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2015 DIGILAW 1298 (GAU)

Oriental Insruance Co. Ltd. v. Mohan Saha

2015-10-07

N.CHAUDHURY

body2015
JUDGMENT : The Oriental Insurance Company Ltd. as appellant has preferred this appeal challenging the judgment and award dated 17.01.2007 passed by the learned Workmen’s Compensation Commissioner (hereinafter referred to as ‘the W.C. Commissioner’), Nagaon in NWC Case No.237 of 2003 thereby awarding compensation of Rs.1,61,398/- in favour of the respondent No.1/workman, Sri Mohan Saha. The appellant/ Insurance Company had been directed by the said judgment to make payment of the aforesaid amount within a period of 30 days from the date of the order. [2] The respondent No.1 Sri Mohan Saha as claimant instituted NWC Case No.237 of 2003 before the learned W.C. Commissioner at Nagaon stating that he was engaged as driver by one Chandra Sarkar in Bus No. ASD-9161. On 29.10.2003 while he was driving the vehicle from Nagaon Town towards Juria the vehicle met with an accident and turned turtle on the roadside at about 6.05 P.M. Juria P.S Case No.223 of 2003 under Sections 279/337/338/427/ 304(A) IPC was registered immediately and he was sent to Juria PHC for treatment. He was subsequently treated by a doctor and thereupon, it came to light that his right patella was fractured. He claimed to be 37 years of age at the time of accident and he was drawing salary of Rs.4600/- per month. He claimed Rs.2,00,000/- towards compensation. He further disclosed that the vehicle in question was covered by valid insurance policy of the appellant herein vide policy No.321206/2004/1962. [3] On being notified the owner opposite party No. 1 did not appear and did not contest the proceeding but the Insurance Company appeared and submitted written statement denying the case of the claimant in entirety. Upon such denial, the learned W.C. Commissioner framed as many as five issues which are quoted below: “(1) Whether there is any cause of action in this claim petition? (2) Whether the accident took place in course of an out of the employment of the claimant? (3) Whether the claimant/ petitioner sustained injuries in the accident? If so, what was his physical disability and loss of earning capacity thereon? (4) What was the salary and Age of the claimant at the time of accident? (5) Whether the claimant is entitled to compensation? If so who will be liable to pay the compensation and what will be the quantum?” [4] The claimant appeared and examined himself as C.W.1 and one Dr. (4) What was the salary and Age of the claimant at the time of accident? (5) Whether the claimant is entitled to compensation? If so who will be liable to pay the compensation and what will be the quantum?” [4] The claimant appeared and examined himself as C.W.1 and one Dr. Dipesh Das as C.W.2. The claimant in course of his evidence narrated the same story of sustaining injury in the accident. He claimed that Dr. Dipesh Das treated him for the injury sustained by him. He claimed that even till the date of deposition he was having pain on his legs and he has become physically disabled. He stated that he is not in a position to drive any vehicle any more. He proved accident information report as Exhibit-1, X-ray report as Exhibit-2, disability certificate as Exhibit-3, prescription of Juria P.H.C. as Exhibit-4 and driving license as Exhibit-5. The X-ray plate was proved as material Exhibit-1. He subsequently stated that he does not have any means of income as on the date of deposition. This witness was duly cross-examined by the Insurance Company when he did not deviate from the main story of sustaining injury in the accident and/ or being treated by the doctor. He claimed that his leg was plastered by Dr. Dipesh Das in his private chamber which was not removed for one and a half month. In course of cross-examination no question was put to the claimant as to whether he can drive bus any more but he said that sometime he can drive rickshaw and in that event he can make income of Rs.50 to 60 per day. No question was put to this witness in regard to his age. The claimant placed on record his driving license which must have disclosed his date of birth. [5] Considering the evidence available on record the learned W.C. Commissioner passed the impugned judgment and award on 17.01.2007 awarding compensation of Rs.1,61,398/- in favour of the claimant and directed the Insurance Company to make payment within a period of 30 days along with interest. This judgment has been brought under challenge in the present appeal. [5] Considering the evidence available on record the learned W.C. Commissioner passed the impugned judgment and award on 17.01.2007 awarding compensation of Rs.1,61,398/- in favour of the claimant and directed the Insurance Company to make payment within a period of 30 days along with interest. This judgment has been brought under challenge in the present appeal. [6] This Court while admitting the appeal on 02.01.2008 framed three substantial question of law, which are quoted below: “(1)Whether the assessment of disability and the loss of earning capacity as assessed by the doctor and accepted by the learned Commissioner is tenable in law? (2) Whether the findings arrived at by the learned Commissioner regarding monthly wages of the claimant contrary to the materials available on record is sustainable? (3) Whether the percentage of loss of earning capacity can be treated as a substitute for the percentage of physical disability?” [7] Dr. Dipesh Das being doctor of 16 APVN is a qualified medical practitioner. He stated on oath that he examined Mohan Saha on 02.11.2003 for the first time and thereafter, on several dates he examined him including 10.07.2005. He found that the patient was suffering from Lumbago Sciatica Syndrome and Osteoarthritis had developed in his patella. Because of this development he would find difficulty in driving vehicle. According to him, the victim suffered 25% physical disability and the same is permanent in nature. According to him, the patient lost earning capacity to the tune of 35%. The doctor was cross-examined by the Insurance Company at length. Various question were asked to him about the veracity of the certificate given by him but no question was put to him in the light of provision under Explanation-II under Section 4(1)(c)(ii) of the Act in arriving at the finding regarding loss of earning capacity. On the basis of the aforesaid evidence led by the parties and in the absence of any evidence led by the opposite parties, the learned W.C. Commissioner was duty bound to give his assessment on the materials available on record. He placed reliance on the assessment made by the qualified medical practitioner as required under Section 4(1)(c)(ii) on record. Nothing could be shown from the records to discredit such acceptance of assessment by the qualified medical practitioner. He placed reliance on the assessment made by the qualified medical practitioner as required under Section 4(1)(c)(ii) on record. Nothing could be shown from the records to discredit such acceptance of assessment by the qualified medical practitioner. There is no cross-examination of either of the witnesses to doubt that the qualified medical practitioner either did not apply mind or did not make the assessment in accordance with the provision of law. The doctor made a guess work from the nature of the injury qua nature of occupation pursued by the workman. The W.C. Commissioner considered that the workman was engaged in driving vehicle and that he had developed Lumbago Sciatica Syndrome and Osteoarthritis, as per opinion of the qualified medical practitioner and that he would find difficulty in driving vehicle. The workman specifically stated in course of his deposition that he cannot drive any vehicle anymore and there is no cross-examination on this point. [8] The claimant by virtue of the materials furnished as discussed above succeeded to establish that he suffered from permanent partial disability within the meaning of Section 2(1)(c)(g) of the Act and because of this he became permanently disabled from pursuing the occupation of driving commercial vehicle in which he was skilled at the time of the accident. There is nothing on record to arrive at the finding that the claimant was skilled in any other employment at the time of the accident and so, the contention of the learned counsel for the appellant that it is not a case under Section 4(1)(c)(ii) of the Act cannot be accepted. The qualified medical practitioner has also given his opinion in regard to loss of earning capacity of the victim which the learned W.C. Commissioner has accepted. The impugned judgment and award is thus based on the assessment made by a qualified medical practitioner which is this condition precedent for assessment of compensation under Section 4(1)(c)(ii) of the Act. The learned counsel for the appellant could not point out as to how such finding of the learned W.C. Commissioner cannot be interfered with in view of the materials available on record. The substantial questions of law, therefore, framed by this Court at the time of admission of the appeal do not really arise from the facts and circumstances of the case. Consequently, the appeal is found to be devoid of any merit and it is accordingly, dismissed. The substantial questions of law, therefore, framed by this Court at the time of admission of the appeal do not really arise from the facts and circumstances of the case. Consequently, the appeal is found to be devoid of any merit and it is accordingly, dismissed. Stay order passed earlier stands automatically vacated. [9] Mr. A. Ahmed, learned counsel for the appellant submits that the appellant Insurance Company has already deposited the principal compensation amount with the jurisdictional W.C. Commissioner on 29.03.2007. The appeal was admitted on 02.01.2008 and stay order was passed thereafter. That being the position, there is likelihood that the amount might have been disbursed to the workman already. Since, the amount was deposited by the Insurance Company even before the admission of the appeal, the amount, if not disbursed, shall be disbursed to the workman and the Insurance Company shall not be required to pay any further amount towards interest. [10] Send down the records.