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Judgment
R.K. Patra, J.—The Insurance Company has filed this appeal against the order dated 21.11.1992 passed by the Assistant Labour Commissioner-cum-Commissioner for Workmen''s Compensation, Rourkela in W.C. Case No. 1K of 1989 by which the Commissioner has directed the Appellant to pay a sum of Rs. 98,530/- as compensation to the Respondent No. 1 with interest '' 6% per annum from the date of accident till the date of realisation.
The appeal was heard by a learned Single Judge, who was of the view that compensation has to be determined in terms of Section 4(1)(c) and not on the ground of total disability coming u/s 4(1)(b) of the Workmen''s Compensation Act, 1923. The learned Single Judge did not agree with the view expressed by Anr. Single Judge of this Court in the case of National Insurance Co. Ltd. Vs. Narendra Samal and Another, , wherein it was hold that if a helper loses a leg, he would not be able to work as a helper as before and, therefore, it would be a case of total disability, and accordingly would be entitled to 100 per cent compensation. He has, therefore, referred the question by order dated 8.5.1996 to a larger Bench for decision. That is how this appeal has come before us for hearing.
The question raised by the learned Single Judge has already been decided by a Division Bench of this Court in C. David Vs. Gobind Chandra Mishra and Another, . After considering the case of Narendra Samal (supra) and other cases, the Division Bench in paragraph-8 of the judgment held as follows:
In the premises stated above, we state that while assessing compensation, the Court has to see whether the earning capacity or the injured has been reduced in every employment and not merely in particular employment in which he was engaged at the time of the accident. That is the reason why Section 4(1)(c)(ii), Explanation-II of the Act mandates that in case of non-Schedule injury the qualified medical practitioner while assessing the loss of earning capacity shall have due regard to the percentage of loss of earning capacity in relation to different injuries specified in Schedule-I.
In view of what has been stated above, the Commissioner clearly fell into error in holding that the Respondent No. 1 would be entitled to compensation as a case of permanent disablement. We, accordingly, set aside the impugned order of the Commissioner and remit the matter to him for fresh determination keeping in view the observations made above and the medical evidence on record. Necessary order in this regard will be passed by the Commissioner after hearing parties within two months of receipt of this order.
The appeal is accordingly allowed.
L.C.R. may be sent back forthwith.
M. Papanna, J.
I agree.