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Gauhati High Court · body

2015 DIGILAW 207 (GAU)

UNITED INDIA INSURANCE CO. LTD. v. SAMSUL HAQUE

2015-02-20

N.CHAUDHURY

body2015
ORDER (ORAL) By this appeal under Section 30 of the Workmen’s Compensation Act, 1923, insurance company has challenged the judgment and award dated 15.06.2005 passed by the Commissioner, Workmen’s Compensation, Nagaon in N.W.C. Case No. 180/2002 thereby awarding compensation of Rs. 88,677/- in favour of the claimant. The claimant was a labourer engaged by the opposite party No. 1, owner in his truck bearing registration No. ASZ 1191. 2. On 06.03.2002 at about 11.30 a.m. when the workman was proceeding with the truck as labourer towards Daiparagaon from Jagiroad by loading sand on it, he met with an accident at Daiparagaon when the truck turned turtle on the road side while giving pass to another vehicle. As a result, the claimant sustained injuries at his feet and he was taken to B.P. Civil Hospital, Nagaon and was treated as outdoor patient vide registration No. 7249 dated 07.03.2002. A corresponding police case was registered by Jagiroad P.S. vide Jagiroad P.S. GD Entry No. 118 dated 06.03.2002. The X-ray photograph of the injured was taken and it was found that there was a fracture at the posterior side of tibia bone. The claimant raised claim before the jurisdictional Workmen’s Compensation Commissioner (hereinafter referred to as ‘the WC Commissioner’). Notices were sent not only to the owner but also to the insurer of the truck. Upon receipt of notices, the opposite parties contested the case and thereupon claimant examined two (2) witnesses including the doctor and exhibited prescriptions, X-ray requisition slip, X-ray plate and report etc along with medical certificate issued by the doctor, PW 2. In the medical report Ext. 4, the doctor opined that X-ray report revealed fracture in posterior part of the lower third of the left tibia. The patient developed chronic osteo arthritis of left knee and ankle which made him 15% disabled permanently and reduced his earning capacity by 30%. Neither in the report nor in the deposition of PW 2 (Dr. Durgeswar Borah) there is any statement that such ability is permanent in nature. The doctor also did not say whether such disablement resulted from the accident and rather he highlighted on the intensity of chronic osteo arthritis suffered by the victim. Neither in the report nor in the deposition of PW 2 (Dr. Durgeswar Borah) there is any statement that such ability is permanent in nature. The doctor also did not say whether such disablement resulted from the accident and rather he highlighted on the intensity of chronic osteo arthritis suffered by the victim. Be that as it may, learned trial court passed the impugned judgment and award on 15.06.2005 holding that the victim was physically incapacitated to the extent of 15% and he had loss of earning capacity to the tune of 30%. Having so found, accepting his income at Rs. 3,000/- per month, the Workmen’s Compensation Commissioner, Nagaon assessed his income by applying the standard of Section 4(1)(c)(ii) of the Workmen’s Compensation Act, 1923. It is this judgment which has been brought under challenge in the present appeal. 3. I have heard Mr. SS Sharma, learned senior counsel assisted by Mr. A Sarma for the appellant insurance company and Mr. MA Sheikh, learned counsel for the claimant workman. I have perused the evidence on record including exhibits and the depositions of the witnesses. 4. Mr. SS Sarma, learned senior counsel, submits at the threshold that at the time of admission of this appeal, this court stayed operation of the impugned judgment and award subject to the condition that 50% of the awarded amount is deposited by the insurance company with the jurisdictional Workmen’s Compensation Commissioner and accordingly the insurance company deposited entire awarded amount. It is stated that at the time of presentation of appeal itself, the amount was deposited as required by law. Mr. SS Sharma, however, proposed at the threshold that since this court was pleased to permit deposit of the 50% of the awarded amount only, perhaps, ends of justice will be met if without entering into the substantial question of law, this amount is disbursed to the workman. Mr. MA Sheikh, learned counsel for the claimant accepts the proposal subject to the enhancement of the amount to Rs. 50,000/-. Since the parties have entered into out of court adjustment, nothing remains in the present appeal. The substantial question of law is not required to be answered. The appeal stands disposed of. 5. The workman/claimant shall be permitted to withdraw Rs. 50,000/- from the deposited amount by the appellant herein with the Workmen’s Compensation Commissioner, Nagaon and balance amount shall be returned to the insurance company. The substantial question of law is not required to be answered. The appeal stands disposed of. 5. The workman/claimant shall be permitted to withdraw Rs. 50,000/- from the deposited amount by the appellant herein with the Workmen’s Compensation Commissioner, Nagaon and balance amount shall be returned to the insurance company. 6. No order as to costs. 7. Interim order, if any, stands automatically vacated.