Judgment:
D.N. Patnaik, J.
1. In this appeal the New India Assurance Co. Ltd.assails the order of the learned Commissioner underWorkmen's Compensation Act, Cuttack awarding Rs. 29,693.29 paise as compensation to the responent No. 1 - claimant.
2. The case of parties is that the claimant (PW1) at the relevant time was working as Coolie under respondent No. 2 in his truck ORY 532. This truck met with an accident on November 2, 1989 at 101 p.m. near the Kantigadia Octroi gate as a result of which the claimant sustained fracture of right hand, head injury and other bodily injuries. The learned Commissioner accepted the evidence of the claimant and that of the doctor and held that the injuries so sustained by the claimant was, and arose, during course of his employment under the respondent No. 2 and accordingly awarded compensation aforesaid which is assailed in the Court.
3. Mr. Basu, learned Counsel for the appellant, strenuously urged, firstly that the learned Commissioner committed an error in accepting the certified copy of the deposition of the witnesses in another case as evidence to support the case of the claimant: in the present case. I entirely agree with this submission, but even then, the evidence of the claimant and the doctor having been taken into consideration by the learned Commissioner in arriving at the conclusion that the claimant is entitled to compensation so; awarded, the order cannot be interfered with.
It was further submitted by Mr. Basu that there was no evidence with regard to loss of earning capacity from the side of the claimant and the doctor who has been examined also did not state that and it was therefore patently erroneous on the part of the Commissioner to himself assess the compensation holding that the claimant lost the earning capacity up to 30 per cent. Mr. Basu relied on a decision re-ported in 1993(1) ACJ 68, New India Assurance Co. Ltd. v. Kalandi Moharna and Anr., of this Court in support of his argument.
4. Repelling this argument Mr. L.M. Nanda, learned Counsel for the claimant, relied on a decision of this Court reported in 1994(1) CJR 93, The United Insurance Co. Ltd. v. Sudarshan Das and Anr., and submitted that even in an appropriate case on the basis of the materials already on record, the Commissioner is free to assess the loss of earning capacity but the assessment should not be arbitrary, and in the present case, Mr. Nanda submits that the award of Rs. 29,000/- and odd in comparison to the injuries sustained cannot be said to be an assessment to have been arbitrarily made by the learned Commissioner.
5. I have gone through the evidence of the doctor (PW 2) who stated in the examination-in-chief about the injuries. He found on examination at the first instance on November 2, 1989, swelling and tenderness on the right fore-arm and multiple abrasion on the chest and right hand. He sustained fracture of right hand and advised him for X-ray. But the same night the patient came to him again with the X-ray plate and on examination of the X-ray plate, he found a fracture of the right ulna and thereafter plaster cast was applied which was removed on December 20, 1989. As there was still swelling and pain on the fractured part, he advised him physiotherapy. The patient again came on February 24, 1990 and on many dates thereafter, the last being February 12, 1992 for necessary check-up with the same complaint as before. On February 12, 1992 he again examinee him both physically and clinically and found that there was no improvement on the previous condition and therefore, he assessed the disability of the claimant to the extent of 30 per cent which was, according to him, of permanent in nature.
With this evidence, I do not find that the Commissioner committed any error or illegality in taking into account the evidence of the doctor that the claim-ant had incurred a permanent disability to the extent of 30 per cent and his decision with regard to the loss of earning capacity on that basis cannot be said to be wholly unacceptable.
6. There is no merit in the appeal which accordingly is dismissed.
It is stated at the Bar that the amount is in deposit in this Court by virtue of order dated December 13, 1993. This amount may be released in favour of the claimant on his application. No costs.