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Gauhati High Court · body

2017 DIGILAW 110 (GAU)

National Insurance Co. Ltd. v. Pranab Ch. Roy

2017-01-24

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : Heard Mr. R. Goswami, learned counsel for the appellant. Also heard Mr. S. Hoque, learned counsel for the respondent/claimant No. 1. None appears for the respondent No. 2 on call. 2. By filing this appeal under Section 30 of the Workmen’s Compensation Act, 1923 (now renamed as the Employees’ Compensation Act, 1923), hereinafter referred to as the said Act, the appellant has challenged the judgment and order 02.07.2007 passed by the learned Commissioner, Workmen’s Compensation, Dhubri in W.C. Case No. 25/2005. 3. The case projected by the respondent No. 1 in the claim petition before the Commissioner, Workmen’s Compensation was that he was employed by the respondent No. 2 herein as a driver for his vehicle No. AS-15/8893 and while the said vehicle was on the way from Guwahati to Pathshala on 03.06.2005, the car met with the accident near Changsari, under Kamlapur P.S. As a result of the said accident, the respondent No. 1 had sustained head injury, facial injury, chest injury and eye injury. He was given primary treatment in Rangia and then he came to Pathshala for treatment and later on he was shifted to Guwahati Medical College and Hospital for treatment. He stated that he had lost total eye sight in the right eye, which affected his eye sight in the left eye. He suffered fracture injury in the chest in respect of 4, 5 and 6 rib of the chest, he lost one tooth and his forehead bone was also cracked, affecting his whole eye sight. He had stated that his vehicle was insured by the appellant herein by policy which was valid on the date of the accident and he claimed that his employed not give any ex-gratia for compensation. The respondent No. 2 appeared before the Commissioner for Workmen’s Compensation and accepted the occurrence of the accident and disclosed that as a driver the respondent No. 1 was received salary of Rs. 4,200/- and daily food allowance of Rs. 70/- .The appellant also contested the case by filing their written statement, denying that the respondent No. 1 was engaged as a driver on the date of accident and that the injury under the plea of injury as a driver was not sustainable, injury being not grievous and permanent in nature. The appellant disputed the income of the respondent No. 1. 4. The appellant disputed the income of the respondent No. 1. 4. The Respondent No. 1 has claimant as examined two witnesses including himself and the Doctor. The Doctor was examined as P.W. 2 he was at the relevant time engaged as a Senior Medical and Health Officer, Manikpur in the district of Bongaigaon. He had stated in his evidence that he had examined the respondent no. 1 on 30.12.2005 in his clinic and he found that following injury suffered by the respondent No. 1 in the accident which occurred on 03.06.2005: i. Cut injury over both eye brows. ii. Prontial area of head. iii. Multiple leserated injury in the both hands. 5. His statement in his evidence as regards his medical opinion on the visual impairment by the right eye of the respondent No. 1 is as follows:- “On 15.07.2005 during eye examination of Regional Institute of Ophthalmology G.M.C. Hospital the visual acuity of the patient in the right eye was finger comting at 1” feet distance and treatment give. On 19.08.2005 he again visit the Regional R.I.O. G.M.C. Hospital for check-up. But no improvement in the vision of the right eye. When I examine on 15.09.2005, I have found the following findings in the right eye on excrrnal examination of right & left eye is normal, slit lamp on the bio microscopy both eye normal found scopy right eye shows scarring of foveal reason of macular left eye normal. Auto refractometry right eye no response left eye normal. Visual acuity examination right eye total absence of right, left eye N6 in my opinion the visual lost of right eye is due to scurring of fonial reason of the macula of retina due to the from to the right eye and frontal part of the skull the work disability of that person is about 40% due to loss of Binocular vision. Exbt. –(1) prescription and Exbt.- 1(1) my signature. Exbt.-(2) prescription. Exbt. 2(1) my signature. Exbt.- (3) medical certificate. Exbt. 3(1) my signature.” 6. The learned Commissioner, Workmen’s Compensation after evaluating the evidence on record had passed the judgment and award dated 02.07.2007. It is reflected in the said judgment that upon hearing learned counsels for the parties on perusal of the written argument from the Opp. Parties No. 2 and 3 therein, the following issues were framed:- i. Is there any cause of action for the claim petition? ii. It is reflected in the said judgment that upon hearing learned counsels for the parties on perusal of the written argument from the Opp. Parties No. 2 and 3 therein, the following issues were framed:- i. Is there any cause of action for the claim petition? ii. Whether the claim petition is maintainable in its present form? iii. Whether the Opp. Parties are liable to pay compensation as claimed by the claimant petitioner? iv. If yes, what relief is the claimant petitioner entitled to? 7. For the purpose of this appeal, the issues No. 3 and 4 are deemed to be relevant. It is seen that the learned Commissioner, Workmen’s Compensation has held in respect of issue No. 3 that the vehicle involved in the accident was duly insured by the appellant and that the respondent No. 1 herein was engaged as driver of the said vehicle, which met with the accident on 03.06.2005, in which the respondent No. 1 has sustained serious injury and it was held that the car was insured by the appellant cannot be denied. 8. In respect of the said fact, this Court finds that it has been duly established in the course of trial that the vehicle involved in the accident was duly insured by the appellant and, as such, the appellant is required to indemnify the injured in respect of injury sustained by the driver of the offending vehicle, which is duly covered by the scope and ambit of the Employees’ Compensation Act, 1923. 9. In respect of issue No. 4, the learned Commissioner, Workmen’s Compensation had relied on the Doctor’s certificate thereby assessing percentage of disability at 40% and loss of earning capacity was also assessed at 40% of the income of the respondent No. 1 and the said learned Commissioner by accepting the age of the respondent No. 1 as 28 years and the monthly salary of the respondent No. 1 was accepted to be Rs. 4000/- per month. 4000/- per month. As per Explanation II of Section 4(1)(c) of the said Act and in terms of Section 4 (1) (c) of the said Act, the learned Tribunal calculated the compensation at 40% x Rs.2400.00 x 211.79 = 2,03,318.00., this amount was directed to be awarded as compensation in favour of the respondent No. 1, directing the appellant to pay the same along with interest @ 9% per annum from the date of accident i.e. 03.05.2005, calculating the interest of Rs.38,122.00. The learned Commissioner, Workmen’s Compensation had directed the appellants to deposit the awarded amount including interest within 30 days from the date of the award, felling which it was directed that the amount would carry further interest @ 9% for delay in payment till the date of deposit. 10. Mr. Goswami has urged by referring to the entries made in serial No. 26 of Part II of Schedule I of the said Act, which reads as follows: Loss of vision of one eye, without complications or disfigurement of eye-ball, the other being normal Loss of- 11. Mr. Goswami further submits that present squarely falls within the meaning of other injuries as described in the Part II of Schedule I of the said Act and submits that the learned Commissioner had committed legality in assessing the compensation on the basis of disability at 40% and loss of earning capacity of 40%. He projects that in view of the provisions of Section 2(1) and 4 of the said Act, the learned Commissioner had no discretion to assess the loss of earning capacity, but he was bound by the entries made in the said Schedule and he was bound to accept the loss of earning capacity at 30% as prescribed therein. 12. Mr. S. Hoque, learned counsel for the respondent on the other hand submits that respondent No. 1 was a driver and therefore, the injury sustained in respect of his eye would in fact lead to total loss of his earning capacity and therefore, the learned Commissioner, Workmen’s Compensation had not committed any wrong in assessing loss of earning capacity as 40% as certified by qualified medical practitioner, which is in accordance with the provisions of the said Act. 13. This Court having considered the rival submissions made at the bar, it is inclined to accept the submissions made by the learned counsel for the appellant. 13. This Court having considered the rival submissions made at the bar, it is inclined to accept the submissions made by the learned counsel for the appellant. This Court is of the view that once the injury sustained by the workmen is capable of being categorized under any one of the various categories of injuries given in Schedule (I) appended to this said Act, the learned Commissioner would have no discretion to over look the percentage of loss of earning capacity as mentioned therein. In the present case in hand owing of the evidence tendered by the P.W. 2, the learned Doctor, they can’t be any two views that the injury sustained by the respondent No. 1 was injury lead to the visual of one eye, without complications or disfigurement of eye-ball. As per the evidence, the other eye was normal and, as such, in the opinion of this Court, the percentage of loss of earning capacity must be accepted as 30% in terms of serial No. 26 of Part II of Schedule I. 14. This Court by order dated 16.11.2007 had admitted the appeal on the following substantial question of law:- i. Whether the learned Commissioner, Workmen’s Compensation is right in assessing the loss of earning capacity of the workman at 40% on the basis of the certificate of the medical practitioner relating to the percentage of disability suffered by the workman, without their being any assessment of loss of earning capacity by the medical practitioner? 15. As stated earlier, the injury, which is sustained by the respondent No. 1 is normally covered by entry No. 26 Part II of Schedule I of the said Act and as such, the assessment of the loss of earning capacity of the workman at 40% is held to be not sustainable and therefore, substantial question of law is decided in the negative and against the respondent No. 1, by holding the loss of earning capacity could have been calculated only @ 30% as prescribed therein. 16. Consequently, the impugned judgment and award dated 02.07.2007 stands modified. The computation of award is now be made as follows:- 30% x 2400.00 x 211.74 = 1,52,488.80, rounded off to 1,52,489/-. 17. In terms of the order passed by the learned Commissioner, the said sum shall carry interest @ 9% per annum from the date of the accident. 18. Mr. Consequently, the impugned judgment and award dated 02.07.2007 stands modified. The computation of award is now be made as follows:- 30% x 2400.00 x 211.74 = 1,52,488.80, rounded off to 1,52,489/-. 17. In terms of the order passed by the learned Commissioner, the said sum shall carry interest @ 9% per annum from the date of the accident. 18. Mr. Goswami submits that the appellant has deposited a sum of Rs.2,41,440.00 before the learned Commissioner, Workmen’s Compensation, Dhubri. The appellant is permitted to withdraw the excess of such deposit over and above the awarded amount lying before the learned Commissioner, Workmen’s Compensation, Dhubri. 19. The appeal stands allowed to the extent of modification stated above with no order as to cost. Return back the LCR.