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Gauhati High Court · body

2015 DIGILAW 1404 (GAU)

National Insurance Co. Ltd. v. Mahadev Das

2015-11-12

N.CHAUDHURY

body2015
JUDGMENT : This appeal under Section 30 of the Workmen’s Compensation Act, 1923 (now re-designated as Employees’ Compensation Act, 1923 and hereinafter referred to as ‘the Act’) has been preferred by the National Insurance Company Limited challenging the judgment and award dated 05.09.2007 passed by W.C. Commissioner at Guwahati in W.C. Case No. 134/2004. Upon admission of the appeal on 07.03.2008, notices were duly served on the claimant and the owner of the vehicle whereupon the claimant put up appearance by engaging a learned counsel whose name has been shown in the cause list. It is submitted at the bar that the learned engaged counsel is no longer in the profession. Under such circumstances, Mr. S.K. Goswami, learned counsel, who is present in the Court, is requested to argue the case as amicus curiae and the learned counsel readily acceded to the request. 2. The basic facts involved in this appeal are simple. One Mahadev Das filed a claim petition before the W.C. Commissioner at Kamrup, Guwahati stating that he was engaged as driver of bus No. AS-15/2955 belonging to one Saranga Das, the opposite party No. 1 of the proceeding, at a monthly salary of Rs. 4,200/- including daily allowances. On 13.09.2004 while he was driving the vehicle from Guwahati towards Barpeta, it met with an accident at Dolma under Kamalpur Police Station resulting in grievous injuries on his left foot, left ankle joint, left forehand and in the scalp. Kamalpur Police Station registered G.D. entry vide No. 368 on the same day and held investigation. The claimant driver was brought to Barpeta Civil Hospital and was examined by the doctor. He claims to have been permanently disabled through the injury sustained by him. The claimant further disclosed that the vehicle was under valid insurance coverage of the National Insurance Company Limited at its Barpeta Road Branch vide Policy No. 200702/31/03/6301565. The claimant was of 31 years of age at the time of the accident as disclosed in the claim petition. 3. On being notified, the owner of the vehicle being opposite party No. 1 did not appear and did not file any written statement and so the proceeding was held ex-parte against him. The opposite party No. 2, National Insurance Co. Ltd., however, appeared and submitted written statement denying the claim as well as the basic facts alleged in the claim petition. The opposite party No. 2, National Insurance Co. Ltd., however, appeared and submitted written statement denying the claim as well as the basic facts alleged in the claim petition. Faced with such rival contentions of the parties, the jurisdictional W.C. Commissioner asked the parties to lead their respective evidence. The claimant examined himself as PW 1 and one Dr. S.C. Sarma as PW 2. The insurance company cross examined these two witnesses and by filing an application, the insurance company made a prayer for further medical examination of the claimant under Section 11 of the Act. The insurance company examined one Kalpa Deka, Administrative Officer of National Insurance Company Limited and adduced some documents. But forgetting that the insurance company had made a prayer for examination of the claimant by another doctor and eventually the same was denied by him, the W.C. Commissioner made an observation that the insurance company did not adduce any medical witness to disprove the evidence given by the attending doctor of the claimant. The W.C. Commissioner by his order dated 29.08.2006 rejected the application and did not give any opportunity for further examination of the claimant. Thereafter, considering the evidence available on record, the W.C. Commissioner arrived at the finding that the claimant had suffered permanent partial disability to the extent of 30% resulting in 30% loss of earning capacity. Be that as it may, accepting the monthly salary of the claimant at Rs. 4,200/- and his age as 31 years, the W.C. Commissioner assessed the compensation under Section 4(1)(c)(ii) of the Act at Rs. 1,36,483/- by his judgment and award dated 05.09.2007. It is this judgment and award which has been brought under challenge in the present appeal. 4. This court while admitting the appeal on 07.03.2008 did not frame any substantial question of law as required under Section 30 of the Act and so after hearing the learned counsel for the parties, this court has framed the following substantial question of law:- “Whether the finding of the W.C. Commissioner that the claimant suffered permanent partial disability to the extent of 30% resulting in 30% loss of earning capacity is perverse?” 5. I have heard Mr. R Goswami, learned counsel for the appellant as well as Mr. S.K. Goswami, learned Amicus Curiae on this substantial question of law. I have also perused the lower court records including the evidence adduced by both the sides. I have heard Mr. R Goswami, learned counsel for the appellant as well as Mr. S.K. Goswami, learned Amicus Curiae on this substantial question of law. I have also perused the lower court records including the evidence adduced by both the sides. 6. The PW 1 in course of his examination in chief stated that on 13.09.2004 while he was driving the vehicle from Khanapara to Barpeta, the vehicle met with an accident at Dolma gate due to brake failure. The bus hit a standing truck on one side and as a result, the claimant sustained injuries to left foot, little toe of the left, head, chest etc. He then went to Barpeta Road Civil Hospital by another bus and X-ray was done on the following day. Plaster was applied to his foot but he did not produce the X-ray plate. According to him, the X-ray plate was written by the hospital. He claimed that the plaster was retained for two months and even after removal of the plaster he continued feeling pain on his foot. He proved doctor’s prescription as Ext. 1, X-ray report as Ext. 2 (under objection), Medical certificate as Ext. 3 and the police report as Ext. 4. He stated that he was unable to drive vehicle and so he was unemployed. In course of cross examination, the claimant disclosed that he does not have any age proof certificate and did not file salary certificate. He did not file driving license and denied that he does not have any driving license at all. He proved injury certificate as Ext. 3 and admitted that the certificate does not testify as to whether he cannot drive a vehicle any more. However, he agreeable to surrender his driving license, if so required. He admitted that he could walk but he feels pain on his foot while walking. 7. The qualified medical practitioner, Dr. S.C. Sarma, was examined as PW 2 who stated that the claimant sustained four injuries over his body due to the accident out of which one injury resulting in painful swelling over lateral part of left foot was grievous in nature. X-ray examination showed fractured dislocation of metatarso-phalangeal joint of left small toe. According to him, the disablement was 30% and loss of earning capacity was 30%. X-ray examination showed fractured dislocation of metatarso-phalangeal joint of left small toe. According to him, the disablement was 30% and loss of earning capacity was 30%. In course of cross examination, he admitted that he did not consider the provision of the Act while assessing disability and loss of earning capacity. He did not advise for any X-ray after removal of the plaster as in his opinion such type of fracture cannot completely heal. He disclosed that the disability certificate issued to him on 13.11.2004 was not based on documentary evidence like X-ray but based on external clinical examination only. He also admitted that the basis of certifying 30% disability resulting in 30% loss of earning capacity are not based on medical standards of the W.C. Act but on the subject of satisfaction. 8. The insurance company examined one Kalpa Deka, Administrative Officer of National Insurance Company Limited as DW 1 who stated on oath that one Hemanta Kr. Sarma was engaged by the insurance company for investigation into the matter and thereupon Ext. A report was submitted by him. As per the investigation report, driving license of the claimant was renewed on 01.03.2005 which was valid upto 28.02.2008. He further disclosed that the accident had taken place on 13.09.2004 and the driving license was renewed thereafter indicating that the claimant was in need of driving license even after the accident had taken place. The DW 1 suggested that the claimant was not disabled from driving the vehicle for which he had got his driving license renewed. The investigator Sri Hemanta Kr. Sarma was not examined by the insurance company to prove this fact. Considering all these materials, the W.C. Commissioner held that PW 2 had attended the claimant after the accident on 13.09.2004. He assessed the physical disability and the percentage of loss of earning capacity. But it does not appear that the W.C. Commissioner has arrived at any finding regarding permanent and partial disability and loss of earning capacity on the basis of the assessment by the qualified medical practitioner but proceeded to assess the compensation under Section 4(1)(c)(ii) of the Act. He assessed the physical disability and the percentage of loss of earning capacity. But it does not appear that the W.C. Commissioner has arrived at any finding regarding permanent and partial disability and loss of earning capacity on the basis of the assessment by the qualified medical practitioner but proceeded to assess the compensation under Section 4(1)(c)(ii) of the Act. The insurance company having laid foundation in course of cross examination that PW 2 did not consider the provisions of the Act before assessing physical disability and/or loss of earning capacity of the claimant, it was incumbent upon the W.C. Commissioner to see as to whether the assessment, so made by the qualified medical practitioner, was in conformity with the provisions of Part-II of Schedule I to the Act. Mr. R Goswami, learned counsel for the appellant, submits that under entry No. 41 of Part II of Schedule I to the Act, loss of any other toe through metatarso-phalangeal joint would result in 3% loss of earning capacity and so a mere fracture on the same toe cannot result in 30% physical disability and/or 30% loss of earning capacity. He argues that under Explanation II to Section 4(1)(c) of the Act, the qualified medical practitioner is duty bound to assess loss of earning capacity having due regard to the percentage of loss of earning capacity in relation to different injuries specified in Schedule I of the Act. Obviously, the PW 2 did not keep in mind the provision of entry No. 41 of Part II to Schedule I of the Act while assessing loss of earning capacity in the case in hand and so such assessment of loss of earning capacity is no assessment in the eye of law and consequently, the W.C. Commissioner committed error in making assessment of compensation upon such assessment of the qualified medical practitioner. 9. Mr. S.K. Goswami, learned amicus curiae appearing in this case, submits that when loss of any other toe of the left foot would result in 3% loss in earning capacity, obviously fracture of the small toe of the left foot could not have resulted in 30% disability or 30% loss of earning capacity as claimed by the PW 2. Such assessment by the qualified medical practitioner is vitiated by non-compliance of the provision of Explanation II under Section 4(1)(c)(ii) of the Act. Such assessment by the qualified medical practitioner is vitiated by non-compliance of the provision of Explanation II under Section 4(1)(c)(ii) of the Act. I have seen the disability certificate and the evidence led by the PW 2. This witness was specifically asked by the insurance company as to whether he had considered the provision of W.C. Act at the time of making the assessment of loss of earning capacity and upon such pointed question, the unambiguous reply of PW 2 that he did not rely on the provisions at all. He also admitted that he did not rely on any guideline of medical jurisprudence in making the assessment but merely relied on his subjective satisfaction. At this stage, the evidence of DW 1 also deserves some consideration. This witness stated that driving license was renewed after the accident had taken place which is only suggestive of the fact that the claimant was capable of driving any vehicle even after the accident had taken place. 10. Section 4(1)(c)(ii) of the Act vests duty and responsibility on a qualified medical practitioner to make assessment of loss of earning capacity of a workman consequent to injury sustained by him during course of employment. But a qualified medical practitioner cannot arbitrarily assess the loss of earning capacity. He must have a basis for doing so. What should be the basis and guidelines has been indicated in Explanation II to Section 4(1)(c)(ii) and thereby it has been mandated that a qualified medical practitioner shall be guided by the percentage of loss of earning capacity as prescribed under different injuries specified in schedule I. As has been pointed out by Mr. R Goswami, loss of a toe of the left foot by way of amputation or otherwise results in 3% loss of earning capacity. Here in the present case, the workman had sustained fracture to this toe and there was no loss of the same. Even if such fracture amounts to loss of the toe then this can, at best, result in loss of earning capacity to 3% but in no case such loss of earning capacity can go upto 30%. The claimant in the present case is a driver of a vehicle. Even if such fracture amounts to loss of the toe then this can, at best, result in loss of earning capacity to 3% but in no case such loss of earning capacity can go upto 30%. The claimant in the present case is a driver of a vehicle. Even if he loses a toe of the left foot, this may not cause substantial disablement in driving a vehicle and perhaps this is why legislature in its wisdom has quantified the loss of earning capacity at 3% for such injuries. The legislature having given indication in this regard, the qualified medical practitioner was duty bound to make assessment of the loss of earning capacity having due regard to such indication but the same not having been done the assessment appears to have been vitiated. Consequently, the sole substantial question of law is decided in favour of the appellant holding that the W.C. Commissioner committed error in allowing compensation to the workman on the presumption that he had sustained 30% loss of earning capacity. 11. The appeal stands allowed and the impugned judgment and award is hereby set aside. The matter is remanded back to the W.C. Commissioner for making assessment afresh after allowing the parties to lead their respective evidence. The same shall be done within a period of 6 (six) months from the date of receipt of records. No order as to costs. 12. Before parting, this court keeps on record the valuable service rendered by Mr. S.K. Goswami as learned amicus curiae in passing this judgment. The W.C. Commissioner shall issue notices to the parties after receipt of the records fixing a date of their appearance and shall thereafter proceed with the case.