic Specialist of S.C.B. Medical College, P.W.4. It would appear from the evidence of P.W. 4 that he was allowed by the learned Commissioner to depose about the preliminary examination conducted by the aforesaid two doctors by referring to their prescriptions and other relevant documents. What the above two doctors would have deposed with reference to their prescriptions was got recorded through him. This is a peculiar procedure followed by the Commissioner which is foreign to law. P.W. 4 neither treated the claimants immediately after the accident nor even some days thereafter. It was only in June, 1994 when the claimants were referred to S.C.B. Medical College by the treating physician, he examined them as out-patients. So whatever he stated with reference to the reports of the two treating physicians is of no help to the claimants and therefore, the assessment of their loss of earning capacity as deposed to by him is nothing but guess work, the reason being that it is based on the opinion of the other two doctors who were withheld from the witness box. Needless to mention, loss of earning capacity being a question of fact is to be determined by taking into account the physical disability as disclosed by the medical evidence.
Therefore, medical evidence as to the physical disability is an important factor in assessing the loss of earning capacity. So in absence of the expert opinion of the doctor who examined the injured, it is difficult for the Court to measure the physical disability so as to assess the loss of earning capacity. In the present case the statement of P.W. 4, the Orthopaedic Specialist of S.C.B. Medical College, cannot be termed as evidence admissible in law and as such his assessment of loss of earning capacity of the claimants being based on the reports of the two doctors who were withheld from the witness box is of no help to the claimants. In that view of the matter, his evidence being not admissible in law has to be obliterated from the record. Having done this, there remains no other evidence to assess the loss of earning capacity of the claimants on account of the injuries they received in the accident. In the circumstances, I would have remanded the cases to the learned Commissioner for fresh disposal in accordance with law. But since in the meantime more than five years have elapsed, it would be hard and harsh for both the parties to face the legal battle in the Court of the first instance. There being no serious dispute regarding the accident by the Insurer, in my opinion, the ends of justice would be best served if the dispute is finally resolved in these appeals.
7. Thus taking into consideration the overall facts, circumstances and the evidence, I determine the compensation payable to each of the claimants by the Insurer at Rs. 10,000/-(rupees ten thousand). The Insurer is directed to pay the aforesaid amount to each of the claimants within two months hence, failing which the same will carry interest at the rate of 12 per cent per annum till payment is made.
8. All the appeals are allowed in part. No costs.