For non-scheduled injuries, compensation under Section 4(1)(c)(ii) requires qualified medical assessment of earning-capacity loss.

Md. Abdul Malek, employed as a labourer in truck No. AS-12-D-2520, sustained serious injuries on 16 January 2012 when the truck collided with a vehicle parked on the road, arising out of and in the course of his employment.

He suffered compound fractures of both bones of the leg, a degloving injury to the foot/ankle, and a fracture of both bones of the forearm; his disability was assessed at 40% by Dr. D.J. Deka.

He filed a claim under the Employees’ Compensation Act, 1923, before the Commissioner, Employees’ Compensation, Sonitpur, in W.C. Case No. 32/2012.

By award dated 27 February 2019, the Commissioner awarded Rs.10,99,591 with interest at 12% per annum.

The National Insurance Company appealed under Section 30 of the Act, contending, inter alia, that the injury was non-scheduled, that compensation had been incorrectly assessed under Section 4(1)(b), and that loss of earning capacity had not been assessed by a qualified medical practitioner.

Whether compensation could be assessed under Section 4(1)(b) of the Employees’ Compensation Act, 1923, when the injuries did not incapacitate the claimant from pursuing every employment?

Whether the Commissioner could independently assess the claimant’s loss of earning capacity?

Whether compensation could be granted under Section 4(1)(b) when the injuries were not specified in Schedule I of the Act?

The Court applied Section 4(1)(c)(ii) of the Employees’ Compensation Act, 1923, which governs compensation for injuries not specified in Schedule I and requires compensation proportionate to the loss of earning capacity as assessed by a qualified medical practitioner.

Section 4(1)(b), applicable to permanent total disablement, could not be used for a non-scheduled injury merely on the basis of general disability or inability to perform the claimant’s previous work.

The Court relied on New India Assurance Co. Ltd. v. Sanjit Kumar & Anr. and Oriental Insurance Co. Ltd. v. Md. Furad Ali @ Farida Ali & Anr., holding that loss of earning capacity in cases of non-scheduled injuries must be assessed by a qualified medical practitioner.

The claimant’s fractures and degloving injury were not injuries listed in Schedule I; therefore, the Commissioner was required to apply Section 4(1)(c)(ii), rather than Section 4(1)(b).

Although a 40% disability certificate had been exhibited, the medical practitioner who issued it had not been examined, and there was no legally sufficient assessment of the claimant’s loss of earning capacity by a qualified medical practitioner.

The Court distinguished physical disability from legally relevant loss of earning capacity and held that the Commissioner could not himself determine the latter in the absence of the required medical assessment.

Consequently, the award was legally unsustainable and required reconsideration on the proper statutory basis.

The matter was remanded to the Commissioner, Employees’ Compensation, Sonitpur, to reassess compensation under Section 4(1)(c)(ii) after obtaining an assessment of the claimant’s loss of earning capacity from a qualified medical practitioner.

The appeal was accordingly allowed to that extent, and the Commissioner was directed to dispose of the matter expeditiously after issuing notice to the parties.