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2015 DIGILAW 501 (GAU)

New India Assurance Co. Ltd. v. Dinesh Roy

2015-04-29

RUMI KUMARI PHUKAN

body2015
JUDGMENT Rumi Kumari Phukan, J. 1. I have heard Mr. S.S. Sarma, learned senior counsel for the appellant and Mr. S.K. Barkataki, learned counsel for respondent No. 1/claimant. 2. This is an appeal under Section 30 of the Workmen's Compensation Act, 1923, preferred against the judgment & order dated 18.01.2006 passed by the Commissioner, in N.W.C. Case No. 12 of 2003 awarding Rs. 3,81,222.00 in favour of the claimant and against the appellant as insurer. 3. The respondent No. 1/claimant Sri Dinesh Roy, lodged a claim petition before the Commissioner, Workmen's Compensation Act, vide Nagaon W.C. Case No. 12/2003, claiming compensation for injury he sustained in an accident arising out of his employment. Brief facts of the claimant's case can be narrated as below: The claimant was the Driver with valid driving license No. 6695/01/NGG in the Vehicle No. AS-02/1175 (Mini Truck) owned by the O.P. No. 1. It is the case of the claimant that on 16.11.2002, the said vehicle was proceeding from Nagaon towards Chaparimukh and due to some mechanical problems, the vehicle was stopped by the claimant on the left side of the road at Pub-Salmara. Another vehicle coming from opposite side dashed the side vehicle at about 1.15 A.M. After the accident, a police case being GDE No. 396 dated 16.11.2002 was registered with Raha Police Station. In that accident, the claimant, above mentioned, got severe injury and he was admitted to B.P. Civil Hospital, Nagaon, and then he was shifted to Guwahati Medical College & Hospital and on 21.11.2002, he was shifted to Brahmaputra Hospital Ltd., at Guwahati. The claimant was 25 years old at the time of the accident and he was earning Rs. 3,000/- p.m. including daily allowance @ Rs. 100/- per day in course of his employment. He approached the employer for compensation but the employer did not pay him any compensation. The claimant submitted along with his claim petition, the police report, medical papers, driving licence, etc. The opposite parties also submitted their written statements. The O.P. No. 1 admitted the employment of the claimant in her vehicle No. AS-02/1175 (Mini Truck). She also admitted the accident and injury of the claimant. She stated that the claimant was drawing Rs. 3,500/- p.m. including allowances. The opposite parties also submitted their written statements. The O.P. No. 1 admitted the employment of the claimant in her vehicle No. AS-02/1175 (Mini Truck). She also admitted the accident and injury of the claimant. She stated that the claimant was drawing Rs. 3,500/- p.m. including allowances. She stated that the vehicle had the valid insurance coverage with the O.P. No. 2 under Policy No. 3153020918073 and therefore, under terms of the policy, the O.P. No. 2 is liable to indemnify for and on behalf of her (the O.P. No. 1) for the injury sustained by Sri Dinesh Roy, the claimant. The O.P. No. 2 denied the contents of the claim petition. It has not been denied having valid policy of the offending vehicle but stated that, it will be liable to pay compensation only when it is satisfactorily proved that there is a proper and valid policy of insurance covering risk of the owner. The claimant adduced his evidence as PW-1 and Dr. B.K. Borah, Member, District Medical Board, adduced his evidence as PW-2. Upon the pleading of both the parties, the Commission framed the following issues to decide the case: (i) Whether there is any cause of action in the claim petition filed by the claimant? (ii) Whether the accident took place in course of and out of the employment of the claimant? (iii) Whether the claimant sustained injury in an accident? If so, what was loss of percentage of physical disability and loss of earning capacity thereof? (iv) What was the age and salary of the claimant at the time of accident? (v) Who will be liable to pay compensation? What will be the quantum? The Workman, in support of the claim, examined 2(two) witnesses, i.e. himself and the Medical Officer, who issued the Ext.-4, Medical Report and also exhibited Nos. of documents pertaining to his treatment, and the cost incurred in the treatment. The owner of the vehicle or the Insurance Company adduced no evidence. However, witnesses were cross-examined by the Insurance Company. After conclusion of hearing, the learned Commissioner, Nagaon, gave award to the claimant/Respondent No. 1 of Rs. 3,81,222.00 with 9% interest per annum and the O.P. No. 2/appellant Insurance Co., was directed to pay the award. 4. Being aggrieved by the said award, the Insurance Company has preferred the instant appeal, on the limited points. After conclusion of hearing, the learned Commissioner, Nagaon, gave award to the claimant/Respondent No. 1 of Rs. 3,81,222.00 with 9% interest per annum and the O.P. No. 2/appellant Insurance Co., was directed to pay the award. 4. Being aggrieved by the said award, the Insurance Company has preferred the instant appeal, on the limited points. It is to be noted that the insurance company/appellant has not challenged the factum of employment as an occupation, wages, etc., of the Workman/claimant, neither challenged the factum of accident arising out of and in course of employment involving the vehicles, in question. The basic grievance raised by the appellant is pertaining to the assessment so made by the Commissioner while assessing the disability of the claimant. The learned counsel for the appellant Mr. Sarma, has vehemently submitted that the learned Commissioner has passed the award under Section 4(1)(c)(ii) without first ascertaining as to whether the injury suffered by the Workman resulted in permanent or partial disablement. Further, it was also not considered the aspect that even in case of permanent or partial disablement, the loss of earning capacity of the workman concerned for the purpose of sub-clause (ii) of Clause (c) of sub-Section 1 of Section 4 of the Act, has to be assessed, by the qualified medical practitioner with due regard to the percentage of loss of earning capacity as per Schedule 1. In the given case, the medical certificate (Ext.-4) so issued by the Medical Officer, is not acceptable as not issued by the competent person. The workman/claimant is stated to be a neurological person but the Doctor who examined the claimant was neither a neurological surgeon nor it has assessed any percentage of disability having regard to the loss of earning capacity of the claimant. 5. Referring to Section 2(1)(g) of the Act, which defines 'partial disablement', Mr. Sarma, learned counsel, has submitted that such partial disablement may be of temporary or of a permanent nature, depending on, as to whether such disablement has reduced the earning capacity of a workman in any employment in which he was engaged or in every employment which he was capable of undertaking at the time of accident. Mr. Sarma, learned counsel, has submitted that such partial disablement may be of temporary or of a permanent nature, depending on, as to whether such disablement has reduced the earning capacity of a workman in any employment in which he was engaged or in every employment which he was capable of undertaking at the time of accident. Mr. Sarma, learned counsel, has further submitted that if the earning capacity in the employment, in which the workman was engaged, has been reduced because of the disablement, it would be temporary partial disablement and in that case, such workman would be entitled to the compensation not under section 4(1)(c)(ii) but under Section 4(1)(d) of the Act. According to him, the provisions of Section 4(1)(c)(ii) would be applicable when the concerned workman could prove that the disablement which he has suffered has reduced his earning capacity in every employment which he was capable of undertaking at the time of accident, meaning thereby, not the employment which he performed at the time of accident, but in any other employment, which he was capable of undertaking. 6. Mr. Sarma, learned counsel, raising doubt over the authenticity of Ext.-4, has urged that the Ext.-4 i.e. the Disability Certificate so produced before the Commissioner, was not at all a reliable piece of document inasmuch as neither the date of issuance of the said certificate was legible and ascertainable nor the same was issued after examining the claimant inasmuch as in his evidence, the claimant clearly stated that at the time of handing over Ext.-4 to him, one person asked him to sit and thereafter, handed over the said document to him and thereby clear indication that the said certificate was not issued on the basis of proper examination of the physical condition of the claimant but a got-up one. 7. The further contention of the learned counsel for the appellant was that the Doctor (DW-2) in his cross-evidence stated that Ext.-4 was issued after going through the Ext.-7, CT scan report of brain, dated 27.11.2002; and when admittedly, the treatment of the claimant was going on. 7. The further contention of the learned counsel for the appellant was that the Doctor (DW-2) in his cross-evidence stated that Ext.-4 was issued after going through the Ext.-7, CT scan report of brain, dated 27.11.2002; and when admittedly, the treatment of the claimant was going on. In such a scenario, it was not safe to rely upon the said report to issue the disability certificate since the extent of disability, whether permanent or temporary, could have been determined only upon completion of the treatment, and as such, it was highly improper on the part of the learned Commissioner to arrive at a conclusion that the injured claimant suffered 100% loss of earning capacity since neither the evidence of the Doctor nor the certificates, Ext.-4 and 7, could have been any help to arrive at such a conclusion. The learned Commissioner ignored the pertinent fact at the time of issuance of the said certificates that the treatment was going on and the recovery from the ailment after the course of treatment, was not reflected in the same. 8. It has also been contended by Mr. Sarma, learned counsel for the appellant Insurance Company, that the learned Commissioner, Nagaon, ought to have taken note of the fact that the plea of loss of hearing capacity and also of blurred vision was not mentioned in the claim petition and these disablements falsely brought on record during the time of evidence without any legal basis or justification, and moreso, when the claimant himself had admitted that these ailments were not present at the time of filing the claim petition. 9. Apart from the above contentions raised by the learned counsel for the appellant Insurance Company, it has been urged that the learned Commissioner, Nagaon, when having come to the conclusion that the injuries sustained by the claimant were non-schedule injuries ought not have come to a conclusion that the injured/claimant suffered loss of earning capacity to the extent of 100% merely by making an observation that during the recording of evidence, the claimant was found to be hard of hearing and that his hearing capacity was impaired because of the accident; inasmuch as there were no materials to like the alleged loss of hearing with the accident. 10. 10. Furthermore, it has been strongly contended by the learned counsel that though the claim of the claimant/workman was that he was taken to GMCH, Brahmaputra Hospital, but not a single piece of paper of undergoing any treatment at those hospitals including discharge reports were submitted and hence, adverse presumption ought to have been drawn that injured claimant was cured completely and these were withheld to suppress the said fact and false evidence was led by feigning such impairment of hearing and vision. The impugned award so passed by the said Commissioner basing on unreliable evidence is basically unjust and unrealistically high and the same is liable to be set aside. 11. Another submission put forwarded by the learned counsel for the appellant company is that the learned Commissioner unjustly passed an award imposing interest against the appellant insurer in clear disregard to the binding decision of the Apex Court wherein it has been clearly laid down that insurer cannot be made liable to pay interest in terms of the policy since under the policy, only indemnification to the extent of compensation payable, is given to the insured and no liability is undertaken to pay the interest. 12. The learned counsel for the appellant Insurance Company, Mr. Sarma, for the foregoing reasons, has contended that the impugned judgment & order dated 18.01.2006 passed by the learned Commissioner, Workmen's Compensation, Nagaon, is bad in law and he has therefore strongly urged that the same be set aside. 13. Refuting the arguments so advanced by the learned counsel for the appellant Insurance Company, it has been contended by the learned counsel for the respondent/claimant Mr. Barkakati, that the appellant want to hammer on the point that the respondent/workman can do the other works apart from driving so his earning capacity cannot be assessed as a total disablement but the fact is equally true that the respondent claimant is still unemployed and the employer has not offered any other alternative job. A man of young age cannot sit without any occupation in the present day context. Further, it has been argued that the challenge made by the learned counsel for the appellant as regards the authenticity of the Ext.-4, medical certificate, and the capacity of the medical officer to issue the same, is of no consequence as the Act nowhere provided that medical certificate is to be issued by a Specialist only. 14. Further, it has been argued that the challenge made by the learned counsel for the appellant as regards the authenticity of the Ext.-4, medical certificate, and the capacity of the medical officer to issue the same, is of no consequence as the Act nowhere provided that medical certificate is to be issued by a Specialist only. 14. The law itself used the word 'qualified medical practitioner' and while explaining the 'qualified medical practitioner', section2(h)(i) of the Act means any person registered under any Act of a State providing for maintenance of a register of medical practitioners or in any area where no such last mentioned act is enforce, any other person, declared by the State Government by notification in the Official Gazette to be qualified medical practitioner for the purpose of the Act. 15. Having regard to the provision aforementioned, it has been pointed out that there is no provision in the Act that such person is to be examined by a Specialist. The claimant of this case has been examined by a Board of qualified medical practitioners/doctors and one of whom, has been examined by the claimant and who had testified that they had issued the Ext.-4 after due examination of the claimant. Similarly, the fact that they had relied upon the Ext.-7, CT scan report of the brain of the claimant, cannot be challenged by the appellant Insurance Company because it is an authentic report generated by a mechanical process by the Expert Doctor about the injuries sustained by the claimant immediately after accident. Now, the fact that the claimant did not complain of loss of hearing, blurred vision, in the claim petition, also equally cannot be a ground to reject the case of the claimant in view of the fact that such complicacies may arose even after a few months of the occurrence/accident while victim sustained severe brain injury. The occurrence took place on 16.11.2002 and the claim case was filed on 21.01.2003 i.e. after around 2 months of the accident and the MRI was done on 27.11.2002. The report in the MRI reveals that there was left temporoparietal intracranial haemorrhage with minimal mass effect and midline shift of 3mm towards the right. The occurrence took place on 16.11.2002 and the claim case was filed on 21.01.2003 i.e. after around 2 months of the accident and the MRI was done on 27.11.2002. The report in the MRI reveals that there was left temporoparietal intracranial haemorrhage with minimal mass effect and midline shift of 3mm towards the right. The things remained that the impact of head injury always have a after impact and the documents so submitted by the claimant also reveals that the claimant continued treatment before the ENT Surgeon for audio metri and hearing aid test, which is reflected by Exts.-9 to 14. Though the said Doctor have not given any specific findings regarding extent of damage of hearing but it support the contention of the claimant in his evidence that he was suffering from hearing problem after the accident. However, there is no any such document regarding the eye-treatment. It is also pertinent to note that the Commissioner himself has recorded his remark while taking evidence that the claimant could not hear properly by his right ear. So the factum of lack of hearing has been firmly established. 16. Another aspect of the case is that the appellant in due course of hearing of the appeal before this Court, has urged for examination of the respondent claimant by a neuro-surgeon which was also carried out by the order of this Court but subsequently, the examination of those Doctors who issued the certificates, was dispensed with the observation that this appeal will be heard for the purpose of determination on the report given by the medical board which the workman/respondent has relied upon, requires to be superceded by the report of Workman's examination. The learned counsel for the respondent/claimant has also pointed out that the said report given by specialist doctor after 8 years of injuries sustained cannot be accepted. 17. Now, as has been discussed above, it is not the mandate of the Act itself that such claimant is to be examined by the specialist and a Board of Doctors had already issued a certificate, which cannot be superceded by the subsequent medical certificate. 17. Now, as has been discussed above, it is not the mandate of the Act itself that such claimant is to be examined by the specialist and a Board of Doctors had already issued a certificate, which cannot be superceded by the subsequent medical certificate. However, things remains that the Exhibit-4 do not reflect the fact as to whether the disability was permanent or of temporary nature, to determine the aspect as has been prescribed under Section 4(1)(c) of the Act which has rendered the whole findings of the Commissioner about 100% disability, without any legal basis. 18. As regard the authenticity of Ext.-4, which has been challenged by the appellant, it is to be noted that no specific suggestion was given to the claimant that he was not examined by the Board and has categorically asked a question that it was given to him by one person when he was sitting in the office. This aspect does not necessarily belie the examination of the claimant as the issuance of Ext.-4 has been duly proved by PW-2. 19. The challenge of the appellant that the claimant has not produced any document about his treatment carried on Civil Hospital Nagaon and Brahmaputra Hospital, Guwahati, is of no consequence in view of documentary evidence so produced vide Exts.-2 & 3; and other bunch of medical documents, prescriptions, etc., regarding such treatment. However, there is no medical certificate from the GMCH, Guwahati. From the documents so exhibited, it reflects that the claimant was first examined at P.P. Civil Hospital, Nagaon; got admitted on 16.11.2002 and was discharged on 18.11.2002, vide Ext.-2; with complain of head injury on fracture of conclane bone and since the behavior. He was referred to Neurosurgery GMCH, Guwahati. The claimant was again admitted in Brahmaputra Hospital on 21.11.2002 and was discharged on 30.11.2002, vide Ext.-3. 20. Further to appreciate the impact of injury sustained by the respondent/claimant, Ext. 7 can be the basis as it was made after the accident on 27.11.2002 and the accident took place on 02.11.2002. The Board examined the claimant on 06.01.2003 and issued the certificate accordingly on the basis of Ext. 7. Nothing appears to discard the case of the claimant/respondent. 21. 7 can be the basis as it was made after the accident on 27.11.2002 and the accident took place on 02.11.2002. The Board examined the claimant on 06.01.2003 and issued the certificate accordingly on the basis of Ext. 7. Nothing appears to discard the case of the claimant/respondent. 21. The claimant in his evidence has admitted that he could hear with his right ear but he could not hear properly with his left ear and there is no other medical evidence regarding loss of eyesight in view of which, it cannot be said that there was 100% total disablement of the claimant and the decision so arrived at by the said Commissioner is liable to be interfered with. In this context, the appellant's submission that the injuries sustained by the workman/claimant do not result in 100% permanent disablement, so as to award compensation, needs to be re-appreciated. In view of testimony of the claimant himself about loss of hearing one ear, permanent/partial disablement perhaps be taken as 50% to assess the compensation. 22. Obviously, in the instant case, the Medical Officer who issued the medical certificate (Ext.-4) has not assessed the loss of earning capacity of the injured workman in terms of the provision of this Act. In this context, the learned counsel for the appellant has relied upon the Case law reported in 2009(1) GLT 370, National Insurance Company v. Bimal Nath & Ors., wherein it has been held that before assessing loss of earning capacity on the basis of the injury suffered by the workman, the medical practitioner has to keep the percentage of loss of earning capacity as specified in the schedule-I to the Act. The assessment cannot be mechanical without being regard to the percentage of loss of earning capacity. Further, it has been held that the burden of disability and reduction of earning capacity is on the workman who claims the benefit of the Act. 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 the accident but has not been reduced his capacity in any 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. All the evidence on record do not suggest that the disability suffered by the workman has reduced the earning capacity in every employment. The workman concerned has not led any evidence to show that disablement suffered have reduced their earning capacity in every employment which he was capable of undertaking at the time of accident apart from their employment, as driver. Therefore, the workman has suffered temporary partial disablement within the meaning of Section 4(i)(d) of the Act. 23. In the given case, the learned Commissioner has not considered the above aspect and has arrived at a conclusion without giving due regard to the aforesaid aspects and as has been discussed in the above referred case. Moreover, as regard the income of the injured, the Commissioner has taken the monthly income as Rs. 3000/- per month excluding the other perks/daily allowances given by the employer which is admitted by the employer himself that he use to pay Rs. 3,800/- to the respondent-claimant. The provisions of Section 2(m) of the Workmen's Compensation Act provides 'wages' which includes any privileges and benefits which is capable of being estimated in money other than traveling allowance. Obviously, there is no reason to exclude the admitted salary of the respondent-claimant and the allowances can be included in the salary. 24. The another discrepancy appears in the award is that the appellant is made liable to pay interest on the very day of the award which is not maintainable in view of the provision in Section 4A(3)(a) of the Act. As per the said provision, if the employer does not pay the compensation within the prescribed period or as soon as it falls due, then in default of paying such compensation due within one month from the date it falls due, the Commissioner can direct to pay the simple interest at the rate of 12% per annum as per prevailing rate. So the order for giving interest is pre-mature and, hence, not maintainable. 25. In view of all above, the appeal is allowed and the impugned award dated 18.1.2006 passed in N.W.C. Case No. 12 of 2003 is hereby set aside with a direction to decide the matter afresh in the light of the observations made above. So the order for giving interest is pre-mature and, hence, not maintainable. 25. In view of all above, the appeal is allowed and the impugned award dated 18.1.2006 passed in N.W.C. Case No. 12 of 2003 is hereby set aside with a direction to decide the matter afresh in the light of the observations made above. As the matter is old one, so the Commissioner is directed to dispose of the matter as early as possible, preferably within a period of three months from the date of receipt of a copy of this order. However, we do not propose to interfere as regards the part payment paid to the respondent-claimant under the award and the said amount can be adjusted against the final award. Registry is directed to return the LCR forthwith.