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2016 DIGILAW 1045 (GAU)

Oriental Insurance Co. Ltd. v. Munna Rai

2016-11-24

PRASANTA KUMAR DEKA

body2016
JUDGMENT AND ORDER (ORAL) Heard Mr. S Dutta, learned counsel appearing on behalf of the appellant/insurance company and Mr. IA Talukdar, learned counsel for the respondents. 2. By this appeal, the appellant / insurance company has challenged the validity of the findings on the basis of which the award was given in NWC Case No. 128/2001 passed by the learned Commissioner, Workmen’s Compensation, Nagaon. 3. The claimant case in brief is that he was employed as a labourer in the vehicle bearing registration No. MN/03-0833, a truck owned by M/s Iboyaima Gas Agency of Imphal, Manipur. On 20.04.2001, the said vehicle was proceeding from Guwahati to Manipur loaded with Gas cylinders and on the way at Babejia near Babejia Charliali it met with an accident at about 5 A.M. when the left side front tyre of the vehicle burst and the vehicle turned turtle on the left side of the road. As a result, the claimant/respondent No. 1 and another labourer of the said vehicle sustained grievous injuries on their persons. The claimant/respondent No. 1 was taken for treatment to Dr. Durgeswar Bora (PW 2), a Senior Medical and Health Officer of B.P. Civil Hospital at Nagaon. A police case was registered at Traffic Branch of Nagaon Police Station under G.D. Entry No. 244 dated 20.04.2001 and as such the claimant/ respondent No. 1 has 4. On receipt of notice, the parties entered appearance and the opposite party No. 1/owner of the vehicle filed his written statement and admitted the contention of the claimant with regard to the accident, injuries, employment and also wages of the claimant. It is pertinent to mention here that the wage of the claimant was Rs. 3,000/- per month. The owner also admitted that the vehicle was insured with the present appellant at the relevant period. The present appellant / opposite party No. 2 by filing written statement refuted the contentions of the claimant in all respect and denied liability for payment of compensation. The learned Court below without framing any issues held that the claimant was entitled to Rs. 1,96,625/-. However, as the claimant respondent No. 1 claimed compensation to the tune of Rs. 1,50,000/- in his claim petition, therefore, he was awarded compensation of Rs. 1,50,000/- only. 5. The learned Court below without framing any issues held that the claimant was entitled to Rs. 1,96,625/-. However, as the claimant respondent No. 1 claimed compensation to the tune of Rs. 1,50,000/- in his claim petition, therefore, he was awarded compensation of Rs. 1,50,000/- only. 5. While discussing the amount of compensation, the learned Court below took the loss of earning capacity of the claimant respondent No. 1 to the extent of 50% on the basis of 20% physical permanent disability. Such disability and loss of earning capacity was on the basis of the medical certificate Exhibit 5 issued by the PW 2, Dr. Durgeswar Bora. Further, while taking the disability to the extent of 20% and the loss of earning capacity of the claimant respondent No. 1 as 50%, the learned Court below also came to the finding that on cross examination of PW 2, he deposed that at least 6 (six) months time would be required for complete recovery of the type of injury the claimant respondent No. 1 suffered from. Further, the learned Court below directed the present appellant to deposit the amount of compensation of Rs. 1,50,000/- together with simple interest at the rate of 12% per annum thereon to be calculated w.e.f. 20.04.2001 till deposit with the undersigned within 30 days of the issuance of the order. 6. Being aggrieved, the opposite party No. 2/ appellant preferred the present appeal thereby challenging the findings of the learned Commissioner, NWC, Nagaon. This appeal was admitted on the following substantial questions of law:- (1) Whether the learned Commissioner, Workmen’s Compensation is right in awarding the compensation under Section 4(1)(c)(ii) instead of 4(1)(d), on the face of the evidence of the doctor that the workman concerned was recovered from his disablement completely within a period of six months? (2) Whether the learned Commissioner, Workmen’s Compensation can accept the assessment of the loss of earning capacity by a medical practitioner without their being any proof that while making such assessment the doctor had due regard to the percentage of loss of earning capacity relating to the different injuries in Schedule 1 even if the compensation is awardable under Section 4(1)(c)(ii)? (3) Whether the daily allowances is part of the wages as defined under Section 2(n) of the Workmen’s Compensation Act, 1923? (3) Whether the daily allowances is part of the wages as defined under Section 2(n) of the Workmen’s Compensation Act, 1923? (4) Whether the interest payable under Section 4(A)(3)(a) of the Workmen’s Compensation Act, 1923 is payable from the date of order or from the date of accident or from the date of filing of the claim application? 7. Mr. S Dutta submits that the finding of the learned Commissioner and accepting the percentage of disability and the loss of earning capacity to the extent of 50% has no basis, inasmuch as, the disability was temporarily in nature and not a permanent one and the assessment of award ought to have been done as per Section 4(1)(d) of the Workmen’s Compensation Act, 1923 (hereinafter referred to as ‘the Act’). Mr. Dutta based his argument on the finding of the learned Commissioner that the PW 2, Dr. D Bora in his cross examination has deposed that the nature of injury suffered by the claimant respondent No. 1 would take another 6 (six) months for complete healing. Mr. Dutta on the basis of Section 4(1)(d) when disputing the monthly wage or monthly salary submits that the claimant respondent No. 1 is entitled to Rs. 90,000/- and interest for two months w.e.f. 10.03.2003 to 20.05.2003 which amounts to Rs. 1800/-. Further, Mr. Dutta submits that from the cross examination of PW 2 doctor, it is apparent that the concerned doctor was not a specialist in the Orthopaedic nor was he a Radiologist. So, the learned Commissioner cannot consider the disability and the loss of earning capacity assessed by him. Mr. Dutta submits that the substantial question of law No. 3 has become redundant in view of the decision in Md. Ameeruddin and another v. United India Insurance Co. Ltd. reported in (2011) 1 SCC 304 . Thus, Mr. Dutta submits that the impugned award is liable to be set aside and modified. 8. Mr. IA Talukdar, learned counsel for the respondent No. 1, disputes the submission made by Mr. Dutta on the ground that the medical certificate issued by the PW 2 was just and proper. Further, Mr. Talukdar submits that the assessment made by the PW 2 doctor, both with respect to the degree of disability and the loss of earning capacity is correct as held by the learned Commissioner. However, Mr. Dutta on the ground that the medical certificate issued by the PW 2 was just and proper. Further, Mr. Talukdar submits that the assessment made by the PW 2 doctor, both with respect to the degree of disability and the loss of earning capacity is correct as held by the learned Commissioner. However, Mr. Talukdar on being enquired by the Court with regard to the healing period recorded by the learned Commissioner agreed that the injury/disablement suffered by the respondent No. 1 was temporary. Mr. Talukdar fairly submits that as the nature of disablement was temporary, under such circumstances the award may be modified to the extent which is just and proper. 9. I have gone through the record and perused the cross examination of PW 2 doctor wherein he had deposed in clear terms that the disablement/ injury suffered by the claimant respondent No. 1 would take another 6 (six) months for total healing. If that is so, then the nature of the disablement can very well be inferred to the temporary disablement. If the injury / disablement is temporary in nature then the award / compensation ought to have been calculated as per Section 4(1)(d) of the Act. Going to the interest part from the operative portion of the impugned judgment and award, it is apparent that the simple interest at the rate of 12% per annum has been directed to be calculated w.e.f. 20.04.2001 till deposit with the undersigned within 30 days. This finding is wrong on the part of the learned Commissioner. In Oriental Insurance Company Limited v. Paren Narzary and another reported in 2012 (4) GLT 718, this Court held that compensation and awarding of interest can be granted only upon default committed in payment of the compensation within 30 days from the date on which payment becomes due. But palpably in the present case in hand, the learned Commissioner had calculated the interest w.e.f. 20.04.2001 i.e the date of occurrence which is wrong in view of the law holding the field. 10. Accordingly, the substantial question of law No. 1 is decided in favour of the appellant. With regard to the substantial question of law No. 2 from the record it is very much apparent that the learned Commissioner took the percentage of disability and the loss of earning capacity as per the certificate issued by the PW 2 doctor. 10. Accordingly, the substantial question of law No. 1 is decided in favour of the appellant. With regard to the substantial question of law No. 2 from the record it is very much apparent that the learned Commissioner took the percentage of disability and the loss of earning capacity as per the certificate issued by the PW 2 doctor. The learned Commissioner ought to have considered Schedule I though the compensation could have been awarded under section 4(1)(c)(ii). Having not done so, the learned Commissioner has acted wrongly and as such, the substantial question of law No. 2 is decided in favour of the appellant. The substantial question of law No. 4 is also decided in favour of the appellant. 11. From the discussion hereinabove made, the impugned award is hereby set aside and the appeal stands allowed. Mr. Dutta submits that already the appellant had deposited the awarded amount of Rs. 1,50,000/- with the Registry of this Court out of which the respondent No. 1 had already withdrawn an amount of Rs. 50,000/-. From the balance amount of Rs. 1,00,000/-, the respondent No. 1 is entitled to get Rs. 41,800/- and the rest amount of Rs. 58,200/- is entitled to be refunded to the appellant. The respondent No. 1 is at liberty to collect the entitled amount of Rs. 41,800/- from the Registry of this Court on proper identification by the learned counsel on his behalf to the satisfaction of the Registry of this Court. 12. Send down the records. No costs.