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2009 DIGILAW 764 (GAU)

United India Insurance Co. Ltd. v. Kasibor Rahman

2009-11-03

C.R.SARMA

body2009
JUDGMENT C.R. Sarma, J. 1. Heard Mr. A. Ahmed, learned Counsel appearing for the Appellants. Also heard Mr. R.L. Yadav, learned Counsel appearing on behalf of the Respondents. 2. Having heard the learned Counsels for both the parties and as submitted by the learned Counsel for the Appellant the following substantial questions of law, involved in this appeal are recasted for the purpose of hearing this matter: 1. Whether the findings of the Commissioner that the workman sustained permanent disability suffered from illegality? 2. Whether the Commissioner was empowered to assess the loss of earning capacity of a workman in the absence of any specific evidence of a qualified medical practitioner? 3. Whether the insurer is liable to pay interest from a date prior to the date of determination of compensation? 3. As agreed by the learned Counsels appearing for both the parties the matter is taken up for final hearing and accordingly the learned Counsels are heard. 4. The limited question involved in this appeal is as to whether the learned Commissioner, Workmen's Compensation can himself assess the disability and loss of earning capacity without sufficient medical evidence in this regard. 5. Md. Kasibor Rahman, herein after called the claimant was employed as a labourer in Truck No. ML. 08/1871 and on 31.05.1999, during his employment, the said truck met with an accident causing injury to the claimant aforesaid. Accordingly, the injured was hospitalized for under going medical treatment. On the ground of permanent disability alleged to be sustained by the claimant in the said accident, a claim case being w.e.f. No. 8/2002, was filed before the learned Commissioner, Workmen's Compensation, Dhubri seeking Compensation from the owner the truck and the Insurance Company. 6. The claimant, in order to substantiate his claim, examined three witnesses including a medical officer. The opposite party did not adduce any evidence. The owner of the truck, who was impleaded as the opposite party No. 1, while admitting the fact of employment of the claimant and the injury sustained by him during the course of his engagement as a labourer of the said truck, averred that the offending vehicle was duly insured, at the relevant time, with the opposite party No. 2 i.e. the United India Insurance Company Limited and that the opposite party No. 2, being the insurer of the offending vehicle, was liable to pay the compensation, if any. 7. 7. The opposite party No. 2 i.e. the Insurance Company denied the liability to pay compensation and stated that the Petitioner’s claim was not maintainable for the purpose of granting compensation. 8. Considering the materials on record, the learned Commissioner, Workmen's Compensation, Dhubri held that the claimant sustained loss of 60% earning capacity and accordingly, the learned Commissioner granted compensation of Rs. 1,53,770/- with interest at the rate of 9% per annum w.e.f. 22.02.02 till the realization of the compensation. It was directed, by the said Judgment and award, that the compensation should be paid within a period of 60 days from the date of the order. 9. Being aggrieved by the said judgment and award, dated 25.02.05, passed by the learned Commissioner, Workmen's Compensation, Dhubri in case No. WC 8/2002, the Appellant Insurance Company has come up with this appeal challenging the correctness and legality of the impugned judgment and award. 10. Mr. A. Ahmed, learned Counsel appearing for the Petitioner, submitted, that in view of the provisions prescribed by the Explanation II to Section 4(1)(c)(ii), of the Workmen's Compensation Act, 1923 (for short the Act) the loss of earning capacity, for the purpose of granting compensation is to be determined by a qualified medical officer, having due regard to the percentage of loss of earning capacity in relation to different injuries specified in Schcdule-I. The learned Counsel has further submitted that the learned Commissioner Workmen's Compensation committed illegality by himself assessing the disability and the loss of earning capacity at 60% in computing the compensation, that too without any evidence on record in this regard. 11. The second point raised by the learned Counsel for the Petitioner is that the Commissioner, Workmen's Compensation, Dhubri committed error in law by granting the interest w.e.f. 22.02.02, which date was a date much prior to the date of determination of the compensation, i.e. the date of judgment and award. 12. Refuting the said argument advanced by the learned Counsel appearing for the Appellant, Mr. R.L. Yadav learned Counsel appearing on behalf of the Respondent submitted that there is sufficient medical evidence to show that the claimant sustained 60% disability and as such the learned Commissioner committed no illegality by awarding the compensation. 13. 12. Refuting the said argument advanced by the learned Counsel appearing for the Appellant, Mr. R.L. Yadav learned Counsel appearing on behalf of the Respondent submitted that there is sufficient medical evidence to show that the claimant sustained 60% disability and as such the learned Commissioner committed no illegality by awarding the compensation. 13. In order to appreciate the arguments, advanced by the learned Counsels appearing on behalf of the parties, I have carefully perused the evidence on record and the impugned judgment and award. 14. The claimant in his evidence given as PW 1 stated that after the accident he had undergone treatment in a hospital at Tura. He exhibited the medical certificate issued by the medical officer from the Tura Civil Hospital as Ext. No. 9. Ext. 9 inter alia, reads, "the injury is grievous in nature and permanent disability 50%." 15. Dr. Nur Md. Ahmed a Medical Officer from Dhubri Civil Hospital was examined as PW No. 3. The said medical officer, in his evidence, referring to the Ext. 9 issued by the Medical Officer from the Tura Civil hospital, stated that the disability was shown as 50%. This witness also opined that the disability, in his opinion might be less. The PW 3 did neither treat the claimant nor issued the disability certificate (Ext. No. 9). Therefore, the Medical Officer, who issued the Ext. 9, has not been examined to prove the disability of the claimant. 16. From the above, it appears that the medical officer, who was examined by the claimant, nowhere stated that the disability was either 50% or 60%. The impugned judgment and award reveals that the learned Commissioner Workmen's Compensation, himself, assessed the percentage of loss of earning capacity and disability at 60%, without any medical evidence on record. The Explanation II, aforesaid clearly indicates that in assessing the loss of earning capacity the percentage of earning capacity should be assessed by a qualified medical practitioner. 17. In support of his contention, the learned counsel, appearing for the Appellant has relied on the decision of this Court held in the case United India Insurance Co. Lid. v. Manoranjan Das and Anr. reported in 2008 GLT 329, in New India Assurance Co. Ltd. v. Tarun Chandra Das and Anr. reported in 2008 GLT 332 and in the case of National Insurance Co. Ltd. v. Manoranjan and Anr. Lid. v. Manoranjan Das and Anr. reported in 2008 GLT 329, in New India Assurance Co. Ltd. v. Tarun Chandra Das and Anr. reported in 2008 GLT 332 and in the case of National Insurance Co. Ltd. v. Manoranjan and Anr. reported in (2007) 2 SCC 349 . 18. In the case of United India Insurance Company Limited (supra), this Court held that in case of Permanent disablement, resulting from accident, not specified in schedule 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 officer and that no power has been given power to the Commissioner to assess such loss at his own. In the case of New India Assurance Company Limited also similar view was taken by this Court. I respectfully subscribe to the views expressed by this Court in the above referred two cases. 19. In the light of the above in respect of the injury not mentioned the schedule-1, the percentage of disablement followed by loss of caring capacity of the impugned is required to be assessed by a qualified medical practitioner and not otherwise. 20. From the record it appears that there was no assessment of 60% loss of earning capacity in respect of the claimant by a medical officer. The assessment of loss of earning capacity at 60%, as recorded by the learned Commissioner Workmen's Compensation, is not supported by medical evidence and as such the said assessment, not being inconformity with Section 4(1)(c)(ii) of the Workmen's Compensation Act 1923, was without jurisdiction and as such the same is liable to be set aside. 21. In the case of National Insurance Co. Ltd. (Suppl.) the Hon'ble Apex Court was pleased of hold that the Compensation becomes due on the basis of adjudication of the claim made. Therefore, as observed by the Apex Court, interest can't be awarded from the date of the accident or from any date prior to the date of the adjudication. An adjudication comes of an end on the date of awarding the Compensation by delivering the judgment. In the present case the judgment and award, being made on 25.02.2005, the adjudication of the claim fixing the Compensation was concluded on the said date. An adjudication comes of an end on the date of awarding the Compensation by delivering the judgment. In the present case the judgment and award, being made on 25.02.2005, the adjudication of the claim fixing the Compensation was concluded on the said date. The interest in this case was granted w.e.f. 20.02.2002 i.e. the date on which the Appellant/opposite party had received the notice. Therefore, the grant of interest, w.e.f. a date which was prior to the date of adjudication of the claim can't stand the test of law. 22. In the light of the above discussion, I find sufficient merit in this appeal warranting interference with the impugned judgment and award. Accordingly, the impugned judgment and award aforesaid is set aside. 23. However, considering the fact that the claimant had sustained injuries and keeping in mind the object of the beneficial legislation, I am of the considered opinion that an opportunity should be given to the applicant opposite/party to prove his case with regard to the loss of his earning capacity. Accordingly, the matter is remitted to the learned Commissioner, Workmen's Compensation, Dhubri for fresh disposal on merit. The parties are at liberty to adduce additional evidence only in support of the nature and extent of disability and loss of earning capacity. 24. The learned Counsel for both the parties have submitted that the Insurance Company has deposited an amount of Rs. 1,53,770/- with the Registry of this Court and that with the permission of this Court, the claimant has already withdrawn an amount of Rs. 1,00,000/-. 25. In view of the above, the remaining amount i.e. Rs. 53,770/- shall be returned to the Insurance Company i.e. the depositor. 26. In the light of the above observation, this appeal is disposed of. No cost.