JUDGMENT
V. Jagannathan, J.
1. The appellant Vikrant Tyres Limited is aggrieved by the order passed by the Commissioner for Workmen’s Compensation, Mysore, enhancing the compensation to the respondent-claimant, and directing the appellant to pay the compensation of Rs. 2,39,408/-. Hence, this appeal.
2. I have heard the learned Counsel Sri Somashekar for the appellant and the learned Counsel Sri S.B. Mukkannappa for the respondent-claimant.
3. The learned Counsel for the appellant submitted that, it is not in dispute that the respondent sustained injuries in an accident on 17.4.2000 and the appellant got the respondent examined at CSI Holdsworth Memorial Hospital and based on the medical report received and taking note of the loss of earning capacity at 20%, as per the calculation sheet (Annexure-C), deposited a sum of Rs. 89,058/- before the Commissioner and the said amount was also withdrawn by the respondent-claimant. However, the respondent was not satisfied with the loss of earning capacity assessed at 20% and, therefore, filed an application before the Commissioner on 12.10.2001, almost after 20 months and contended that he had sustained disability to the extent of 55% and, therefore, the compensation requires to be enhanced. In support of his stand, the respondent also produced the medical certificate issued by Dr. Nanjimdappa and the said medical certificate dated 27.1.2003 put the disability at 55% for the total body. The Commissioner accepted the said disability percentage and worked out the compensation on that basis and calculated the compensation at Rs. 2,39,408/-and as the appellant had already deposited Rs. 87,058/-, the Commissioner directed the appellant to pay the balance amount of Rs. 1,52,350/- to the respondent. Aggrieved by the said order of the Commissioner enhancing the compensation, this appeal has been preferred.
4. The learned Counsel for the appellant contended that, when the respondent was first examined by the doctor at Holdsworth Memorial Hospital, the loss of earning capacity was put at 20% and the employer had promptly deposited the amount. However, the respondent, though being in employment and continued to get full salary and in fact, more than the salary that he was getting at the time of the accident, the Commissioner could not have accepted the disability certificate produced almost, after three years i.e., on 27.1.2003,/the certificate which issued by the doctor putting the disability at 55%. The Commissioner ought to have referred the matter to the Medical Board for expert opinion since there was great variance between the percentage of disability assessed at the first instance which was 20% and the percentage of disability that is spoken to by the doctor in the year 2003 at 55%. No such step was taken by the Commissioner and, therefore, the impugned order is unsustainable in law. It was also contended that when the respondent, is getting full salary even after the accident, the question of awarding compensation on the basis of loss of earning capacity will not arise.
5. On the other hand, the learned Counsel for the respondent, submitted that insofar as awarding the compensation for loss of earning capacity is concerned, it is immaterial that the claimant, continues to draw the same salary or more salary even after the accident and in support of the said submission, the learned Counsel placed reliance on the decisions , 1986 ACJ 1150, 1979 ACJ 106 and 1978(1) LLJ 141. It was further submitted that, the doctor, who examined the respondent, had opined that the disability is 55% and the said doctor having been examined before the Commissioner, no fault, can be found with the impugned order.
6. Having heard the submissions of both sides and after perusing the order of the Commissioner, I am of the considered opinion that the Commissioner ought to have examined the medical certificate that was issued in the year 2003 in the light of the assessment of loss of earning capacity which was done at the first instance and when the doctor who examined the respondent has opined that the percentage of loss of earning capacity is 20%. The Commissioner, after having noticed the wide difference in the percentage between the medical report issued by the Holdsworth Memorial Hospital and the certificate issued subsequently in the year 2003 by Dr. Nanjundappa, should have sought, for expert, opinion as regards the actual percentage of loss of earning capacity.
7. Another reason for disagreeing with the order of the Commissioner is that, though the accident took place in the year 2000, the respondent produces a certificate in the year 2003 stating that he suffered 55% disability. In the absence of there being any material to show that the disability percentage assessed in the year 2003 was the actual disability percentage even at the time of the accident, it is rather difficult to accept the Commissioner’s order with regard to the disability being 55% and so is the loss of earning capacity. The percentage of disability as opined in the year 2003 must relate to the injury that was sustained in the year 2000 and, therefore, without examining these aspects of the matter, the Commissioner has simply accepted the medical certificate produced almost three years after the accident and based 011 that has worked out the loss of earning capacity at 55% and has enhanced the compensation.
8. For the foregoing reasons, the order of the Commissioner cannot be sustained insofar as enhancing the percentage of loss of earning capacity from 20% to 55% and, as such, the matter requires remand so as to enable the Commissioner to obtain expert opinion as to the disability being 55% at the time of the accident or for’ that matter, immediately after the accident. Therefore, the impugned order is set aside by allowing this appeal and the matter is remanded to the Commissioner for Workmen’s Compensation to examine the aspect of loss of earning capacity percentage in the light of the observations made herein above and after obtaining necessary expert opinion, the Commissioner shall dispose of the matter in accordance with law.
It is made clear that all the contentions urged by respective sides are however kept open and both parties are at liberty to adduce necessary evidence with regard to loss of earning capacity percentage. The Commissioner shall dispose of the matter within a period of three months from the date of receipt of this order.
The amount in deposit made by the appellant-Company shall be refunded to it.