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Gauhati High Court · body

2015 DIGILAW 1403 (GAU)

Oriental Insurance Co. Ltd. v. Mukul Roy

2015-11-12

N.CHAUDHURY

body2015
JUDGMENT : The award dated 29.06.2006 passed by Commissioner, Workmen’s Compensation, Kamrup in W.C. Case No. 145/2003 of the said Commissionerate has been brought in question in the present appeal by the insurance company. The W.C. Commissioner by the impugned judgment and award dated 29.06.2006 arrived at the finding that the workman had suffered physical disability resulting in 40% loss of earning capacity and so he was entitled to compensation of Rs. 1,90,036/- along with interest at the rate of 9% per annum. The insurance company is stated to have deposited the full awarded amount before the jurisdictional W.C. Commissioner and thereafter preferred this appeal. This Court while admitting the appeal framed following 3 (three) substantial questions of law on 18.02.2008:- 1. Whether the daily allowances paid to the workman can form part of wages of the workman? 2. Whether the learned Commissioner can include daily allowances paid to the workman in monthly salary paid to the workman while assessing compensation? 3. Whether learned Commissioner can on his own without any evidence on record accept the monthly salary of the claimant at Rs. 3,600.00? 2. The appeal is based on simple facts. Appellant Mukul Roy lodged a claim under Workmen’s Compensation Act, 1923 (now re-designated as Employees’ Compensation Act, 1923 and hereinafter referred to as ‘the Act’) stating that he was engaged as handyman of bus bearing registration No. AMP-1619 belonging to one Pradeep Roy. On 30.12.2002, when the bus was proceeding towards Barpeta Road from Numberpara Bazar, it met with an accident on National Highway No. 31 at village Balapet under Sorbhog Police Station at about 8 am. The vehicle turned turtle on the left side of the road and consequentially the claimant handyman received grievous injuries to his person. He was taken to Barpeta Road P.H.C. for treatment but subsequently he had to receive further treatment from other doctors. But even thereafter he did not fully recover from the disablement. According to him, he had been permanently and partially disabled and so he was entitled to compensation under the Act. Sorbhog Police Station registered G.D. Entry being No. 711 on the same date with respect to this accident and conducted investigation. 3. On being notified, the opposite party No. 1 employer appeared and submitted written statement admitting the basic facts like employment of the workman and of his getting salary at the rate of Rs. Sorbhog Police Station registered G.D. Entry being No. 711 on the same date with respect to this accident and conducted investigation. 3. On being notified, the opposite party No. 1 employer appeared and submitted written statement admitting the basic facts like employment of the workman and of his getting salary at the rate of Rs. 1,500/- per month in addition to daily allowance of Rs. 70/-. The opposite party No. 2 insurance company, on the other hand, submitted a separate written statement and denied all the averments made in the claim petition. It is the case of the insurance company that the claimant was not entitled to any compensation whatsoever. Even the age and monthly salary of the claimant and occurrence of the accident was denied by the insurance company. 4. The W.C. Commissioner asked the parties to prove their respective cases whereupon the claimant examined himself as PW 1 and one Dr. Sanatan Das as PW 2. The insurance company examined both the witnesses but the employer did neither adduce any evidence himself nor did he cross examine any witness. Insurance company did not adduce any evidence of its own. Considering the evidence led by the claimant, the W.C. Commissioner arrived at the finding that the claimant had received 40% disability which is permanent and partial in nature and as a result of this he sustained 40% loss of earning capacity. The daily allowance was considered along with monthly salary and thereupon the W.C. Commissioner held that the workman was receiving monthly wage of Rs. 3,600/- and so the quantum of compensation was calculated as follows:- 60% of Rs. 3,600/- x 219.95 x 40% = Rs. 1,90,036/- Having arrived at the finding that the vehicle was covered by valid insurance of opposite party No. 2, the W.C. Commissioner directed the insurance company to make payment of the aforesaid amount along with interest at the rate of 9% per annum within a period of 30 days from the date of receipt of the copy of the order. 5. I have heard Mr. S Dutta, learned counsel for the appellant. No one has appeared on behalf of the claimant when the matter is called up for hearing although cause list displays the name of the learned counsel for the claimant. I have perused the lower court records including the exhibits and the depositions of the witnesses. 6. 5. I have heard Mr. S Dutta, learned counsel for the appellant. No one has appeared on behalf of the claimant when the matter is called up for hearing although cause list displays the name of the learned counsel for the claimant. I have perused the lower court records including the exhibits and the depositions of the witnesses. 6. As has been stated above, the appeal has been admitted on three substantial questions of law framed by this court under Section 30 of the Act. The appeal, therefore, has to be decided on the basis of these substantial questions of law. Mr. S Dutta, learned counsel for the appellant, argues that the W.C. Commissioner did not have any material before him to arrive at a finding that the claimant was being paid Rs. 3,600/- per month and so the finding of the W.C. Commissioner in respect of his salary is based on no evidence and so substantial question of law at serial No. 3, quoted above, is liable to be decided in favour of the claimant. He, however, in his usual fairness submits that the substantial questions of law No. 1 and 2 framed by this court are no longer required to be adjudicated as it has already been settled by the Hon’ble Supreme Court in the case of Md. Ameeruddin and another v. United India Insurance Co. Ltd. reported in (2011) 1 SCC 304 . The Hon’ble Supreme Court has already held in this reported judgment that daily allowance paid regularly to a workman in course of his service is definitely a part of his monthly salary. This being the position, the first two substantial questions of law referred to above do not require any adjudication as they stand already answered in view of the law laid down by the Hon’ble Supreme Court in the case of Md. Ameeruddin (supra). 7. To adjudicate the third question as to validity of finding in regard to monthly wage of the workman, this court has gone through the evidence led by the claimant. There is no other evidence on record on behalf of the opposite parties. Neither employer nor the insurance company did lead any evidence on their behalf. The insurance company only cross examined the witnesses of the claimant. There is no other evidence on record on behalf of the opposite parties. Neither employer nor the insurance company did lead any evidence on their behalf. The insurance company only cross examined the witnesses of the claimant. PW 1 in course of his evidence on oath stated that on 30.12.2002 he was working as a handyman in the bus bearing registration No. AMP-1619 belonging to one Pradeep Roy which was covered by insurance of opposite party No. 2. At 8 a.m. of the same day, the bus met with an accident while coming from Barpeta Road and as a result of the accident he received grievous injuries on his left shoulder, chest and on head. He was admitted to Barpeta Road P.H.C. for treatment. X-ray was taken of his left shoulder and chest on the next day and there it was found that there were fractures on 7th and 8th thoracic ribs as well as left shoulder. After removal of the plaster after 45 days, his injuries were found not healed. He had to continue treatment. According to him, because of the injuries, he was unable to do his earlier job. He stated that he was 22 years of age at the time of accident and he was receiving salary of Rs. 1,500/- per month in addition to Rs.70/- as daily allowance. He adduced as many as 13 documents as exhibits including Doctor’s prescription as Ext. 1 to 8, X-ray report as Ext. 9, medical certificate as Ext. 10, police report as Ext.11 and X-ray plates as Ext. 12 and 13. While the employer did not cross examine the witness at all, the insurance company made only the following cross examination:- “By the insurer- I have not submitted any medical prescription regarding my present treatments. I have not filed any salary certificate from the vehicle owner.” 8. It is thus obvious that in course of cross examination, the physical disability and the extent of loss of earning capacity of the victim has not been questioned. As a result, whatever statement has been made by the witness in course of his examination-in-chief have gone unrebutted. Facts remain that the oral evidence of PW 1 that he had suffered 40% physical disability resulting in 40% loss of earning capacity remained unaffected by the brief cross examination. The medical certificate given by the qualified medical practitioner is on record as Ext. Facts remain that the oral evidence of PW 1 that he had suffered 40% physical disability resulting in 40% loss of earning capacity remained unaffected by the brief cross examination. The medical certificate given by the qualified medical practitioner is on record as Ext. 10 which shows that the victim had undergone X-ray examination of the chest whereupon it was found that his 7th and 8th thoracic ribs were fractured. His left shoulder joint disclosed the fracture of upper end of the left humerus with a displacement of left humoral head. According to the doctor, the claimant could not have recovered permanently and have some amount of permanent disability and that he will not be able to do his earlier job as before. According to the content of the report, the claimant had suffered 40% permanent partial disability resulting in 40% loss of earning capacity. 9. The qualified medical practitioner who had issued Ext. 10 certificate was examined as PW 2. His name is Dr. Sanatan Das. He proved the certificate issued by him and proved his signatures appearing on the prescriptions as well. His categorical statement was that on 01.08.2003 he had examined the patient for the last time and found that the patient had not recovered. He had noticed 40% permanent partial disability of the victim resulting in 40% loss of earning capacity due to injuries sustained by him. According to the doctor, he would not be able to do his earlier job. This witness was also not cross examined by the employer whereas a very brief examination was done by the insurance company as follows:- “By the O.P. insurer- At the time of accident I did not treat the patient. I did not ask for fresh X-ray at the time of issuing medical certificate though there are unions of bones, he has not recovered permanently.” 10. From perusal of the evidence led by the PW 2 doctor, it appears that his opinion as to physical disability and loss of earning capacity of the claimant was specific. The doctor clearly stated that the claimant had suffered from permanent and partial disability to the extent of 40% resulting in 40% loss of earning capacity. Not a question has been put to him in course of cross examination in regard to veracity of these statements. The doctor clearly stated that the claimant had suffered from permanent and partial disability to the extent of 40% resulting in 40% loss of earning capacity. Not a question has been put to him in course of cross examination in regard to veracity of these statements. Even a suggestion has not been given that the findings of the qualified medical practitioner were not based on materials on record or that the same were erroneous. The specific stand taken by the qualified medical practitioner in regard to permanent partial disability of the claimant and the consequent loss of earning capacity has not at all been questioned in course of cross examination which is only indicative of the fact that the stand taken by the witness has gone unrebutted. Under such circumstances, the W.C. Commissioner has not committed any error in accepting the assessment made by the qualified medical practitioner under Section 4(1)(c)(ii) of the Act. The finding of the W.C. Commissioner in regard to permanent partial disability and consequent loss of earning capacity cannot be said to be perverse. Coming to the finding of the W.C. Commissioner that the workman was getting monthly wage of Rs. 3,600/-, it is to be noted that not only the claimant had stated so on oath coming to the witness box but the employer who is none other than opposite party No. 1 in the proceeding, had specifically admitted by filing written statement that the claimant was engaged by him with respect to the vehicle in question and that he was getting monthly salary of Rs. 1,500/- in addition to daily allowance of Rs. 70/-. The insurance company did not put any question to the claimant in regard to veracity of these statements. They did neither lead any evidence nor did they take any step for examining the employer in regard to correctness or otherwise of the statement as to the monthly wage of the workman. After all, the pleading of the opposite party No. 1 supports the plea of the claimant that he was drawing salary of Rs. 1,500/- per month and that he was getting daily allowance of Rs. 70/-. After all, the pleading of the opposite party No. 1 supports the plea of the claimant that he was drawing salary of Rs. 1,500/- per month and that he was getting daily allowance of Rs. 70/-. As has been pointed out above, the evidence led by the claimant in regard to his income has not been questioned by the insurance company in course of cross examination and no foundation has been laid to argue at this stage that the W.C. Commissioner had no material before it to arrive at such finding. Having so found, it is clear that the W.C. Commissioner has relied on unrebutted evidence led by the claimant. This claim of the claimant stands admitted by the employer in its written statement which is an admission within the meaning of Order XII Rule 6 of the Code of Civil Procedure. Under such circumstances, the third substantial question of law does not arise from the facts and circumstances of the case and it is accordingly answered. Consequently, the appeal fails and the same is dismissed. 11. Send down the records to the Commissioner, Workmen’s Compensation immediately. 12. Interim order, if any, stands automatically vacated. 13. The W.C. Commissioner shall issue a notice to the claimant immediately so as to release the balance unpaid amount of the deposited money to the workman without further delay.