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2015 DIGILAW 293 (GAU)

National Insurance Co. Ltd. v. Bapu Khan (MD. )

2015-03-11

NISHITENDU CHAUDHURY

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JUDGMENT & ORDER : Nishitendu Chaudhury, J. This appeal under Section 30 of the Workmen's Compensation Act, 1923 (herein after referred to as the Act) is directed against the judgment and award dated 22.08.2003 passed by the Workmen's Compensation Commissioner (for short, W.C. Commissioner), Tezpur, in WC Case No. 14 of 2002 allowing compensation of Rs. 1,15,756.18 with interest @ 9% per annum. 2. One Bapu Khan claiming to be driver under one Ashutosh Das (O.P. No. 1) lodged a claim petition before the W.C. Commissioner at Tezpur stating that on 14.03.2000 while driving 708 Mini Bus Numbering AS-02-8677 from Nagaon to Lanka he met with an accident at about 10.30 a.m. at Singarapatty due to sudden mechanical defect and consequently, the vehicle turned turtle on road side. The driver sustained severe injuries on his hand, chest and left ankle and other part of the body and handiman of the vehicle also sustained injuries. Immediately, he was shifted to Nagaon Civil Hospital and later on he was treated at Nagaon under Dr. J. Sharma. A police case being Kothatoli P.S. Case No. 16 of 2000 was registered on the basis of accident information reports. He claimed that he used to get Rs. 3,500/- per month as salary and L50 per day as daily allowance and that his age was 40 years as on the date of accident. The vehicle was duly insured with the National Insurance Company Ltd. at Nagaon Branch vide Policy No. 48/0302214 and was valid up to 23.03.2003. The claimant became permanently disabled owing to the accident and demanded that he be paid Rs. 5,00,000/- towards compensation. The owner who was arrayed as opposite party No. 1 in the preceding submitted a written statement and contested the case. However, it was mentioned that the vehicle was insured with Opposite Party No. 2 National Insurance Company Limited, Nagaon Branch under a valid policy and submitted relevant documents pertaining to the vehicle. 3. Opposite party No. 2 the National Insurance Company Ltd. has also submitted written statement and denied any responsibility. It also denied the accident, employment, salaries and injuries etc. The learned Court framed as many as 5 issues as follows upon the rival contention of the parties: "1. Whether the Court has jurisdiction to entertain the claim case? 2. Is there any cause of action for the claimant petitioner? 3. It also denied the accident, employment, salaries and injuries etc. The learned Court framed as many as 5 issues as follows upon the rival contention of the parties: "1. Whether the Court has jurisdiction to entertain the claim case? 2. Is there any cause of action for the claimant petitioner? 3. Whether the claim petition is maintainable in its present form? 4. Whether the opposite parties are liable to pay compensation as claimed by the claimant petitioner? 5. If yes, what relief is the claimant petitioner entitled to?" 4. The claimant examined two witnesses including himself as P.W. 1 and Dr. J. Sharma as P.W. 2. The Doctor stated that Exhibit-4 to 15 are the prescriptions and advised slips issued by him and Exhibit-17 is the injury report. He claimed to have examined the claimant Bapu Khan on 16.03.2000 and found that injuries mentioned in Exhibit-17. According to him, the physical disability of the claimant was 40% owing to the incident and he lost his earning capacity by 40%. He stated that the injuries are permanent in nature and the injured may not do his normal job. In course of his cross-examination, he stated that in the X-ray report it was clear that except fracture in fibula any other injuries were not found. According to him, it is difficult to drive the motor vehicle by a person having 40% injury on the left leg. However, if further treatment is there the physical ability may increase. After considering the aforesaid materials available on record the W.C. Commissioner was satisfied that claimant Bapu Khan was the driver of the vehicle and that he was injured in the incident. He sustained 40% loss of earning capacity. Considering the materials available on record the W.C. Commissioner held that monthly income of the workman would be Rs. 2,000/- and accordingly, assessment of compensation was calculated as follows: Rs. 1200X 40% X 184.17 = 88,401.60/- He was awarded interest @ 9 % per annum. Thus, the total amount was assessed at Rs. 1,15,756.18/-. This award was passed by impugned judgment dated 22.08.2003 which has been brought under challenge in the present appeal. 5. I have heard Mr. S.S. Sarma, learned Senior Counsel assisted by Mr. A. Sarma, learned counsel for the appellant. None appears for the respondents. 6. Thus, the total amount was assessed at Rs. 1,15,756.18/-. This award was passed by impugned judgment dated 22.08.2003 which has been brought under challenge in the present appeal. 5. I have heard Mr. S.S. Sarma, learned Senior Counsel assisted by Mr. A. Sarma, learned counsel for the appellant. None appears for the respondents. 6. This Court while admitting the appeal on 10.06.2004 did not frame any substantial question of law as required under Section 30 of the Act and so this Court after hearing the learned counsel for the appellant has framed the following substantial question of law: "Whether the W.C Commissioner, Tezpur, committed error in proceeding to assess compensation under Section 4(1)(c)(ii) of the Workmen's Compensation Act, 1923?" 7. The provision of Section 4(1)(a) is applicable when a workman dies in the accident. Provision of Section 4(1)(b) is applicable when the permanent disability is total in nature and Section 4(1)(c) applies when permanent disability is partial in nature. Partial disablement is defined under Section 2(1)(g) of the Act and the same is quoted below: "(g) 'partial disablement' means, where the disablement is of a temporary nature, such disablement as reduces the earning capacity of a [employee] in any employment in which he was engaged at the time of the accident resulting in the disablement, and, where the disablement is of a permanent nature, such disablement as reduces his earning capacity in every employment which he was capable of undertaking at that time: provide that every injury specified [in Part II of Schedule 1] shall be deemed to result in permanent partial disablement;" 8. Thus, on a bare perusal of the provision it would appear that a permanent partial disability is such disability where workman becomes disabled from every employment and not the particular employment wherein he was engaged at the time of accident. The scope of Section 2(g) came up for consideration on a number of times before different Hon'ble High Courts and after consideration of all these judgments, a Single Bench of this Court passed a detailed judgment in the case of National Insurance Company Ltd. v. Bimal Nath & Ors. reported in, 2009 (1) GLT 370. The scope of Section 2(g) came up for consideration on a number of times before different Hon'ble High Courts and after consideration of all these judgments, a Single Bench of this Court passed a detailed judgment in the case of National Insurance Company Ltd. v. Bimal Nath & Ors. reported in, 2009 (1) GLT 370. In Paragraph-24 of this judgment the Hon'ble Court has done detail illustration of the case of a driver for consideration and held that every employment mentioned in Section 2(g) of the Act does not refer to all types of employments, but it refers to the type of employment wherein the workman was skilled or accustomed to. Paragraph-24 of this judgment is quoted below: "24. From the aforesaid discussions, it is, therefore, clear that while assessing the compensation u/s 4(1)(c)(ii) what the learned Commissioner, is required to find out is- whether such disablement is of a permanent nature which reduces the earning capacity of the workman in every employment which he was capable of undertaking and not merely the particular employment in which he was engaged at the time of accident. For instance, if a Driver claims compensation contending that he suffers disablement of permanent nature, because of the injuries sustained by him, on his hands or legs, what is to be seen by the commissioner is whether such disablement reduces his earning capacity as Driver or reduces his earning capacity in any other employment which he was capable of undertaking, depending on his skill. The burden of proving the disability and the reduction of earning capacity is obviously on the workman who claims the benefit of the Act. If the Commissioner finds that though the workman's earning capacity has been reduced in the employment in which he was engaged at the time of accident but has not been reduced in respect of other employment, which he was capable of undertaking at the time of accident, depending on the skill, the compensation cannot be assessed under Section 4(1)(c)(ii) of the Act. In that event, the compensation has to be assessed under Section 4(1)(d) of the Act. In that event, the compensation has to be assessed under Section 4(1)(d) of the Act. The workman, however, by adducing acceptable evidence, can establish that because of the injury his earning capacity has not only been reduced in respect of the work which he was performing before the accident but also in respect of any other employment, depending on his skill and also the skill required for other works, which he was capable of undertaking at that time, in which event it would amount to 'permanent partial disablement', provided the disablement is of a permanent nature." 9. This means that if a driver claims compensation on the ground that because of a road traffic accident he became permanently disabled not only for the employment he was engaged in but also for any other employment of driving vehicle in that event such partial disability assumes permanent disablement in nature. A driver after being permanently disabled may be able to perform any other employment as Mason, as handiman or anything else. But that does not mean that he is not permanently disabled. He was skilled and appointed as driver and the only question which remains for consideration is whether he remains fit for being engaged as driver. Here in this case, the P.W. 2 Dr. J. Sharma proved a certificate given by him showing that the claimant had lost 40% of his earning capacity consequent to fracture in the left leg. Leg of a driver is an important organ of the body for driving vehicle. The doctor, therefore, deposed that the workman may not be in a position to drive vehicle in future. Even in cross-examination of the doctor it does not appear to have any aberration from this opinion. The W.C. Commissioner accepted the opinion of the doctor. The learned trial court always has an edge over the appealable court in appreciating evidence. It has the scope to have a look at the victim and to see the demeanour of the witnesses who deposed on oath. When the doctor was cross-examined, the Court might have noted his demeanour, his expression and body language. Expressions and body language of a witness helps a Court to a great extent to receive the message he wants to convey. When the doctor was cross-examined, the Court might have noted his demeanour, his expression and body language. Expressions and body language of a witness helps a Court to a great extent to receive the message he wants to convey. This is why in appreciation of evidence always importance is given to the assessment made by the trial court and appellate court normally does not interfere with the appreciation unless some glaring discrepancies are brought to the notice. The practise judging the truthfulness or credibility of a witness by examination not only his statement but also his demeanour and body language have always been recognised from past both in India and abroad. Perhaps it may not be out of place to mention that even in Manusmriti a reference is there to that effect in 26th verse in the 8th Chapter. It goes as follow: (what is there in the mind of the witness is understood by his gesture, tenor, efforts, words and change in the colour of eyes and face.) 10. The P.W. 2 has stated that the disability is permanent in nature. He has also stated that the workman may not be able to drive the vehicle any more. Cross-examination does not show that P.W. 2 is not a qualified medical practitioner or that he does not have necessary knowledge and experience to arrive at such an opinion. Apart from putting some suggestions, no effective cross-examination could be made so as to arrive at an opinion that either the report of the qualified medical practitioner is not correct or that he was not a qualified medical practitioner at all. Section 4(1)(c)(ii) of the Act requires that in case of nonscheduled injuries, assessment has to be made by the aid of the qualified medical practitioner. Here in this case, the same standard has been applied by the W.C. Commissioner and so no irregularity in decision making process is discernible. Having so found this Court does not find any scope to interfere with the judgment passed by the W.C. Commissioner, Tezpur. Accordingly, the appeal stands dismissed. 11. No order as to costs.