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2016 DIGILAW 104 (GAU)

National Insurance Co. Ltd. v. Md. Manuar Ali

2016-02-16

SUMAN SHYAM

body2016
JUDGMENT : Heard Mr. S.S. Sharma, learned Sr. counsel appearing for the appellant. Also heard Ms. S.D. Saikia, learned counsel appearing for the respondent No. 1/ claimant. 2. This appeal is directed against the judgment and order dated 30-01-2008 passed by the learned Commissioner, Workmen’s Compensation, Guwahati in connection with W.C. Case No. 09/2006 whereby an amount of Rs. 1,12,309/- had been awarded in favour of the claimant as compensation on account of personal injury sustained by him in an motor accident arising in course of his employment under the respondent No. 2. 3. The brief facts of the case is that the claimant was employed as handyman under the respondent No. 2 (owner) in the bus bearing number AS-15/4089. On 08-05-2005 when the bus was proceeding from Guwahati to Barpeta, it had met with an accident at Satdala, Hajo, in the district of Kamrup, as a result of which the claimant had suffered grievous injuries in the form of injury on the left hip-joint, injury on the chest and other parts of his body. Immediately after the incident, the claimant had received treatment at the Barpeta Civil Hospital wherein he was examined by the doctors and an X-Ray was also carried out in respect of his aforesaid injury. An accident case was also registered at the Hajo Police Station vide GDE No. 219 dated 09-03-2005. It is the claim of the claimant that he was 30 years of age and was receiving salary of Rs. 3000/- per month when the accident took place. Due to the aforesaid accident, the claimant claims to have suffered injuries of permanent nature that had lead to reduction of his earning capacity. On such basis, claim for compensation has been lodged by the claimant which was allowed by the learned Commissioner, Workmen’s Compensation, Guwahati along with interest payable therein by the impugned judgment and order dated 30-01-2008. Being aggrieved by the aforesaid judgment, the insurance company has preferred this appeal since the liability for payment of the award is upon the insurance company. 4. Mr. Sharma, learned Sr. counsel appearing for the appellant submits that the evidence on record establishes that the G.D. Entry No. 219, dated 09-05-2005 did not include the name of the claimant Manuar Ali as one of the persons injured in the accident. 4. Mr. Sharma, learned Sr. counsel appearing for the appellant submits that the evidence on record establishes that the G.D. Entry No. 219, dated 09-05-2005 did not include the name of the claimant Manuar Ali as one of the persons injured in the accident. As a matter of fact only the names of Dhananjay Kalita (driver) and Babul Das (conductor) of the bus finds place in the list of injured persons as per the said G.D. Entry. However, ignoring the aforesaid fact, the learned Commissioner had awarded compensation to the respondent No. 1 (claimant) merely on the basis of a police report dated 11-05-2005 (Exhibit-8) issued by the Investigating Officer wherein the name of the claimant appears at Serial No. 2 in the list of persons injured in the accident. Mr. Sarma strenuously argues that the claimant was never involved in the accident nor was he injured as claimed in the claim petition. However, inclusion of the name of the claimant in the list of injured was a clear afterthought and was executed with the malafied intention of causing loss to the insurance company for undue benefit of the claimant. Mr. Sharma further submits that such incidence of fraud is coming to light every now and then whereby the names of unaffected persons are being added to the list of injured/ deceased in a motor accident subsequently with the help of the Investigating Officer, thereby resulting into heavy pecuniary loss to the insurance company. 5. Ms. S.D. Saikia, learned counsel for the respondent No. 1/ claimant on the other hand, submits that the claimant had led sufficient evidence by examining PW-2 i.e. Dr. S.C. Sarma, SDM & HO, Barpeta Civil Hospital as well as PW-3 Dr. Kumud Sarma, Sr. M & HO, Barpeta Civil Hospital besides producing cogent evidence in the form of medical documents and certificates in support of his claim of having suffered injury in the aforesaid incident leading to disablement to the extent of 35% resulting into loss of earning capacity @ 30%. Such medical evidence adduced by the claimant including the expert opinion of medical practitioners, who had treated him after the accident, have gone un-rebutted during the cross-examination. Such medical evidence adduced by the claimant including the expert opinion of medical practitioners, who had treated him after the accident, have gone un-rebutted during the cross-examination. She, further, submits that the mere absence of name of the claimant in the G.D. Entry cannot be a ground to deny him the benefit which he is entitle to under the provision of Workmen’s Act on account of the injuries actually suffered by him. Learned counsel for the respondent emphatically submits that the claim of the respondent/ claimant is a genuine one which has also been duly established before the learned Commissioner, Workmen’s Compensation based on evidence available on record. In such view of the matter, there is no illegality or infirmity in the judgment and order passed by the learned tribunal. 6. The instant appeal was admitted to be heard on the following substantial questions of law: (1) Whether the Commissioner W.C. was justified to ignore Ext-‘G’ and evidence of DW-5 whereby it was evident that the name of the claimant was subsequently inserted even though he was not involved in the accident? (2) Whether the claimant was at all involved in the accident? (3) Whether the insurer can be made liable to pay interest from the date of filing case? (4) Whether the assessment of loss of earning capacity was proper and backed by evidence on record? 7. Although as many as four substantial questions of law had been framed by this Court while admitting the appeal, Mr. Sharma, learned Sr. counsel for the appellant has confined his arguments to only substantial question of law No. 2 noted above which, as a matter of fact, raises a question of fact. Therefore, this Court need not go into the other substantial questions of law and the same would stand resolved in favour of the claimant. From the tenor of the submissions made by the learned counsel for the appellant, it is thus apparent that the only ground on which the amount awarded is being questioned in this appeal is the lack of evidence to support the claim made by the claimant of his being involved in the incident. 8. I have considered the submission made by the learned counsel appearing for the parties and have also perused the record. 8. I have considered the submission made by the learned counsel appearing for the parties and have also perused the record. It is no doubt a fact that the name of the claimant does not find place in the G.D. Entry No. 219, dated 09-05-2005. However, Exhibit-8 i.e. the Accident Information Report submitted by the Investigating Officer categorically mentioned the fact that the claimant was involved in the accident and had suffered injury. The aforesaid entry made in the Accident Information Report also finds ample support from the evidence adduced by the claimant in support of the injuries suffered by him in the accident. It has been the categorical stand of the claimant that immediately after the accident he had run away from the spot and had taken shelter in another person’s house fearing public reprisal. Therefore, it is quite possible that the police not having found any trace of the claimant at the accident site, might have overlooked the claimant while making the G.D. Entry. However, subsequently having learnt about the complete facts, the correct report was furnished in the form of Accident Information Report dated 11-05-2005. It would be significant to mention herein that although in the G.D. Entry, the Conductor of the vehicle Babul Das was shown to be person injured in the accident, yet, subsequently his name was dropped from the Accident Information Report. Aforesaid exercise is a pointer towards the fact that on receiving proper and complete information about the accident, the police had rectified the entries made in the G.D. by making the correct reflection in the Accident Information Report. If the submission made by Mr. Sharma that the name of the claimant was subsequently included only to enlarge the list of claimants, then the name of Babul Das would not have been dropped from the final Accident Information Report. It is not in dispute that despite the entry of the name of Babul Das in the G.D. Entry amongst the list of injured persons, no claim has been made on behalf of the Babul Das pertaining to the aforesaid accident. 9. As has been mentioned hereinbefore the claimant appears to have led sufficient evidence to establish his case of having suffered injury in the aforesaid accident that took place on 08-05-2005 leading to loss of his earning capacity to the extent of 30% thereby prima-facie establishing his claim. 9. As has been mentioned hereinbefore the claimant appears to have led sufficient evidence to establish his case of having suffered injury in the aforesaid accident that took place on 08-05-2005 leading to loss of his earning capacity to the extent of 30% thereby prima-facie establishing his claim. It was, therefore, the duty of the insurance company to lead evidence to disprove the case of the claimant and establish their plea that the claimant was never involved in the accident at all. However, scrutiny of the record goes to show that evidence adduced by the insurance company did not disprove the case of the claimant nor could they establish their plea that the claimant was not involved in the accident. 10. In view of the what has been discussed above, I am unable to agree with the submission of the learned Sr. counsel appearing for the insurance company that the claimant has failed to establish his involvement in the accident. As such, the substantial question of law No. 2 stands answered in favour of the claimant and against the insurance company. Since the appellant does not press any other substantial question of law nor challenges the impugned judgment on any other ground, therefore, there is no occasion for this Court to examine the said judgment on any other count. In view of the above, I do not find any merit in this appeal and the same stands dismissed. Send back the LCR. No order as to cost.