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2001 DIGILAW 36 (JK)

Divisional Manager, J&K Forest v. Mohamadoo Lone

2001-02-13

G.D.SHARMA

body2001
1. This appeal is directed against the award dated 16.04.1996 passed by the Commissioner (appointed under the Workmens Compensation Act and hereinafter to be referred as the Commissioner) whereby a sum of Rs. 46.500/ - inclusive of costs was awarded in favour of the respondent for the injury suffered by him in his left leg during the course of employment of the appellants. The accident took place on 27.08.1990 while doing the Chiran work in compartment no. 44 at Panyala Forest of Forest Division, Doda. In the memo of appeal, no substantial question of law was framed. During the course of arguments, the learned counsel submitted that substantial question of law involved in the case is that the award was passed on the basis of no evidence and in contravention to the provisions of the workmens Compensation Act (hereinafter to be referred as Act). 2. Heard the arguments. 3. The learned counsel for the appellants has contended that the award is collusive passed on fabricated evidence. To substantiate the pela, the counsel referred to the allegation contained in the form of application of the respondent, which he had submitted before the Commissioner, wherein injury described was a fracture on the left leg at knee joint. The alleged accident took place on 27.08.1990 and the preliminary examination of the respondent as a witness was recorded by the Commissioner on 08.11.1990 wherein he had lent support to the allegation of fracture. In his statement an oath given on 01.11.1994, he did not make any mention of fracture and stated that the injury on the left leg had incapacitated him and he had got this injury treated by Dr. Hafizullah in the town of Doda. The Doctor had warned him that without treatment, the wound would become gangrenous. The treatment was given without any prescription. Dr. Hafiz-ullah was also examined as a witness on the same day and he deposed that respondent was treated by him for three or four days without any prescription. He examined the respondent in the court and then testified that healed scar of the wound was of the dimension of 1 cm. He was categorical in stating that there was not fracture and respondent never came to him after the treatment till he examined him in the court. He further deposed that the injury had caused him the disease of rheumatic arthritis because wound had developed infection. He was categorical in stating that there was not fracture and respondent never came to him after the treatment till he examined him in the court. He further deposed that the injury had caused him the disease of rheumatic arthritis because wound had developed infection. This disease is of incurable nature and has caused loss to the respondent in his earning capacity to the extent of 50%. In cross examination he admitted that there was Surgeon Specialist available in the District Hospital, Doda, who could give better treatment. The counsel has further contended that respondent is a man of easy virtues who on previous occasions too received compensation by foisting a false compensation case. 4. Mr. Kotwal, the learned counsel in rebuttal contended that because of the injury suffered, the respondent got the resultant rheumatic disease which is incurable in nature. Dr. Hafiz-ullah has corroborated that the disease is incurable. Respondent has further stated that his efficiency to work has been lowered. The Commissioner on the basis of such evidence rightly has assessed the compensation. 5. After considering the rival contentions of the counsel for the parties and going through the record. It is gathered that the Commissioner passed the award not on insufficient evidence but on fabricated evidence upon which no reliance could be placed. Respondent had taken inconsistent stand before him with regard to the nature of the injury. In the application form he had alleged that the injury had caused fracture at the knee joint of his left leg and this allegation was repeated in his ex-parte statement recorded on 08.11.1990. In his statement recorded on oath on 1.11.94 he suppressed the fracture on his leg and stated that his left leg was injured. Dr Hafizullah was also examined on 1.11.1994 in the court, who examined the respondent and after a gap of more than four years (when he lastly had seen the injured) opined that injury had caused the disease of rheumatic arthritis because the injury had become infectious. This ipse dixit of the doctor does not have any basis. He saw the healed wound of the dimension of 1 cm. and straightway diagnosed the cause of rheumatic arthritis the injury which was caused in alleged accident. This ipse dixit of the doctor does not have any basis. He saw the healed wound of the dimension of 1 cm. and straightway diagnosed the cause of rheumatic arthritis the injury which was caused in alleged accident. How he could say that the injury had got infected and said disease developed when he has not given any treatment to control the infection and was not associated with the helping process as well as development of the disease in question. He admitted in his cross examination that special treatment was available in the District Hospital, Doda. This further casts doubts on the quality of his evidence, which is not worthy of any credence. All these circumstances point out that doctor was in collusion with the respondent to establish the diseas of rheumatic arthiritis on the basis of which award was given. The appellants had taken the defence in the objections that respondent had earlier also got an award passed in his favour without any proof, this allegation remains unproved but it is established that award was passed on the basis of no evidence and this becomes a substantial question of law involved in the appeal, which is the import of Section 30 of the Workmens Compensation Act. 6. For the foregoing discussion, the appeal is accepted and award in question is set aside. CMP is also disposed of.