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2015 DIGILAW 1113 (GAU)

Oriental Insurance Co. Ltd. v. Md. Jamaluddin

2015-09-01

N.CHAUDHURY

body2015
JUDGMENT : The Oriental Insurance Company Limited being appellant has preferred this appeal under Section 30 of the Workmen’s Compensation Act, 1923 (now renamed as Employees’ Compensation Act, 1923) Challenging the judgment and award dated 08.06.2004 passed by learned W.C. Commissioner, Nagaon in N.W.C. Case No. 57/2001 directing the insurance company to make payment of Rs. 1,41,120/- as compensation to the claimant, namely, Jamaluddin within a period of 30 days along with interest at the rate of 12% per annum w.e.f. 10.02.2001. 2. One Md. Jamaluddin, as claimant, submitted claim petition before the W.C. Commissioner, Nagaon stating that he was engaged as handyman in a mini bus having registration No. NLW-2872 belonging to one Ranjit Kuri. The vehicle met with an accident on 10.02.2001 at around 6.30 A.M. at Nonoi Badalgaon on N.H. No. 36 and thereupon he received injuries which resulted in permanent partial disablement. He was treated at Nagaon Civil Hospital by Dr. Durgeswar Borah and G.D. Entry No. 176 was made by Nagaon Traffic Police on the same day. The owner did not appear even after service of notice and so the proceeding was held ex-parte against him. The insurance company, however, appeared and submitted written statement. In course of the proceeding, claimant examined himself as PW 1 and Dr. Durgeswar Borah as PW 2. Insurance company examined one K.K. Paul as D.W. PW 1 proved accident information report, prescription of Nagaon Civil Hospital, prescription issued by Dr. Durgeswar Borah and disability certificate as Ext. 1, 2, 3, 4 and 5 respectively. He also proved the X-ray plates as materials Exts. 1 and 2. In course of cross examination, he claimed that he was 20 years of age at the relevant time and that he had sustained injury in the aforesaid incident resulting in fracture of left patella and 9th rib. PW 2, Dr. Durgeswar Borah stated that he issued certificate of examination of the patient and found that the claimant was rendered disabled to the extent of 25% because of which he lost his earning capacity to the tune of 50%. However, in course of cross examination he stated that because of his treatment there was sufficient improvement of the patient and the claimant became capable of doing some works besides certain limitations. However, he stood by his deposition that physical disability was permanent. However, in course of cross examination he stated that because of his treatment there was sufficient improvement of the patient and the claimant became capable of doing some works besides certain limitations. However, he stood by his deposition that physical disability was permanent. Considering the evidence of the witnesses of both sides, the W.C. Commissioner did not accept the contention of the doctor that the claimant has lost earning capacity of 50% but held that the claimant lost earning capacity to the extent of 35% and thereupon made the calculation of compensation and directed the insurance company to make payment of Rs. 1,41,120/-. He also allowed interest at the rate of 12% per annum w.e.f. the date of application till realisation. This judgment and award has been brought under challenge by the insurance company in the present appeal. 3. This court while admitting the appeal on 21.02.2011, framed the following two substantial questions of law:- (1) Whether Commissioner under Workmen’s Compensation Act, 1923 can assess wage of an employee taking together salary and allowances, contrary to the definition of wage in section 2(m) of the Workmen’s Compensation Act, 1923? (2) Whether Commissioner under the Workmen’s Compensation Act can assess loss of earning capacity of a workman of its own, when injury sustained by the claimant is a non schedule injury? 4. I have heard Mr. SK Goswami, learned counsel for the appellant and Mr. A Kundu, learned counsel for the respondent No. 1. None appears for the respondent No. 2 owner. 5. Mr. SK Goswami, learned counsel for the appellant, fairly submits that first substantial question of law framed by this court on 21.02.2011 has lost its significance after passing of the judgment by the Hon’ble Supreme Court in the case of United India Insurance Company vs. Ameeruddin reported in (2011) 1 SCC 304 . The first substantial question of law, however, does not require any adjudication. Arguing the second substantial question of law, Mr. SK Goswami submits that the W.C. Commissioner was at liberty to accept the opinion of the qualified medical practitioner. The first substantial question of law, however, does not require any adjudication. Arguing the second substantial question of law, Mr. SK Goswami submits that the W.C. Commissioner was at liberty to accept the opinion of the qualified medical practitioner. The W.C. Commissioner in the present case has neither accepted the opinion of the qualified medical practitioner nor has he called for the second opinion from anyone but has presumed that the claimant had lost earning capacity to the extent of 35% by himself and this is not permissible within the scope under Section 4(1)(c)(ii) of the Workmen’s Compensation Act, 1923. Mr. Goswami, therefore, argues that impugned judgment and order has become vitiated for such jurisdictional error of the W.C. Commissioner. 6. In the case in hand, the claimant sustained injury on two parts of his body. He has suffered fracture of the right patella and fracture on the 9th rib. According to him, because of these two injuries he cannot work as handyman anymore and he not being a driver or conductor cannot do any work relating to the motor vehicles. The learned W.C. Commissioner accepted this contention of the claimant after considering the evidence adduced by the qualified medical practitioner as PW 2. According to Mr. SK Goswami, learned counsel for appellant, once PW 2 admitted in his cross examination that there was some improvement after treatment of the claimant, the injury sustained by him can no longer be considered as permanent one and under such circumstances, assessing compensation under Section 4(1)(c)(ii) cannot arise. 7. I have perused the cross examination of PW 2. PW 2 has stated in course of cross examination that he gave treatment to the claimant and upon such treatment there was improvement in the condition of the victim. Even thereafter he stated that the disability is permanent. So certificate given by PW 2 and his deposition in support of permanent disability of the claimant, remain even after improvement acquired by the claimant by way of treatment. From the trend of cross examination, I do not find that any question was put to the PW 2 as to loss of earning capacity of the claimant. What is required from a qualified medical practitioner is his opinion as to assessment of loss of earning capacity as provided under Section 4(1)(c)(ii) of the Workmen’s Compensation Act, 1923. From the trend of cross examination, I do not find that any question was put to the PW 2 as to loss of earning capacity of the claimant. What is required from a qualified medical practitioner is his opinion as to assessment of loss of earning capacity as provided under Section 4(1)(c)(ii) of the Workmen’s Compensation Act, 1923. Since, he claimed in his examination-in-chief that the claimant had lost 50% of the earning capacity and there was no cross examination on this point, his examination-in-chief went unrebutted into evidence and in that event, there is no scope to interfere with the finding of the learned W.C. Commissioner. 8. It cannot be said that the findings arrived at by the learned W.C. Commissioner is not based on any assessment of a qualified medical practitioner. There is nothing in statute to hold that the learned W.C. Commissioner is either to accept the opinion of the qualified medical practitioner in entirety or to reject the same in entirety. Assessment made by the qualified medical practitioner is only a basis for arriving at the opinion by the W.C. Commissioner. Ultimately, it is the jurisdictional W.C. Commissioner who has been endorsed with the responsibility to assess compensation. The W.C. Commissioner definitely is at liberty to apply his mind to find as to whether the opinion can be accepted in entirety or it needs to be rejected. Mr. SK Goswami submits that if a leg of a claimant is amputed below knee in that event, under Part II of Schedule I, he is to be held to have lost 50% of his earning capacity. Here in this case, the claimant did not lose any part of his limb but he merely suffered from fracture of patella. Perhaps it is because of this reason, the opinion of the doctor as to 50% of loss of earning capacity was not accepted by the learned W.C. Commissioner. The W.C. Commissioner had some material in front of him to arrive at a finding which is nothing but an assessment made by the qualified medical practitioner and so the second substantial question of law does not arise under the facts and circumstances of this case. 9. The W.C. Commissioner had some material in front of him to arrive at a finding which is nothing but an assessment made by the qualified medical practitioner and so the second substantial question of law does not arise under the facts and circumstances of this case. 9. Coming to the judgment and award challenged in this appeal it appears that even on the date of passing of the award, the learned W.C. Commissioner allowed interest at the rate of 12% per annum from the date of filing of the application which does not appear to be in conformity of provision of Section 4A of the Workmen’s Compensation Act, 1923. The question of penal interest will arise only if the payment is not made within a period of 30 days from the date of falling due. The date of falling due is the date of adjudication and it is only thereafter the question of making payment of compensation would arise. This being the position, the finding of the learned W.C. Commissioner in regard to payment of interest cannot be upheld. Mr. SK Goswami, learned counsel for the appellant, submits that before presenting the Memo of Appeal, the insurance company had already deposited entire awarded amount with the jurisdictional Commissioner and the amount was also disbursed to the claimant. Under such circumstances, there is no question of making payment of interest anymore. The insurance company, therefore, is not liable to make any other payment. With these observations, the appeal stands closed. 10. No order as to costs.