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1 - 10 of 14 (0.22 seconds)Section 4 in The Employee's Compensation Act, 1923 [Entire Act]
Shivalinga Shivanagowda Patil And Ors. vs Erappa Basappa Bhavihala And Ors. on 1 December, 2003
19. The issue as to whether the loss of earning capacity shall be assessed
only by the qualified medical practitioner and as to whether the learned
commissioner is empowered to assess the same on his own without the assistance
or overlooking the assessment of the qualified medical practitioner arose for
consideration before the Supreme Court, our High Court and various High Courts.
The question as to whether the percentage of disablement can be coextensive
with the loss of earning capacity in all situations and as to whether loss of
earning capacity depends upon the injury and the nature and character of the
avocation of the workman and whether medical evidence though relevant cannot be
a decisive factor, came up for consideration and the same is answered by the
High Court of Kerala (Division Bench)and Karnataka (Full Bench) in the following
cases (i) 1993 ACJ 1035 Kerala High Court United India Insurance Co. Ltd. and
others V. Sethu Madhavan and others; (ii) 2004 (2) TNMAC (FB) Karnataka 422
Shivalinga Shvangowda Patil V. Erappa Basappa Bhavihala; and (iii) 2006 ACJ 775
Andhra Pradesh High Court National insurance CO. Ltd., V. M.Shyam Prasad and
another.
New India Assurance Co. Ltd. vs Sreedharan on 12 January, 1995
23. Our High Court in 2010 1 TNMAC 161 Madurai Bench has in para 8 by
relying upon the Supreme Court judgment above referred to and full bench of
Kerala High Court reported in New India Assurance Co.Ltd., V. Sreedharan in 1995
ACJ 373 held that the loss of earning capacity must be fixed by the Doctor. In
the case decided by the High Court, PW2 Doctor has assessed only permanent
disability and has not spoken about the loss of earning capacity, as such the
High Court is pleased to remand the matter to the learned commissioner for
reassessing the loss of earning capacity by giving opportunity to both parties
to examine doctor to speak about the loss of earning capacity.
M/S. Victorian Granites (P) Ltd vs P. Rama Rao & Ors on 9 September, 1996
21.Oral testimony before the court has got highest worth and credibility than a
simple certificate and the evidence of qualified medical practitioner regarding
permanent disablement of the workman to undertake the work he was doing even in
the absence of certification can be accepted. (2007 ACJ 1105)(Bombay) (National
Insurance co. Ltd. v. Rama and others)
Regional Director, E.S.I Corpn. And Anr vs Francis De Costa And Anr on 5 May, 1992
15. In the case decided by Rajasthan High Court, there were two claims
made one before the Motor accident claims tribunal and another before the
Workmen Compensation Act. The claim before the tribunal is against third party
tort-feasor, whereas the claim before the learned commissioner under Workmen
Compensation Act is against the employer who are different parties. When the
maintainability of two claims arising out of the same accident before two forums
was questioned, the same is held in favour of the claimant by the learned
Commissioner. The correctness of such order was challenged before the Gujarat
High Court. The same after referring to the observations of various High Courts
and Supreme Court finally rendered its decision in para 22 to 24 in favour of
maintainability of two claims under two different enactment against two
different parties i.e. employer in one case and tort-feasor other than the
employer in other case. The Rajasthan High Court held at page 281 of its
judgment that in such cases where the tort-feasor and the employer happened to
be one and the same person, the workman or the claimant has to exercise his
option, namely, he can either proceed against the tort-feasor before the
Accident Claims Tribunal or he can proceed against the employer under the
provisions of the workmen's compensations Act. It is held so, by relying upon
the decision of the Supreme Court in 1993 Supp. (4) SCC 100 in Regional Director
V. Francis De Costa.