Gauhati High Court
MFA/58/2022 on 22 July, 2026
1
GAHC010179202020
2026:GAU-AS:10047
IN THE GAUHATI HIGH COURT
HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
MFA/58/2022
The National Insurance Company Ltd.,
The National Insurance Company Ltd.,
Address- Registered Head Office At 3,
Middleton Street, Calcutta-700071, Rep.
By The Manager, Gauhati Regional Office,
Bhangagarh, Guwahati, Kamrup(M),
Assam, Pin- 781005.
.....Appellant
-Versus-
1: Md. Abdul Malek And Anr. B,
Md. Abdul Malek,
Address-S/o-Md. Samir Ali,
R/o-Village-PanchmileTengabasti,
P.O. Panchmile,
P.S. Tezpur, Dist.-Sonitpur, Assam,
Pin-784025.
2: Mrs. Anuwara Jahan,
W/o-Ayub Ali,
R/o-Village-Uriamguri,
P.O. Panchmile,
P.S. Borghat, Dist.-Sonitpur, Assam,
Pin-784025.
......Respondents
For Appellant : Ms. R.D. Mozumdar, Advocate
MFA/58/2022 Page 1
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For Respondent(s) : Mr. K. Bhattacharjee, Advocate
Date of Hearing : 05.05.2026
Date of Judgment : 22.07.2026
BEFORE
HON’BLE MR. JUSTICE MRIDUL KUMAR KALITA
JUDGMENT AND ORDER
[1] Heard Ms. R. D. Mozumdar, the learned counsel for the
appellant. Also heard Mr. K. Bhattacharjee, the learned counsel
for the respondent No. 1/claimant.
[2] This appeal under Section 30 of the Employees’ Compensation
Act, 1923 has been filed by the appellant, namely, the National
Insurance Company Limited, impugning the judgment and
award dated 27.02.2019, passed by the learned Commissioner,
Employees’ Compensation, Sonitpur, Tezpur in W.C. Case No.
32/2012, whereby, the present appellant was directed to pay
the compensation amount of Rs. 10,99,591/- to the respondent
No. 1/claimant, along with an interest at the rate of 12% per
annum.
[3] The facts relevant for consideration of the instant appeal, in
brief, is that the respondent No. 1/claimant, who was working
as a labour in the vehicle bearing Registration No. AS-12-D-
2520(407 Truck) belonging to the respondent No. 2 sustained
grievous injuries on his person in an accident which occurred on
MFA/58/2022 Page 2
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16.01.2012, when the truck in which he was travelling on that
day, hit another vehicle which was parked in the middle of the
road. After the accident, the respondent No. 1/claimant was
admitted in Dispur Hospital, Guwahati and it was found that he
suffered from Type 3 compound fracture of both bones of leg
with degloving injury (R) foot/angle with fracture of bone (L)
forearm, in the accident. He was operated upon and fitted with
steel rod and was advised not to do labour work in the vehicle.
His disability was assessed by one Dr. D.J. Deka, to the extent
of 40 %. In connection with the aforesaid incident, a police
case, i.e., Kaliabor P.S. Case No. 16/2012 was also registered.
[4] The respondent No. 1/claimant, thereafter, approached the
Commissioner, Employees’ Compensation Sonitpur, Tezpur and
filed a claim petition seeking compensation for the injury
sustained by him in the aforesaid motor vehicular accident,
arising out of and in the course of his employment as a labour
in the said vehicle bearing Registration No. AS-12-D-2520(407
Truck).
[5] His claim case was registered before the Commissioner,
Employees Compensation, Sonitpur as W.C. Case No. 32/2012.
The owner of the offending vehicle as well as the insurance
company contested the claim by filing written statements.
[6] On the basis of the pleadings of the parties, following issues
were framed:-
MFA/58/2022 Page 3 4 i. "Whether Abdul Malik was a Workman within the Employees' Compensation Act, 1923 as amended? ii. Whether the accident arose out of and in the course of employment?
iii. Whether the said claimant is entitled
to get compensation; if so, what shall
be the quantum and from whom?”
[7] In support of his claim, the respondent No. 1/claimant
adduced evidence of himself as PW-1 and exhibited 9(nine)
documents as Exhibit-1 to Exhibit-9. The opposite parties did
not adduce any evidence against the claimant’s case. Ultimately,
by the judgment which has been impugned in this appeal, the
Commissioner, Employees’ Compensation, Sonitpur allowed the
claim of the claimant by awarding him a compensation amount
of Rs.10,99,591/- (Rupees Ten Lakh Ninety-Nine Thousand Five
Hundred and Ninety-One) only, along with an interest at the
rate of 12% per annum thereon.
[8] At the time of admission of this appeal, this court had
formulated following substantial questions of law in this appeal:-
i. “Whether in view of the fact that the
injuries and the resultant disability would
not incapacitate the Workmen’s in
pursuing every employment, theMFA/58/2022 Page 4
5compensation can be assessed under
Section 4(b) of the Employees’
Compensation Act, 1923, as done by the
learned Commissioner in a perverse
manner?
ii. Whether the learned Commissioner can
assess loss of earning capacity on his
own?
iii. Whether in view of the fact that injuries
suffered by the petitioner does not fall
under Schedule 1 injuries of the EC Act
1923, the compensation can be granted
under Section 4(b) of the EC Act 1923?”
[9] As regards the first substantial question of law formulated in
this appeal, Ms. R.D. Mozumdar, the learned counsel for the
appellant submits that the learned Commissioner, Employees’
Compensation, Sonitpur, erred in holding that the claimant is
entitled to get compensation under Section 4(b)of the
Employees’ Compensation Act, 1923, in as much as the injury
sustained by the claimant in the instant case is not the kind of
injuries which are enlisted in Schedule-1 of the Employees’
Compensation Act, 1923. She submits that there is also no
evidence on record that the claimant, because of the injury
sustained by him in the accident, will not be able to do any kind
of work to earn his livelihood. She submits that the only
evidence on record is that he cannot do the work of labour
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which he was doing before the accident. She submits that the
injuries sustained by the claimant might have reduced the
earning capacity of the claimant in his earlier engagement, but
he is not incapacitated from earning and engaging in every
employment as no such evidence is there on record. As such,
she submits that the compensation ought to have been
assessed under Section 4 (1)(d) of the Employees’
Compensation Act, 1923, instead of Section 4 (1)(b) of the
Employees’ Compensation Act, 1923.
[10] In support of her submission, she has cited ruling of a
coordinate bench of this court in the case of “The Oriental
Insurance Co. Ltd. Vs. Md. Rupchan Ali and Anr.”(Judgment dated
16.05.2019 in MFA No. 186/2017).
[11] The learned counsel for the appellant has also submitted
that the learned Commissioner, Employees’ Compensation,
Sonitpur also erred in passing the impugned judgment without
taking into consideration that there is no evidence of a qualified
medical practitioner regarding the loss of earning capacity of the
claimant/respondent No. 1. She submits that the doctor, who
issued the disability certificate, was not examined as a witness
by the claimant/respondent No. 1 before the Commissioner,
Employees’ Compensation, Sonitpur. She also submits that the
provisions contained in Section 4 (1)(c)(ii), the loss of earning
capacity in case of an injury not specified in Schedule-1 of the
Employees’ Compensation Act has to be assessed by a qualified
medical practitioner. However, same has not been done in the
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instant case, as no qualified medical practitioner was examined
as a witness by the Commissioner, Employees’ Compensation,
Sonitpur, while awarding the compensation to the
claimants/respondent No. 1. She, therefore, submits that this
case is required to be remanded after setting aside the
impugned judgment to the learned Commissioner, Sonitpur for
examination of a qualified medical practitioner for assessing the
functional loss of earning capacity of the claimants/respondent
No. 1 due to the accident involved in this case.
[12] In support of her submission, she has cited following
rulings of this court:-
i. “Oriental Insurance Co. Pvt.
Ltd. Vs. Md. Furad Ali @ Farida Ali and
Anr.”(Judgment dated 22.11.2016 in MFA No.
43/2011);
ii. “New India Assurance Co.
Ltd.Vs. Sanjit Kumar And Anr.” reported in
“(2000)2 GLT 567.”
[13] On the other hand, Mr. K. Bhattacharjee, the learned
counsel for the respondent No. 1/claimants has submitted that
the Commissioner, Employees’ Compensation, Sonitpur has
considered the evidence which was available on record in its
true perspective and, thereafter, awarded the compensation to
the present respondent No. 1/claimant after considering the
evidence on record as well as applicable law and as such, there
is no infirmity in the impugned judgment and award warranting
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any interference by this court. As such, he prays for dismissing
the instant appeal. He submits that there is evidence on record
that the doctor, who examined the claimants/ respondent No. 1
and who had issued Exhibit-8 disability certificate to him was
not alive and as such, he could not be examined by the
claimant. He submits that under such circumstances, the
Commissioner, Employees’ Compensation, Sonitpur was right in
assessing the loss of earning capacity himself on the basis of
materials available on record, including the disability certificate
which was exhibited as Exhibit-8. He further submits that it is
for the Commissioner, Employees’ Compensation to assess the
loss of earning capacity after taking into consideration the
percentage of physical disability assessed by the doctor. He
submits that the medical practitioners are not competent to
assess the loss of earning capacity which is not relatable to
medical profession. It is to the doctors only to assess the
percentage of physical disability and it is for the Commissioner
Workmen’s Compensation to work out the loss of earning
capacity on the basis of materials available on record, including
the disability certificate. In support of his submission, the
learned counsel for the respondent No. 1 has cited following
ruling:-
i. “M/s Vivek and Co. Vs. N Ravi and another“
(judgment dated 12.02.2021 in C.M.A. No.
1705/2018 of High Court of Madras);
ii. “Oriental Insurance Company Limited Vs.
Shyam Lal and another” [judgment datedMFA/58/2022 Page 8
922.11.2021 in First Appeal No. 1100 of
2009 of High Court of Bombay(Nagpur
Bench)];
iii. “Oriental Insurance Company Limited Vs.
A.J. Thomas” reported in “(2010)2GLJ 627;”
iv. “M/s National Insurance Co. Ltd. Vs. Laldari
th
Choudhury And Anr.”(Judgment dated 6January 2025 passed in MFA No. 48/ 2006
by a coordinate bench of this court
v. “Indra Bai Vs. Oriental Insurance Company
Ltd.” reported in “2023 LiveLaw (SC) 543;”
vi. “Divisional Manager, J&K State Forest
Corporation Vs. Satish Kumar” (judgment
dated 25.03.2026 passed in MA No. 454
/2011 by High Court of J&K).
[14] I have considered the submissions made by learned
counsel for both sides and have gone through the materials on
record. I have also gone through the rulings cited by learned
counsel for both sides in support of their respective
submissions.
[15] On perusal of the materials available on record, it
appears that the respondent No. 1/claimants suffered from Type
2 compound fracture of both bones (L) leg with de-globing
injury (R) foot / ankle with fracture of both bones (L) forearm.
MFA/58/2022 Page 9
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[16] Apparently, the injuries sustained by the claimant are
not enlisted in Schedule-1 of the Employees’ Compensation Act,
1923. As such, the compensation to which the
claimants/respondent No. 1 is entitled has to be assessed under
the provisions contained in Section 4(1)(c)(ii) of the Employees’
Compensation Act, 1923.
[17] It also appears that while computing compensation
under the aforesaid provision, the employee shall be entitled to
such percentage of compensation payable in the case of
permanent total disablement as is proportionate to loss of
earning capacity (as assessed by the qualified medical
practitioner), permanently caused by the injury. However, in the
instant case, though the injury sustained by the
claimants/respondent No. 1 is a non-scheduled injury, the
Tribunal has assessed the compensation payable to him under
Section 4 (1)(b) of the Employees’ Compensation Act, 1923,
which is unsustainable in law as in case of non-scheduled
injuries, the compensation has to be assessed under Section
4(1)(c)(ii) of the Employees’ Compensation Act, 1923.
[18] Moreover, while doing so, the Tribunal has to consider
the loss of earning capacity of the employee as assessed by a
qualified medical practitioner as held by a co-ordinate branch of
this court in the case of “New India Assurance Co. Ltd. Vs. Sanjit
Kumar And Anr.“(supra) and “The Oriental Insurance Co. Ltd. Vs.
Fida Ali @ Farid Ali” (supra).
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[19] As such, all the three substantial questions of law
formulated in this appeal are answered in negative and the
impugned award is held to be unsustainable in law and same is,
accordingly, set aside.
[20] The case is remanded to the Commissioner, Employees’
Compensation, Sonitpur to reassess the compensation payable
to the claimants/respondent No. 1 under Section 4(1)(c) (ii) of
the Employees’ Compensation Act, 1923 after getting the loss of
earning capacity of the claimant assessed by a qualified medical
practitioner as expeditiously as possible.
[21] Registry to send back the records of W.C. Case
No.32/2012 to the learned Commissioner, Employees’
Compensation, Sonitpur, along with a copy of this judgment for
compliance.
[22] The learned Commissioner shall issue notice to the
parties fixing a date for appearance as expeditiously as possible
after receipt of the aforesaid records and, thereafter, in
pursuant to the direction issued hereinabove shall dispose of the
case as expeditiously as possible.
[23] This appeal stands allowed to the extent indicated
hereinabove.
Digitally signed by Munmun Boruah JUDGE Munmun Boruah Date: 2026.07.24 13:32:06 +05'30' Comparing Assistant MFA/58/2022 Page 11
