M.M. Das, J.
1. The Insurer as appellant has preferred this appeal against the Award dated 8.5.2003 passed in W.C. Case No. 14 of 2002 by the Assistant Labour Commissioner & Commissioner for Workmen's Compensation, Rourkela.
2. The facts giving rise to this appeal at the behest of the Insurance Company briefly narrated are as follows :
The claimant-respondent No. 1 filed W.C. No. 14 of 2002 before the Assistant Labour Commissioner and Commissioner for Workman's Compensation, Rourkela claiming a compensation of Rs. 2.00 lakhs due to the injuries sustained by him in a vehicular accident. According to the claimant, on 22.3.2002 at about 11 P.M. while he was driving the vehicle (Truck) bearing registration number DL-IGB-1851, the said vehicle met with an accident near T.C.I. Chouk over-bridge. As a consequence, he sustained grievous multiple injuries and fracture in his left leg. The claimant sustained the said injuries, which arose out of and in course of his employment. After the accident, the injured was taken to Vesaj Patel Hospital, Rourkela where his left leg was operated and an iron rod was inserted as a treatment for the fracture, which he sustained in his left leg. It is the case of the claimant that he is unable to work as a driver and therefore, has lost his employment.
The owner of the vehicle who was Opp. Party No. 1 before the Commissioner filed his written statement admitting therein the employment of the claimant as a driver and the accident. It was further stated in the written statement that the claimant was receiving Rs. 3,300/- as monthly wage at the time of the accident, but stated that since the vehicle was insured by the appellant-Company, the appellant is liable to pay the compensation, if any, awarded in favour of the claimant. A separate written statement was filed by the appellant-insurer repudiating the claim as lodged by the claimant-respondent No. 1.
The Commissioner for Workmen's Compensation after recording the evidence adduced by the parties and accepting the documentary evidence produced by them, by the impugned Award, awarded a compensation of Rs. 1,11,213/- and directed the appellant to deposit the said amount within 30 days from the date of the order, failing which the said amount would carry simple interest at the rate of 12% per annum from 22.3.2002 till realization. Being aggrieved by the said order/Award dated 8.5.2003, the appellant-insurer has preferred the present appeal under Section 30 of the Workmen's Compensation Act, 1923 (hereinafter referred to as 'the Act').
3. The sole point raised by Mr. Sinha, learned Counsel for the appellant is that the Commissioner has acted contrary to law in accepting the certificate granted by one Dr. K. Sahoo, an Orthopaedic Specialist certifying that the percentage of the disability of the claimant is 30% and in coming to a conclusion that the loss of earning capacity of the claimant-injured is 30% even though the said doctor was not examined by the claimant-respondent No. 1.
4. Learned Counsel for the claimant-respondent No. 1 on the other hand contended that the appeal is not maintainable under Section 30 of the Act as it does not involve any substantial question of law as per the first proviso to Section 30 of the Act. He further submitted that even though the doctor has not certified the percentage of the loss of the earning capacity of the injured and has not been examined as a witness, it is always open for the Commissioner under the Act to assess the loss of earning capacity of an injured from the oral evidence adduced and documentary evidence produced before him and in the instant case, where all relevant documents including the certificate granted by Dr. Sahoo certifying the percentage of the disability of the injured having been brought on record, the Commissioner has acted within the parameters of law in assessing the percentage of loss of earning capacity of the injured as 30%. In support of his contention, learned Counsel has relied upon the decisions in the cases of New India Assurance Co. Ltd. v. Mohd, Aslam and Anr. 2003 (3) TAG 20 (All.) and Executive Engineer, Nawarangpur Electrical Division, Nawarangpur v. Istapan Gonda and Ors. 2003 (3) TAC 603 (Orissa).
5. In the case of Mohd. Aslam (supra) posed with a similar question, the Learned Single Judge of Allahabad High Court held as follows :
So far as the aforesaid aspect of the matter is concerned, it cannot be lost sight of that it is for the Workmen Compensation Commissioner to accept or not to accept the report of the Medical Practitioner. The report of the medical practitioner in the matter relating to the assessment of the earning capacity on account of the injuries received by the workman is only to.furnish a data on the basis of which a conclusion can be reached by the Workmen Compensation Commissioner. However, in a case where the workman concerned has brought on record the details of the injuries and their effect on the normal functioning of the human body, the extent of the loss of earning capacity can be reasonably assessed. The Workmen Compensation Commissioner cannot be said to have acted in an unauthorized manner, in case he embarks on his own assessment about the nature of injuries and the resultant extent of the disability.
In the case of Executive Engineer, Nawarangpur (supra), the Learned Single Judge of this Court while dealing with a similar question held that loss of earning capacity would not only depend upon the physical condition of the injured and the seat of injury, but also upon the nature and character of avocation of the workman at the time when he sustained the injury/injuries.
6. I am, therefore, in agreement with the above view of Allahabad High Court as well as this High Court, of the opinion that if sufficient materials are available before the 'Commissioner, more specifically, the certificate granted by a specialist certifying the percentage of disability, it is always open for the Commissioner to assess the percentage of loss of earning capacity by taking into consideration the nature of evidence, percentage of disability and the nature of work which the injured was performing at the time of accident. I, therefore, find no illegality or error committed by the Commissioner in assessing the loss of earning capacity at 30% in the case of the injured in the present case basing on the certificate granted by the doctor who is an Orthopaedic Specialist and the admitted position that the injured was working as a driver at the time of accident. Therefore, I do not find any reason to interfere with the impugned order/Award and the appeal is, accordingly, dismissed. The Commissioner for Workmen's Compensation, before whom the awarded amount has been deposited pursuant to the order dated 21.8.2003 passed in this case, is directed to disburse the said amount in favour of the claimant-respondent No. 1 along with the accrued interest, if any.