Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 1116 (GAU)

New India Assurance Company Ltd. v. Deepak Das

2015-09-01

N.CHAUDHURY

body2015
JUDGMENT : It appears that apart from the present W.C. Case No.39 of 2000, two other W.C. Cases, namely, W.C. Case No.36 of 2000 and 37 of 2000 had been registered before the W.C. Commissioner, Zone-III at Tezpur in connection with a motor vehicle accident held on 31.01.2000 in respect of a vehicle bearing No. AS-21/1242, which is a mini bus. One Junu Hazarika is the registered owner of the said vehicle and it was insured with New India Assurance Company Ltd. The motor accident referred to above, had taken place at Kalakhowa near Latabari under Bokakhat Police Station at about 6.30 P.M. for which the driver, conductor and the cleaner of the bus suffered injuries. The conductor initiated W.C. Case No. 37 of 2000. The cleaner, Sri Deepak Das claimed to have received grievous injuries in the said accident and so, he filed the W.C. Case No. 39 of 2000. All these W.C. Cases were tried by examining the same set of witnesses and three identical judgments were passed by the learned W.C. Commissioner. In all these three cases were decided on 13.09.2002 and 12.09.2002. The W.C. Case No.39 of 2000 was decided on 12.09.2000. However, the Insurance Company preferred appeal against all these judgments and thus, three separate appeals being MFA No.1 of 2003, MFA No.2 of 2003 & MFA No.3 of 2003 were registered by this Court and they were admitted for hearing. This appeal was admitted on 11.03.2003, however, without framing any substantial question of law. While admitting the appeal against W.C. Case No.37 of 2000, this Court framed 2(two) substantial questions of law. These 2(two) substantial questions of law are quoted below for ready reference: (1) Whether the interest payable under Section 4A(3) is to be from the date of accident or from the date of filing the application or from the date of adjudication? (2) Whether the interest payable under Section 4A(3) is to be from the date of accident or from the date of filing the application or from the date of adjudication? Again in case of the appeal against W.C. Case No.36 of 2000, one substantial question of law was framed by this Court which is quoted below: (1) Whether the learned Commissioner was justified in assessing the loss of earning capacity of the workmen as 40% keeping in view the nature of injuries sustained by workmen? Again in case of the appeal against W.C. Case No.36 of 2000, one substantial question of law was framed by this Court which is quoted below: (1) Whether the learned Commissioner was justified in assessing the loss of earning capacity of the workmen as 40% keeping in view the nature of injuries sustained by workmen? (2) MFA No.2 of 2003 and MFA No.3 of 2003 came up for hearing before this Court on 21.10.2014 and thereupon, both these appeals were allowed by deciding the substantial questions of law. Paragraph-17, 18, 19 & 20 of the said judgments passed by this Court in MFA No.2 of 2003 & MFA No.3 of 2003 are quoted below for ready reference: “17. Here in the instant case, Commissioner has come to a finding that disablement of the workmen are covered under section 4(1)(c) of the Workmen Compensation Act, 1923. Such a finding pre-supposes that disablement of the workmen was permanent but partial. The array of facts referred to above possibly do not justify such a finding of fact. Nine months after the accident, the same medical practitioner was of the view that all were well except occasional pain in the chest. But two years thereafter, he arrives at a finding that there are fracture in the vertebral columns of the claimant. Now merely by showing that there is fracture on the vertebral column cannot ipso-facto make out a case of permanent partial disablement. There has to be a specific opinion of the qualified medical practitioner to that effect. Here in this case, Exhibit-6 is silent as to permanency or temporariness of the disablement. If the argument of the claimants is accepted that Exhibit-6 is based on examination made immediately after the accident (for example 2.2.2000 in case of claimant Dip Kumar Nath) in that event prescription issued to him on 17.10.2000 assumes importance because 8 months thereafter the same doctor did not note any complication over the body of the patient. Arguments of the learned counsel for the claimants therefore, would rather lead to an irresistible conclusion that disablement, if there be any, was temporary in nature and that is why what was discernible on 2.2.2000 was not available on 17.10.2000. Once, it is found that disablement is temporary the case slips out of the category of section 4(1)(c) of the Workmen Compensation Act, 1923 and enters into the realm of section 4(d) thereof. Once, it is found that disablement is temporary the case slips out of the category of section 4(1)(c) of the Workmen Compensation Act, 1923 and enters into the realm of section 4(d) thereof. 18. Similar is the factual circumstances in the claim case of Sankar Das in WC Case No.36 of 2000. In that case also an identical prescription and an identical subsequent medical certificate was relied on by claimant to claim that he suffers loss of earning capacity to the extent of 40%. Even in that case, the certificate given by qualified medical doctor which is available at Annexure-2 at page 14 of the memorandum of appeal does not reveal as to whether disablement was temporary or permanent. In this case also there is prescription on record issued on 26.10.2000 as Exhibit-5(4) and the same contains the opinion that all well except occasional pain and tenderness. Thus, it is apparent that there was no material before the Employees Compensation Commissioner as on the date of judgment to arrive at a finding that disablement suffered by claimants were permanent or temporary in nature. Having so found it has to be held that employees compensation Commissioner in both these cases did not have any material whatsoever to record findings as to jurisdictional fact warranting application of section 4(1)(c) of the Employees Compensation Act, 1923. The finding, therefore, on this count alone are vulnerable. The application of Section 4(1)(c) of the Employees Compensation Act, 1923 in both these appeals were made by jurisdictional compensation Commissioner without there being any factual matrix or evidence. Both the judgments there from, are hereby set aside and the same are remanded to the Commissioner Compensation for deciding the matter afresh. 19. At this stage, Mr. D.K. Saikia, learned counsel for the claimants submits that since it is a beneficial piece of legislation the workmen be given an opportunity to lead further evidence to prove their respective cases. Mr. S. Dutta, learned senior counsel in his usual fairness has not objected to such submission. It is accordingly directed that Workmen Compensation Commissioner, Tezpur shall grant opportunity to both the parties to lead further evidence if they so feel to arrive at a decision afresh. This shall be done within a period of 3(three) months from today. 20. Both the appeals are allowed.” [3] Mr. S. Dutta, learned Senior Counsel assisted by Ms. It is accordingly directed that Workmen Compensation Commissioner, Tezpur shall grant opportunity to both the parties to lead further evidence if they so feel to arrive at a decision afresh. This shall be done within a period of 3(three) months from today. 20. Both the appeals are allowed.” [3] Mr. S. Dutta, learned Senior Counsel assisted by Ms. M. Choudhury, learned counsel for the appellant herein submits that on the same set of evidence earlier judgments were passed in W.C. Case No.36 of 2000 and W.C. Case No.39 of 2000 by the same W.C. Commissioner. All the judgments were also identical. That being the position, findings arrived at by this Court on the basis of the same set of facts and evidence in the earlier judgments would hold the field in the present appeal as well. Since it was held in the earlier judgments that the materials available to the W.C. Commissioner were not sufficient to arrive at a finding as to loss of earning capacity of the workman in those cases, a different view cannot be taken in the present case and accordingly, this appeal stands closed in the light of the substantial questions of law framed in other two analogous appeals and thereupon, appeal stands allowed and the impugned judgment and award dated 12.09.2002 passed in W.C. Case No. 39 of 2000 by the Court of W.C. Commissioner, Zone III, Tezpur is hereby set aside. The W.C. Commissioner shall afford adequate opportunity to the parties to lead further evidence so as to bring materials in regard to loss of earning capacity of the workman owing to the accident and thereupon, shall pass judgment and award afresh. Since, it relates to a Motor Vehicle Accident of the year 2000 the whole thing shall be completed within a period of six months from the receipt of the records. [4] At this stage it is submitted by Mr. S. Dutta that the entire amount has been deposited before the jurisdictional Commissioner after admission of the appeal and thereupon, 50% of the awarded amount has been withdrawn by the claimant/workman. So, it is directed that the learned W.C. Commissioner shall not disburse the balance 50% of the awarded amount till the W.C. case No.39 of 2000 is decided afresh. The copy of the judgments dated 21.10.2014 in MFA No.2 of 2003 and MFA No.3 of 2003 be kept on record. So, it is directed that the learned W.C. Commissioner shall not disburse the balance 50% of the awarded amount till the W.C. case No.39 of 2000 is decided afresh. The copy of the judgments dated 21.10.2014 in MFA No.2 of 2003 and MFA No.3 of 2003 be kept on record. [5] Send down the records immediately. [6] No order as to costs.