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2015 DIGILAW 1115 (GAU)

New India Assurance Co. Ltd. v. Jatin Das

2015-09-01

N.CHAUDHURY

body2015
JUDGMENT : This appeal under section 30 of the Workmen’s Compensation Act, 1923 has been preferred by the insurance company challenging the judgment and award dated 15.01.2004 whereby the learned Commissioner, Workmen’s Compensation directed the insurance company to make payment of Rs. 1,28,513/- along with interest at the rate of 9% per annum from the date of passing of order till the date of deposit. 2. One Jatin Das, claiming himself to be the driver of Bus No. AS-15/0069 owned by one Debaraj Bharali of Ichapurhati, Barpeta, lodged a claim stating that while driving the vehicle he met with an accident on 25.01.2003 on way to Kopoha under Barpeta Police Station. He sustained grievous injuries on his person because of the accident and was immediately taken to Barpeta Civil Hospital for treatment. He was under treatment for three months to be fully cured. Barpeta P.S. registered a G.D. Entry No. 872 on 26.01.2003 in regard to the accident. It is further claimed that the vehicle was covered by valid insurance of New India Assurance Co. Ltd under its Bongaigaon Divisional Office. The claimant stated that he was being paid Rs. 1,500/- as salary per month and Rs. 120/- as daily allowance and thus his total monthly salary is to the extent of Rs. 5000/- per month. With these averments he claimed that he be awarded compensation of Rs. 3,50,000/- in all. 3. On receipt of notice, the owner opposite party No. 1 appeared and submitted written statement admitting employment of the claimant and the amount of salary paid to him. The opposite party No. 1 disclosed that the vehicle was covered by valid insurance under the opposite party No. 2, New India Assurance Company Limited. The opposite party No. 2, on the other hand, filed written statement denying its liability and took usual objections as to lack of cause of action, maintainability, lack of proper notice etc. The claimant examined himself as PW 1 and one Dr. Suresh Chandra Sarma as PW 2. Documents like doctor’s prescription, X-ray report, medical certificate and police report were proved as Ext. 1, 2, 3 and 4 respectively. The driving license was also proved by the claimant. The PW 2, Dr. Suresh Chandra Sarma, proved that he issued certificate Ext. 3 and that he had treated the patient. Suresh Chandra Sarma as PW 2. Documents like doctor’s prescription, X-ray report, medical certificate and police report were proved as Ext. 1, 2, 3 and 4 respectively. The driving license was also proved by the claimant. The PW 2, Dr. Suresh Chandra Sarma, proved that he issued certificate Ext. 3 and that he had treated the patient. According to him, the claimant sustained fracture of his left arm and right knee joint apart from the injury on the head. Because of these injuries, his physical disability was to the extent of 40% resulting in loss of earning capacity to the tune of 35%. Considering the driving license adduced by the claimant, the W.C. Commissioner arrived at the finding that the workman was 42 years 4 months and 1 day old at the time of accident and accordingly made assessment of compensation as follows: 60% of Rs. 4,000/- x 178.49 x 35% = Rs. 1,28,512.80 Since the vehicle was duly insured, the opposite party No. 2 insurance company was directed to make the payment within a period of 30 days failing which interest at the rate of 9% per annum was allowed w.e.f. the date of order till the deposit is made. 4. The insurance company challenged the aforesaid award by the present appeal. This court admitted the appeal on 04.04.2005, however, without framing any substantial question of law as required under Section 30 of the Workmen’s Compensation Act, 1923 and so today when the matter has come up for hearing, both the parties are heard to find as to whether any substantial question of law does arise from the facts and circumstances of the case. 5. I have heard Mr. S. Dutta, learned counsel for the appellant and Mrs. S.D. Saikia on behalf of the claimant. None has entered appearance on behalf of the owner. 6. From the recital of the facts referred to above, it would appear that the claimant is a driver of the Bus No. AS-15/0069 which is owned by one Debaraj Bharali. This Debaraj Bharali was impleaded as opposite party No. 1 in the proceeding who appeared and submitted written statement admitting employment of the claimant and the amount of salary paid to him. The claimant is a driver and by showing Ext. This Debaraj Bharali was impleaded as opposite party No. 1 in the proceeding who appeared and submitted written statement admitting employment of the claimant and the amount of salary paid to him. The claimant is a driver and by showing Ext. 3 medical certificate, he claimed that he sustained fracture on his left arm as well as right knee joint because of which he is not in a position to drive any motor vehicle any more. He was duly cross examined but no infirmity could be found out. PW 2, Dr. Suresh Chandra Sarma, the Medical and Health Officer at Barpeta, is the material witness in the case. He stated that there were three injuries on the part of the victim. Injury No. 1, contusion on left shoulder joint and X-ray examination shows that fracture on greater tubrosity of his left humerous. Injury No. 2 is the lacerated injury on the right leg below the knee joint and injury No. 3 is the bruise on occipital region of the scalp. According to him, injury No. 1 is a grievous one which is permanent and partial in nature and disability has been assessed to the extent of 40%. According to him, owing to injury No. 1 the victim lost earning capacity to the tune of 35% and this injury is permanent in nature and disability may continue as it is. This witness was thoroughly cross examined by the insurance company. But it does not appear that any fatal contradiction could be elicited from him in such cross examination. That being the position, the opinion given by the qualified medical practitioner that the claimant suffered physical disability to the extent of 40% and that thereby he lost earning capacity to the tune of 35% could not be falsified. Under such circumstances, the W.C. Commissioner did not commit any error in arriving at the finding that the claimant suffered from permanent partial disability owing to the accident referred to above and that he had suffered physical disability to the extent of 40%. The qualified medical practitioner has been assessed the loss of earning capacity at the rate of 30% and such opinion of the qualified medical practitioner not having been fruitfully challenged by way of cross examination or otherwise by the insurance company, the finding of the learned Commissioner, Workmen’s Compensation on this point also cannot be held to be perverse. The qualified medical practitioner has been assessed the loss of earning capacity at the rate of 30% and such opinion of the qualified medical practitioner not having been fruitfully challenged by way of cross examination or otherwise by the insurance company, the finding of the learned Commissioner, Workmen’s Compensation on this point also cannot be held to be perverse. Perversity of a finding is one thing and insufficiency of evidence is altogether a different thing. Under the facts and circumstances, it does not appear that any substantial question of law does arise in the present case. Consequently, the appeal is dismissed. 7. Mr. S. Dutta, learned counsel for the appellant, submits that at the time of admission of the appeal, the appellant had deposited whole of the awarded amount with the jurisdictional Tribunal and thereupon 50% of the compensation money has already been disbursed to the claimant. In that view of the matter, the claimant shall not be entitled to interest as the amount was already deposited by the insurance company. However, the balance and undisbursed amount lying with the jurisdictional W.C. Commissioner shall be released to the claimant on being identified. 8. Appeal stands dismissed. 9. No order as to costs. 10. Send down the L.C.Rs.