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2014 DIGILAW 308 (TRI)

Animesh Nath v. Kshitish Saha

2014-08-04

DEEPAK GUPTA

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JUDGMENT Deepak Gupta, C.J.:-- 1. This appeal under section 30 of the Workmen’s Compensation Act (hereinafter referred to as Act) was admitted on 25-07-2008 on the following question of law:- Whether, examination of the medical officer who issued the disablement certificate is a sine qua non for providing the disablement of the insured? 2. Briefly stated, the facts of the case are that the petitioner filed a petition under sections 4, 4A and 22 of the Act claiming compensation on account of injuries sustained by him in an accident which took place on 02-11-2004 in course of his employment under the opposite party Shri Kshitish Saha. 3. The claim of the petitioner is that he was a workman working in the “Ramkrishna Spun Pipe Industry” owned by the opposite party. At about 10 a.m. when he was trying to pull up an iron wheel, he sustained injury in his waist. He was taken to the Narsingarh Primary Health Centre and on the following day he was taken to G.B. Hospital, Agartala for better treatment. He was treated in G.B. Hospital as indoor patient from 03-11-2004 to 22-11-2004. He was not cured and thereafter he went to some private doctor. According to the petitioner, he became permanently disabled and his services were terminated by the opposite party. On these grounds, compensation was claimed. 4. The employer filed written statement and did not deny the allegations that the petitioner was a workman. He also did not deny the allegation that on 02-11-2004 when the petitioner tried to pull up an iron wheel, he suffered some problem. However, he continued to work for the whole day but in the evening complained to the Manager of the factory that he was feeling pain in his waist. He was then taken to the Narsingarh Primary Health Centre and the petitioner was treated in G.B. Hospital and thereafter started performing his normal duties without any complaint. 5. According to the employer, on 02-11-2004 the petitioner performed extra work beyond duty hours and received wages for the same from the opposite party. The workman continued to work in the industry under the employment of the respondent till June, 2005 and received his whole wages for this period. He did not make any complaint of any disablement. It was in June, 2005 that the workman sent a notice claiming compensation of Rs. The workman continued to work in the industry under the employment of the respondent till June, 2005 and received his whole wages for this period. He did not make any complaint of any disablement. It was in June, 2005 that the workman sent a notice claiming compensation of Rs. 5,00,000/- on the ground that he had become permanently disabled because he received injury on 02-11-2004. It is alleged that thereafter the petitioner himself left the job of the respondent. According to the respondent, the petitioner was getting Rs. 80/- per day. It is not disputed that on 02-11-2004 the petitioner was working in the Spun Pipe Factory of the respondent. According to the petitioner, he sustained certain injury and, therefore, was admitted in G.B. Hospital. 6. The learned Commissioner held that the petitioner had continued to work from 02-11-2004 till June, 2005. He received his wages and, therefore, his version that he could not do the work because of the injury sustained in November’ 04 does not appear to be correct. Not only did the petitioner receive his normal wages but he also received overtime in all the months from December’ 04 to June’ 05 which would show that he could do his normal work. The Commissioner has relied upon certain judgments of the Gauhati High Court in which it was held that in the absence of the evidence of the doctor, the medical report cannot be accepted at its face value. 7. I am of the view that in every case it may not be necessary to examine the doctor to prove the disability certificate. However, in this case, what has been proved on record is that the petitioner was issued the certificate on 10-08-2005 more than 7/8 months after the alleged occurrence. In the certificate, it is also mentioned that the petitioner is suffering from lumbago and the position is likely to improve. The certificate was valid only for 5 years and was not a permanent certificate. 8. Keeping in view the aforesaid facts, I am of the considered view that the learned Commissioner should not have dismissed the claim but should have given an opportunity to the petitioner to examine the doctor. Therefore, the order of the Commissioner is set aside and the matter is remanded to the Commissioner, Workmen’s Compensation. 8. Keeping in view the aforesaid facts, I am of the considered view that the learned Commissioner should not have dismissed the claim but should have given an opportunity to the petitioner to examine the doctor. Therefore, the order of the Commissioner is set aside and the matter is remanded to the Commissioner, Workmen’s Compensation. The petitioner may, if he so desires, produce the doctors to prove the medical certificate and link the same with the alleged injury sustained by him on 2nd November, 2004. It is for the petitioner to connect the disability with the injury suffered. In the facts of the present case, the respondent-employer must have a chance to cross-examine the doctor who issued the certificate also. 9. Therefore, the appeal is allowed. The judgment of the learned Commissioner is set aside and the matter is remanded to the Commissioner who shall decide the case after giving an opportunity to the petitioner to examine the doctors who issued the disability certificate. 10. The appeal is disposed of in the aforesaid terms. 11. The record be sent back to the learned trial Court forthwith. 12. The parties are directed to appear before the learned Commissioner, Workmen’s Compensation on 08-09-2014. The workman shall be given only two opportunities to examine the doctors and if he fails to do so the claim petition will have to be rejected. The Commissioner shall try to dispose of the matter as early as possible, and in any event not later than 31-03-2015.