Research › Search › Judgment

Gauhati High Court · body

2006 DIGILAW 124 (GAU)

United India Insurance Co. Ltd. v. Manoranjan Das

2006-02-01

AMITAVA ROY

body2006
JUDGMENT Amitava Roy, J. 1. The judgment and order dated 10.04.01, passed by the learned Commissioner, Workmen's Compensation Act, Guwahati, in W.P.(C) case No. 54/2000, awarding a sum of Rs. 1,10,502/- with interest thereon, in favour of the Respondent-claimant, has been put to challenge by the insurer of the vehicle No. As-01-B-6999. 2. I have heard Mr. S. Dutta, learned Counsel for the Appellant and Mr. D.K. Saikia learned Counsel for the opposite party No. 1. The opposite party No. 2 did not enter appearance in spite of service of notice. 3. The facts in brief, leading to the filing of the instant appeal are that the opposite party No. 1, while engaged as a handyman in the bus No. AS-01-B-6999, being in the employment of the opposite party No. 2, sustained injuries as the vehicle was involved in an accident. This was on 26.10.99. As a result of the accident, he sustained injuries on the right thigh and right shoulder-joint for which he took treatment at the Guwahati Medical Hospital, Guwahati, incurring an expenditure of Rs. 50,000/-. The opposite party No. 2, his employer, having refused to extend any financial help, the claim was lodged with the Commissioner, Workmen's Compensation Act, Guwahati, claiming an amount of Rs. 3,00,000/- under the Workmen's Compensation Act, 1923 (hereinafter referred to as "the Act"). The employer did not contest the claim. 4. The Petitioner, insurer of the vehicle involved, in its written statement, while challenging the status of the opposite party-claimant as a workman under the Act, disputed the accident and the injuries sustained by him. The Petitioner-insurer, therefore, denied its liability. 5. The opposite party-claimant examined himself and proved documents in support of his claim. The opposite-party No. 2 examined witnesses, amongst others, Dr. Uttam Chandra Roy, as DW 3, who in his evidence stated as follows, on the injuries sustained by the opposite party-claimant: (i) Rt. Thigh sweling with tenderness. (ii) Rt. Shoulder joint blunt injury with restricted movement. (iii) Cheek swelling with tenderness. Advised X-ray for injured parts. The X-ray plate shown to me nailing in right finula. The patient said that he treated outside I advised him for further treatment at GMCH. Injury No. 1 Rt. Thigh injury is grievous nature. The rest are simple. Injury No. 1 physical disability is 50%. No further treatment was taken under me. 6. Advised X-ray for injured parts. The X-ray plate shown to me nailing in right finula. The patient said that he treated outside I advised him for further treatment at GMCH. Injury No. 1 Rt. Thigh injury is grievous nature. The rest are simple. Injury No. 1 physical disability is 50%. No further treatment was taken under me. 6. The learned Commissioner, workmen's Compensation Act, Guwahati, on the basis of the materials on record, awarded the above amount as compensation payable to the opposite-party-claimant. In arriving at the said figure, the learned Commissioner accepted Rs. 2,000/- as the monthly wages of the injured (Rs. 800/- as salary per month plus Rs. 40/- as daily allowance). Considering the loss of earning capacity to be 50%, acting on the medical evidence and by applying the factor statutorily prescribed i.e. 194.17, the amount aforementioned was quantified. 7. Mr. Dutta has argued that it being a legislative prescription contained under Section 4(1)(C) of the Act that in case of injury not specified in schedule 1 for computation of compensation payable or injuries resulting in permanent total disablement, assessment of the loss of earning capacity by qualified medical practitioner is an essential precondition, the formula applied for assessing the amount of compensation in the instant case being per se in contravention of the mandate of the Act, the award merits interference. In support of his submission, Mr. Dutta has taken this Court through the evidence of Dr. Roy, DW-3. He has further submitted that the learned Commissioner erred in including the daily allowance of Rs. 40/- to be a part of the wages for quantifying the amount of compensation, and this having vitiated the award by a patent illegality, it ought to be set aside on this ground as well. In support of his submissions, Mr. Dutta has placed reliance on the decisions of this Court in New India Insurance Co. v. Sanjit Kumar and Anr. (2000) 2 GLT 567, Oriental Insurance Co. Ltd. v. Sri Dwijen Kalita and Anr. FAO No. 15/1999 disposed of on 17.08.06, and of the Orissa High Court in Divisional Manager, United India Insurance Co. Ltd. v. Bhagaban Das and Anr. 1998 1 TAC 558. 8. In reply, Mr. v. Sanjit Kumar and Anr. (2000) 2 GLT 567, Oriental Insurance Co. Ltd. v. Sri Dwijen Kalita and Anr. FAO No. 15/1999 disposed of on 17.08.06, and of the Orissa High Court in Divisional Manager, United India Insurance Co. Ltd. v. Bhagaban Das and Anr. 1998 1 TAC 558. 8. In reply, Mr. Saikia has urged that it being evident from the testimony of the doctor, DW 3, that the opposite party-claimant had suffered a physical disability of 50%, it was within the authority of the learned Commissioner to assess the loss of earning capacity on the basis thereof and the other materials on record and, therefore, the quantification of the amount of compensation cannot be faulted with. In support of his submissions, Mr. Saikia placed reliance on the decision of this Court in United India Assurance Co. Ltd v. Abdul Gafur and Anr. 2004 Supp GLT 118. 9. The submissions advanced have been duly evaluated. The facts narrated hereinbelow are not in dispute. It is apparent from the evidence of the doctor that the witness did not assess the corresponding loss of earning capacity resulting from the physical disability suffered by the injured. Section 4(1)(C) of the Act deserves to be extracted in this context: (c) Where permanent partial disablement results from the injury. (i) In the case of an injury specified in Part II of Schedule I, such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury; and (ii) In the case of an injury not specified in Schedule I. such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury. Explanation 1.- Where more injuries than one are caused by the same accident, the amount of compensation payable under this head shall be aggregated but not so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries. Explanation 1.- Where more injuries than one are caused by the same accident, the amount of compensation payable under this head shall be aggregated but not so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries. Explanation II - In assessing the loss of earning capacity for the purpose of Sub-clause (ii), the qualified medical practitioner shall have due regard to the percentage of loss of earning capacity in relation to different injuries specified in Schedule I. 10. A plain reading of the above provision of the Act makes it manifest that where permanent partial disablement results from an injury, not specified in Schedule 1, the compensation payable would be the percentage of amount awardable in the case of permanent total disablement as would be proportionate to the loss of earning capacity to be assessed by a qualified medical practitioner. Thus, the assessment of loss of earning capacity precipitated by the injury caused is a sine-qua-non for a valid quantification of the amount payable, if such an injury is not one specified in Schedule 1 of the Act. The legislative prescription is clear and unambiguous. Had the lawmakers intended to empower the Commissioner, Workmen's Compensation, to make any independent estimate of the loss of earning capacity on the basis of other materials on record even in absence of such assessment by a qualified medical practitioner, such a specific requirement would not have been incorporated in the above provision of the Act. One of the basic tenets of interpretation of statutes being that the legislature does not unnecessarily employ any word or expression. I do not feel persuaded to hold that the words "as asserted by the qualified medical practitioner" are to be considered as an useless appendage to the provision involved. In other words, in my considered opinion, assessment of the loss of earning capacity in case of injuries not specified in Schedule 1 is a condition precedent for licit assessment of compensation comprehended in Section 4(1)(c)(ii)of the Act. 11. I respectfully subscribe to the views expressed by this Court in New India Assurance Co. (supra) and the Oriental Insurance Co. (supra) as well as of the Orissa High Court in Divisional Manager, United India Insurance Co. Ltd. (supra) to the fact. 11. I respectfully subscribe to the views expressed by this Court in New India Assurance Co. (supra) and the Oriental Insurance Co. (supra) as well as of the Orissa High Court in Divisional Manager, United India Insurance Co. Ltd. (supra) to the fact. With all humility, I find myself in disagreement with the view expressed in United India Insurance Co. (supra). In that case, amongst others, the attention of the Court had not been drawn, in particular, to Section 4(1)(C) of the Act. 12. In the case in hand, the evidence of the doctor is deficient in the above respect inasmuch as the same does not indicate any loss of earning capacity following the injuries sustained by the opposite party-claimant. The amount awarded on the above consideration alone cannot be sustained. The award is thus set aside. 13. However, considering that the legislation involved is beneficial in character, I am of the view that the opposite party-claimant deserves another opportunity of proving his claim in terms thereof. The matter, therefore, stands remitted to the learned Commissioner, Workmen's Compensation Act, Guwahati for the fresh disposal on merits. The parties will be at liberty to adduce additional evidence only on the aspect of loss of earning capacity of the opposite-party-claimant, if any and raise all other relevant issues for adjudication. The above, notwithstanding as 50% of the amount awarded, has, in the meantime, been disbursed to the opposite party-claimant in terms of the order, dated 15.10.01, in the instant appeal, I am not inclined to order recovery thereof from him. The opposite party-Respondents further entitlements would, now, depend on the result of the fresh adjudication to be made following the remand. 14. The appeal stands disposed in the above terms. 15. No costs.