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Gauhati High Court · body

2016 DIGILAW 84 (GAU)

Oriental Insurance Co. Ltd. v. Rafiqul Islam

2016-02-05

SUMAN SHYAM

body2016
JUDGMENT : This appeal is directed against the judgment and award dated 25-03-2001 passed by the learned Commissioner, Workmen’s Compensation, Nagaon, Assam in NWC No.257/2001 awarding an amount of Rs. 1,59,386/- together with simple interest calculating @ 12% per annum w.e.f. 19-03-2001 i.e. with effect from the expiry of one month from the date of accident. The appeal was admitted by this Court by framing the following two substantial questions of law: (1) Whether daily allowance paid to the workmen would form part of the wages as defined under Workmen’s Compensation Act, 1923? (2) Whether doctor can assess earning loss on the basis of guess work? 2. The brief fact of the case is that the respondent/ claimant had sustained injuries on 18-02-2001 at Arjuntal under Nagaon Police Station while he was employed as labourer in a truck bearing number MNP/2798 which had met with an accident due to mechanical failure. The claim of the claimant/ respondent is that in the said incident he had suffered grievous injuries in the form of fracture in the left cuboid bone, besides suffering other injuries in the chest, which had resulted into permanent disablement and loss of earning to the extent of 40%. It was the claim of the claimant/ respondent that he was earning a salary of Rs. 2000/- per month in addition to Rs. 50/- as daily allowance on the date on which the accident took place and that his age was 22 years on the date of accident. 3. During the course of trial the claimant side had produced Exhibit-4 as certificate issued by the owner showing the salary paid by the owner of the vehicle to the claimant which tallied with the claim made in the claim petition. That apart, claimant side had also produced the doctor, who had treated him, as a witness who was testified to the effect that the claimant had suffered physically disablement of permanent nature which had reduced his earning capacity to the extent of 40%. Taking note of such evidence available on record the learned Commissioner had awarded a compensation amount of Rs. 1,59,386/- together with interest as indicated hereinbefore. 4. Being aggrieved by the judgment and award passed by the learned Commissioner for Workmen’s Compensation, Nagaon, Assam the insurance company is before this Court by filing the instant appeal. 5. Heard Mr. S. Dutta, learned counsel appearing for the appellant. 1,59,386/- together with interest as indicated hereinbefore. 4. Being aggrieved by the judgment and award passed by the learned Commissioner for Workmen’s Compensation, Nagaon, Assam the insurance company is before this Court by filing the instant appeal. 5. Heard Mr. S. Dutta, learned counsel appearing for the appellant. None appears for the claimant/ respondent. 6. While referring to the first substantial question of law framed by this Court Mr. Dutta fairly submits that law is settled by now that the daily allowance paid to the workman would form part of the wages as defined in Workmen’s Compensation Act, 1923. As such, submits Mr. Dutta, the first substantial question of law may not arise for consideration by this Court in the facts and circumstances of the present case. However, referring to the second substantial question of law, Mr. Dutta strenuously argued that there was no material basis for the learned Commissioner to conclude that the claimant had suffered 40% loss of income inasmuch as the injury suffered by the claimant itself was a minor injury which did not have the potential of incurring a permanent disability. Mr. Dutta submits that the assessment of permanent disability lead to loss of earning capacity to the extent of 40% was made by the learned Commissioner in a most mechanical manner and dehors any reference to the Schedule-1 of injuries as included in the Workmen’s Compensation Act, 1923. 7. By referring to a decision of this Court rendered in the case of National Insurance Company Ltd. Vs. Bimal Nath & Ors. reported in 2009 (1) GLT 370 Mr. Dutta submits that while making assessment of permanent disability and/ or loss of earning capacity the learned Commissioner ought to have made an assessment as to whether the disablement of workman is of a permanent nature and as to whether the same has reduced his earning capacity in every employment which he was capable of undertaking and not merely the particular employment in which he was engaged at the time of the accident. In such view of the matter, submits Mr. Dutta, the impugned judgment and award is vitiated on such count alone. 8. By referring to another decision of this Court rendered in the case of Oriental Insurance Company Ltd. Vs. Paren Narzary & Anr. reported in 2012 (4) GLT 718 Mr. In such view of the matter, submits Mr. Dutta, the impugned judgment and award is vitiated on such count alone. 8. By referring to another decision of this Court rendered in the case of Oriental Insurance Company Ltd. Vs. Paren Narzary & Anr. reported in 2012 (4) GLT 718 Mr. Dutta submits that it has been held by this Court in the aforesaid decision that interest would not be payable with reference to the date of the accident but, if at all, with reference from the time fixed in the award made by the learned Commissioner for making payment of compensation so payable. In such view of the matter as well, submit the learned counsel, the impugned award is unsustainable in law. 9. I have considered the submission made by the learned counsel. In view of the submission made by the learned counsel for the appellant the first substantial question of law stands answered in favour of the claimant/ respondent. 10. Coming to the second substantial question of law, a perusal of the decision rendered by this Court in the case of National Insurance Company Ltd. (Supra) goes to show that the compensation in case of injury has to be assessed in accordance with the provision of Section 4(1)(c)(ii) of the Act. In the aforesaid judgment this Court as observed as follows: (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. 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 has to be assessed u/s 4(1)(c)(ii) of the Act. In that event, the compensation has to be assessed u/s 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. 11. Having regard to the law declared by this Court in the aforesaid judgment it is apparent that the conclusion recorded by the learned Commissioner to the effect that the claimant had suffered loss of earning capacity to the extent of 40% was not based on a proper assessment of the materials available on record inasmuch as the learned tribunal has merely based his conclusion on the basis of an opinion given by the doctor without making any independent assessment as to the loss of earning capacity of the claimant to undertake every employment which he was capable of undertaking. Further the injury certificate produced by the claimant did not also indicate any permanent injury to have been suffered by the claimant. Be that as it may. The learned counsel for the appellant submits that the principle amount of Rs. 1,59,386/- has already been deposited by the insurance company and the same has also been withdrawn by the claimant. The learned counsel for the appellant further submits that there is no possibility of recovery of the said amount by the insurance company, even if the award was reversed by this Court. 1,59,386/- has already been deposited by the insurance company and the same has also been withdrawn by the claimant. The learned counsel for the appellant further submits that there is no possibility of recovery of the said amount by the insurance company, even if the award was reversed by this Court. In such view of the matter, this Court need not be detained with the question of validity and legality of the award made by the Commissioner insofar as the compensation amount is concerned. 12. Although no substantial question of law had been framed by this Court pertaining to the jurisdiction of the Commissioner to award compensation prior to the date of award yet, this Court had granted liberty to the appellant company to agitate the said point. To buttress his argument that the learned Commissioner did not have the jurisdiction to award interest with effect from the date of accident, Mr. Dutta has placed reliance on a decision of the Hon’ble Apex Court rendered in the case of Palraj Vs. Divisional Controller, North East Karnataka Road Transport Corporation, reported in (2010) 10 SCC 347 wherein, the Hon’ble Apex Court in paragraph 19 had made the following observation: “19. It will be evident that compensation assessed under Section 4 is to be paid as soon as it falls due and in case of default in payment of the compensation due under the Act within one month from the date when it falls due, Commissioner would be entitled to direct payment of simple interest on the amount of the arrears @ 12% per annum or at such higher rates which do not exceed the maximum lending rates of any scheduled bank as may be specified by the Central Government. Both the Commissioner, Workmen’s Compensation, as also the High Court, therefore, rightly held that interest under the 1923 Act cannot be claimed from the date of the filing of the application, but only after a default is committed in respect of the payment of compensation within 30 days from the date on which the payment becomes due.” 13. In the case of New India Insurance Company Ltd. Vs. Abdul Kalam, reported in 2009 (1) GLT 138 it was held that the starting point of interest is on completion of 30 days from the date on which the payment of compensation falls due and it cannot be the date of accident. 14. In the case of New India Insurance Company Ltd. Vs. Abdul Kalam, reported in 2009 (1) GLT 138 it was held that the starting point of interest is on completion of 30 days from the date on which the payment of compensation falls due and it cannot be the date of accident. 14. Record reveals that in the instant case the award was made on 25-03-2004 and payment was deposited by the insurance company on 31-03-2006. As such, interest, if at all payable would only be for the period w.e.f. 26-04-2004 to 31-03-2006. However, as has been observed hereinbefore in the present case there was no material on record for the learned Commissioner to arrive at a conclusion that the claimant had suffered permanent disability leading to loss of income to the extent of 40%. Such being the position, in the opinion of this Court, the learned Commissioner was not justified in the eye of law to award compensation to the claimant taking loss of earning capacity to be 40%. Such being the case, the question of granting any interest on the aforesaid amount also cannot arise in the eye of law. Consequently, the judgment and award passed by the learned Commissioner to the extent the same awards interest @ 12% per annum w.e.f. 19-03-2001 till realization stands interfered with. It is, however, made clear that the determination made above shall not entitle the insurance company to make recovery of the amount already paid to the claimant under the impugned award. With the above observation this appeal stands disposed of.