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Gauhati High Court · body

2015 DIGILAW 1379 (GAU)

National Insurance Company Ltd. v. Md. Abul Kalam

2015-11-04

N.CHAUDHURY

body2015
JUDGMENT : In this appeal under Section 30 of the Workmen’s Compensation Act, 1923 ( now renamed as ‘Employees Compensation Act, 1923’ and hereinafter referred to as ‘Act’) the Insurance Company has challenged the judgment and award dated 11.1.2007 passed by the W.C. Commissioner, Nagaon in NWC Case No.334 of 2001. By that judgment and award the learned WC Commissioner directed the insurance company to make payment of Rs.1,20,000/- to the claimant under Section 4(1)(d) of the Act. Immediately, the insurance company preferred this appeal and obtained stay order within a period of ten days from the date of receipt of the awarded amount before the jurisdictional WC Commissioner. This court by passing an interim order allowed the workman to withdraw 50% of the deposited amount. 2. The brief facts involved in this appeal are that one Md. Abul Kalam claiming to be driver of a truck bearing registration No. AS-01A/5215 belonging to one Md. Amir Ahmed Khan (opposite party No.1) stated that the vehicle met with an accident on 24.10.2001 whereupon it turned turtle on NH -37 at about 5.15 pm near Senchowa. Resultantly, he sustained multiple grievous injuries on his chest and hip joint and multiple abrasions on his head, forehead etc. Immediately, he was taken to nearest clinic and was subsequently treated in Nagaon Civil Hospirtal. Nagaon Sadar Police Station registered Nagaon P.S GDE No. 516 on 24.10.2001 with respect to the accident and proceeded on investigation. According to the claimant, he was subsequently treated by private doctor. But even thereafter he remained permanently and partially disabled. It is further stated that he was drawing salary of Rs.1500/- per month in addition to Rs.100/- as daily allowance. He also disclosed that the vehicle was covered by valid insurance under opposite party No. 2, National Insurance Co. Ltd. vide policy No.2000/6305702. 3. On being notified, opposite party No.1 did not appear and did not file any written statement but the opposite party No.2 insurance company appeared and submitted written statement denying liability and responsibility for making any payment. According to the insurance company, there was no permanent and partial disablement and the claim was based on false evidence. The learned WC Commissioner put the parties to prove their respective cases whereupon claimant examined himself as PW-1 and one Dr. Jadav Sarmah as PW-2. He exhibited as many as 12 documents. According to the insurance company, there was no permanent and partial disablement and the claim was based on false evidence. The learned WC Commissioner put the parties to prove their respective cases whereupon claimant examined himself as PW-1 and one Dr. Jadav Sarmah as PW-2. He exhibited as many as 12 documents. Exhbiit-1 is the Accident Information report, Exhibit-2 is the X-ray report. He also exhibited prescriptions issued by his doctor. The witnesses were thoroughly cross examined by the insurance company. On the other hand, opposite party No. 2 examined two witnesses from their side. DW-1 is one Md. Salamuddin who was an employee of Jasmin Pharmacy which had issued Exhibit-2 x-ray report. However, this witness stated that Exhibit-2 was never issued from their establishment and this he gave in writing vide Exhibit-ka. DW-2 is Dr. J Bebnath, Radiologist in whose name x-ray report was furnished by claimant. Dr. Debnath came in the witness box and stated on oath that he is radiologist but he did not give x-ray report. He denied the seal or signature appearing in Exhibit-2 to be his seal or signature. Thus, x-ray report produced by the claimant was unequivocally falsified by DW-2. This witness was thoroughly examined but his examination was not shaken in any way. Considering the material available on record, the WC Commissioner arrived at the following findings:- “The claimant has failed to establish by sound medical evidence that the injuries cost him any permanent disablement. The medical evidence adduced are found to be contradictory in nature. The claimant failed to establish that, the X-ray plates exhibited contain injury sustained by him. The radiologist has denied in clear terms that the report is not given by him and it is a fake report. Hence I am not in a position to accept that injured has suffered from any kind of permanent disablement.” 4. But even after recording such statement WC Commissioner in following paragraph proceeded to assess the compensation under Section 4(1)(d) of the Act and made the assessment for a maximum period of 5 years by accepting that claimant was drawing salary of Rs.4000/- per month. But even after recording such statement WC Commissioner in following paragraph proceeded to assess the compensation under Section 4(1)(d) of the Act and made the assessment for a maximum period of 5 years by accepting that claimant was drawing salary of Rs.4000/- per month. This judgment and order dated 11.1.2007 has been brought in question by the insurance company, inter alia, on the ground that the very purpose of the claim being a fake x-ray report, WC Commissioner ought not to have given any compensation in favour of the claimant who did not come with clean hands. While admitting this appeal, this court framed the following two substantial questions of law and issued notice to the parties:- (i) Whether the learned Commissioner, workmen Compensation erred in law in awarding compensation on the basis of a medical document which is proved as fake document? (ii) Whether the learned Commissioner for Workmen erred in law in assuming adjudication under Section 4(1)(d) of the Act for permanent disability more so when there was no application before the Commissioner for determination of compensation under Section 4(1)(d) read with Section 6 and 7 of the Act? 5. After receipt of the notice, the claimant appears to have engaged counsel to represent him. But when the matter is called up for hearing today, no one has put up appearance to defend the impugned judgment and award and under such circumstances, the appeal had to be heard exparte. 6. I have heard Mr. R Goswami, learned counsel for the appellant and none appears for the respondents. 7. As would appear from the impugned judgment that claimant demanded compensation of Rs.1,60,000/- in all along with interest on the allegation that he has suffered permanent and partial disablement owing to multiple grievous injuries on his chest and hip joint in addition to multiple abrasion over his head, forehead etc. To prove the multiple injuries, he examined the medical certificate of PW-2 and x-ray report as Exhibit-2. The insurance company in the present case appears to have acted with due diligence and examined two witnesses to show that the x-ray report was fake. Dr. J Debnath was shown to have issued Exhibit-2 x-ray report testifying grievous injuries on the person of the claimant. Exhibit-2 shows that there was communited fracture in the root of neck of the right femur. Coming to the witness box, Dr. Dr. J Debnath was shown to have issued Exhibit-2 x-ray report testifying grievous injuries on the person of the claimant. Exhibit-2 shows that there was communited fracture in the root of neck of the right femur. Coming to the witness box, Dr. J Debnath who is purported to have issued the report denied to have issued the same. He also denied his signature appearing on Exhibit-2. DW-1 came forward to depose that Jasmine Pharmacy did not issue the document i.e. Exhibit-1. Under such circumstance, the WC Commissioner was constrained to hold that the x-ray report is fake and that claimant had failed to prove permanent disablement. Once Exhibit-2 was found to be unreliable, virtually there remains nothing on record to hold that the claimant was at all disabled. WC Commissioner did not notice that the claimant did not have any other alternative material to prove his disablement which was either total or partial though temporary. But even thereafter he not only proceeded to presume that it was a case under section 4(1)(d) of the Act but he also went to the extent of presuming that disablement continued for a period of 5 years and thus assessed compensation under Section 4(1)(d) of the Act for 60 months. Such findings of the learned WC Commissioner without being first satisfied as to the total or partial temporary disability of the claimant vitiated the judgment and assessment of compensation under section 4(1) (d) of the Act. The pre-condition for passing an award of compensation under Section 4(1)(d) is that there has to be some disablement either partial or total. Once the WC Commissioner is satisfied that there was partial or total disablement, the next step is to ascertain for which period such disablement lasted. Only after arriving to such a finding on objective satisfaction and on the basis of materials available on record, the WC Commissioner can come to a finding that a claimant is entitled to compensation for temporary, partial or total disablement for such period. If such temporary disablement last for any period more than 5 years even in that case, the compensation would be paid for a maximum period of 5 years only. The WC Commissioner is not empowered to make an award for compensation for a maximum period of 5 years without arriving at a finding that the partial or total temporary disablement had lasted for such period. The WC Commissioner is not empowered to make an award for compensation for a maximum period of 5 years without arriving at a finding that the partial or total temporary disablement had lasted for such period. In the case in hand, no such finding or satisfaction is disclosed. Consequently, passing of judgment on the basis of unacceptable medical document appears to be unsustainable. The first substantial question of law is accordingly decided in favor of the appellant and against the claimant. The second substantial question of law does not appear to arise from the fact and circumstances of the case. There was no question of reviewing the position even after passing of the award and so facts and circumstances of the present case did not require filing of any application under Section 6 and 7 of the Act and accordingly, the second substantial question is not answered as it is not required to be answered. 8. Consequently, in view of the findings of the substantial question enumerated in Sl. No.1, impugned judgment and award is hereby set aside and the matter is remanded back to the learned WC Commissioner to ascertain as to whether there was any total or partial disablement at all and if so what period such disablement had lasted. After ascertaining the aforesaid two criteria, the WC Commissioner shall decide the quantum of compensation under Section 4(1)(d) of the Act pending such adjudication. Till such adjudication is made, the amount deposited by the insurance company shall not be disbursed, if not already disbursed. 9. The application stands allowed. LCR be returned forthwith.