Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 632 (GAU)

Oriental Insurance Co. Ltd. v. Md. Rafiqul Islam

2015-05-26

N.CHAUDHURY

body2015
JUDGMENT This is an appeal under Section 30 of the Workmen’s Compensation Act, 1923 (Now renamed as ‘Employee’s Compensation Act, 1923’ and herein after referred to as ‘the Act’), challenging the judgment and award dated 11.09.2007 passed by the learned Workmen’s Compensation Commissioner (for short, ‘W.C. Commissioner’), Nagaon in N.W.C. Case No. 113 of 2001. By that judgment and award the learned Tribunal directed the Insurance Company to make payment of Rs.73,386/- to the workman along with interest @ 12% per annum. [2] I have heard Mr. A. Ahmed, learned counsel for the appellant. None appears for the respondents although names have been shown in the cause-list. [3] One Rafiqul Islam lodged a claim with the learned W.C. Commissioner at Nagaon stating that he was engaged as driver by opposite party No.1 Sukur Mamud in vehicle No. AS02/A-4072. The vehicle was covered by insurance of opposite party No.3 Oriental Insurance Company Limited vide Policy No.3/71533. He stated that on 10.02.2001 while he was driving the vehicle from Tinsukia to Jorhat the same met with an accident at about 12 P.M. on Naional High Way near Arligaon due to mechanical defect and consequently, he sustained grievous injuries on many parts of his body. He was shifted to Sivasagar Civil Hospital and he remained there for two days. Then he received treatment at G.D. Nursing Home, Nagaon. G.D. Entry No.199 dated 10.02.2001 was registered by Gaurisagar P.S in respect to the accident. He claimed that he was receiving Rs.3,000/- per month as salary and he was 32 years of age. He claimed that he be paid compensation of Rs.3,00,000/- for the permanent partial disablement suffered by him. The opposite party appeared and submitted written statement. While the opposite party No.1 admitted employment of the claimant, it was stated that he was given salary of Rs.2,000/- only and a daily allowance of Rs.40/-. The insurance Company by submitting written statement denied its liability on various grounds. After the parties were left to prove their respective cases, the claimant examined 2 witnesses including himself. Dr. D. Das was examined as P.W.2 and he deposed that the workman suffered multiple joint pain with gross deformity and because of this he has lost earning capacity to the tune of 20%. Both the witnesses were duly cross-examined by the Insurance Company. Dr. D. Das was examined as P.W.2 and he deposed that the workman suffered multiple joint pain with gross deformity and because of this he has lost earning capacity to the tune of 20%. Both the witnesses were duly cross-examined by the Insurance Company. Upon considering all the materials available on record, the learned W.C. Commissioner passed the impugned judgment and award presuming that the workman was entitled to get salary of Rs.3,000/- per month and that he had lost earning capacity to the tune of 20%. Thereupon, the calculation of compensation was made as follows: 60% of Rs.3000/- X 203.85 X 20%=Rs.73,386/- The learned W.C. Commissioner directed the Insurance Company to make payment of this amount with interest @ 12% within 1 month. This award is called in question in the present appeal. While admitting the appeal under Section 30 of the Act, this Court framed as many as 2 substantial questions of law which are as follows: “1) Whether daily allowance paid to the workman can be included in monthly wages while determining compensation under the Workman’s Compensation Act? 2) Whether assessment of compensation under Section 4(1)(c)(ii) of the Act considering the nature of disability sustained by the claimant is justified?” [4] The first substantial question of law does not require any consideration because the point as to whether daily wage should be considered as part of salary has already been set at rest by the Hon’ble Supreme Court in the case of Mohd. Ameeruddin Vs. United India Insurance Co. Ltd reported in (2011) 1 SCC 304 . This Court, therefore, is to confine consideration for deciding the substantial question No.2 alone. [5] Mr. A. Ahmed, learned counsel for the appellant submits that on the basis of the materials available on record particularly the deposition of P.W.2 Dr. Dipesh Das, the learned W.C. Commissioner committed error in holding that the workman lost earning capacity to the tune of 20% and so the whole assessment of compensation has become vitiated. To appreciate this argument I have considered the evidence of P.W.2 Dr. D. Das. He stated that the victim was brought to him on 03.07.2001 for the first time. He examined him on 26.01.2006. At that time the patient was having pain in Maxillary region and there was swelling alongside right mandibular region and parietal region. X-ray report shows that there was fracture on 5th meta-tarsal bone. D. Das. He stated that the victim was brought to him on 03.07.2001 for the first time. He examined him on 26.01.2006. At that time the patient was having pain in Maxillary region and there was swelling alongside right mandibular region and parietal region. X-ray report shows that there was fracture on 5th meta-tarsal bone. He issued injury report of the victim and as per the report the victim sustained two grievous injuries and one simple injury. For other injuries the victim developed multiple joint pain with gross deformity. He had swelling with peripheral neuropathy which made him physically disabled to the extent of 15%. He stated that in course of the injuries the victim lost earning capacity to the extent of 20%. This witness was cross-examined by the opposite party No.2 Insurance Company. P.W.2 admitted in the course of cross-examination that he does not have specialisation in orthopedic. As per records, the victim was hospitalised in G.D. Nursing Home for 9 /10 days. He was admitted to G.D. Nursing Home on 10.02.2001 and was discharged on 19.02.2001. Exhibits-2, 3, 4, 5, 6, 7 & 8 are the prescriptions given b Dr. K.N. Goswami. He claimed to have prescribed antibiotic, analgesic and anti inflammatory medicine to the victim and there was no necessity of surgical intervention. According to him, under normal circumstances fractures get healed within 3 months. He claimed to have recommended for further treatment of the victim but did not advise him to go to any orthopedic surgeon or plastic surgeon. In course of subsequent checkup improvement was noticed and there was scope for further improvement. He said that he gave injury certificate and certificate of loss of earning income on the basis of his personal assessment. On specific cross-examination, he replied that the victim would be able to do any other work other than the work he used to perform earlier. According to him giddiness complained of by the patient after 35 to 45 days of the accident could be because of any other for reason. He denied the suggestion that the certificate given by him was not based on scientific basis but was out of sympathy. [6] From the aforesaid evidence led by the P.W.2 it appears that the claimant examined qualified medical practitioner and thereupon, the loss of earning capacity was assessed by doctor. He denied the suggestion that the certificate given by him was not based on scientific basis but was out of sympathy. [6] From the aforesaid evidence led by the P.W.2 it appears that the claimant examined qualified medical practitioner and thereupon, the loss of earning capacity was assessed by doctor. In so doing, the P.W.2 has considered not only x-ray report and other medical records but also himself cross-examined the victim clinically. He specifically replied in course of cross-examination that the victim would be able to do other works than the one perused by him prior to the accident. The victim was specialized in motor driving and he was driving the vehicle at the time of accident. So when the doctor said that he would be able to do any other job other than driving, it is to be accepted at the face value that the patient suffered fracture on his metatarsal bone for which he was not fit for driving. No serious materials could be elicited from him by way of cross-examination to show that the certificate given by the doctor was vitiated by gueswork or by non application of mind. Under Section 11 of the Act the appellant could have opted for getting the workman examined by a different authority as per its own choice if the appellant was of the view that P.W.2 was not competent or impartial. The appellant Insurance Company not having taken recourse to provision of Section 11 for the purpose of medical examination of the workman, the finding of fact arrived at by the learned W.C. Commissioner cannot be interfered with. The learned W.C. Commissioner arrived at the finding that the P.W.1/ claimant lost earning capacity to the extent of 20% and this view was taken on the basis of deposition of P.W.2, who is a qualified medical practitioner. The opinion of P.W.2 being based on medical records and he having considered the attending facts and circumstances like his occupation and nature of injury, such a finding of the learned W.C. Commissioner cannot be said to be perverse and so the second substantial question of law is decided in affirmative and in favour of the appellant. The Appeal stands dismissed. [7] No order as to costs.