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2005 DIGILAW 350 (GAU)

National Insurance Co. v. Dulal Debnath

2005-05-02

A.B.PAL, I.A.ANSARI

body2005
JUDGMENT I.A Ansari, J. 1. This is an appeal preferred by the insurer against the award, dated 29.9.1997 passed in T.S.(W/C) No. 31 of 1994, by the learned Commissioner, Workmen's Compensation, West Tripura, Agartala, whereby the learned Commissioner has awarded as compensation, in favour of the respondent-claimant a sum of Rs. 1,05,895 along with interest @ Rs. 6% interest per annum from the date of the accident, i.e., 23.4.1990 till payment and a further sum of Rs. 52,948 as penalty with a direction to the appellant as insurer to pay the said compensation amount within a period of one month and, in default, to pay the enhanced rate of interest @ Rs. 12% per annum on the amount of compensation from the date of accident. 2. We have heard Mr. B. Bhattacharjee, learned counsel for the appellant-insurance company. Also heard Mr. S. Deb, learned senior counsel assisted by Mr. S. Chowdhury, learned advocate for the claimant-respondent, and Mr. S. N. Banerjee, learned counsel for the owner-respondent. 3. Upon perusal of the materials on record and on hearing the learned counsel for the parties, we find that the evidence given by the workman that he had sustained injuries on his backbone in course of his employment, on 23.4.1990, could not be shaken by the appellant. However, what has caught our attention is that there is no medical evidence on record showing the extent of loss of earning capacity of the workman as a result of the injuries sustained by him. In this regard, in fact, the workman also has not given any evidence. Without determining the extent of loss of earning capacity in terms of Section 4(1)(c)(ii) of the Workmen's Compensation Act, 1923, the quantum of compensation could not have been justifiably and legally assessed. However, in view of the fact that the workman had sustained, according to what we have observed hereinabove, injuries as aforementioned, the omission, on his part, to adduce adequate evidence as regards the extent of loss of earning capacity and/or the failure on the part of the learned Commissioner, Workmen's Compensation, to take notice of this fact and to obtain relevant evidence, in this regard, shall not be a, reason to completely deny the benefit of compensation in favour of the workman. 4. 4. We may also note that in the light of the decision given in Ved Prakash Garg v. Premi Devi, reported in AIR 1997 SC 3854 , the insurer-appellant could not have been saddled with any amount of money as penalty and the penalty, if any, could have been imposed on the owner of the truck in which the workman, according to the evidence on record, was working as an assistant. 5. Coupled with the above. It has also come to our notice that the appellant, as insurer, deposited an amount of Rs. 2,06,686 with the Workmen's Compensation, West Tripura, Agartala, before preferring the appeal and the said amount has already been withdrawn by the claimant-respondent. 6. Considering the matter in its entirety and in the interest of justice, the impugned award aforementioned is hereby set aside and the proceeding is remanded to the learned Commissioner, Workmen's Compensation, West Tripura, Agartala, with a direction to allow the workman-respondent to adduce oral as well as medical evidence in support of the extent of loss of earning capacity allegedly sustained by him. On the basis of the evidence, which the workman-respondent, may adduce in this regard, as well as the evidence, if any, is adduced by the employer and/or the insurer in rebuttal thereto the learned Commissioner shall determine the compensation in accordance with law and if the amount of compensation, so determined, is found to be less than what has already been deposited by the insurer-appellant and paid to the workman-respondent, the balance shall be directed to be refunded to the insurer-appellant. The whole exercise, so directed, shall be completed within a period of three months from the date of receipt of a copy of this order by the learned Commissioner, Workmen's Compensation, West Tripura, Agartala.. 7. With the above observations and directions, this appeal shall stand partly allowed. No order as to cost. Send back the lower court records, if any.