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2017 DIGILAW 1154 (GAU)

NEW INDIAN ASSURANCE CO. LTD. v. MD. ABDUL KASEM

2017-08-24

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : 1. Heard Mr. R.K. Bhatra, learned counsel for the appellant. None appears on call for the respondent. 2. This is an appeal under Section 30 of the Workmen’s Compensation Act, 1923 (now called as Employees’ Compensation Act, 1923 and hereinafter referred to as “the Act”). The appeal is directed against the judgment and award dated 17.08.2010 passed by the learned Commissioner, Workmen’s Compensation, Tezpur in W.C. Case No. 12/2010, whereby the compensation amounting to Rs.1,57,572/- as well as interest from the date of the accident @ 9% amounting to Rs. 1,20,542/- was allowed in favour of the respondent No. 1. 3. The present appeal was admitted by order dated 12.11.2010. However, the substantial question of law was not formulated while admitting the appeal. Accordingly, on the basis of the submissions made by the learned counsel for the appellant, this appeal is proposed to be heard on the following substantial question of law: (i) Whether the Workmen’s Compensation, Commissioner, Nagaon has the power under the law to transfer the case to Tezpur after 9 years of the filing the case, while the matter is within the jurisdiction of the Commissioner, Nagaon? (ii) Whether the Workmen’s Compensation, Commissioner, Tezpur can assume jurisdiction over the matter by virtue of unauthorized transfer of the case in which otherwise he has no jurisdiction? Nagaon? (iii) Whether the disability allegedly sustained by the claimant is permanent partial as defined under the Act? (iv) Whether the loss of earning capacity assessed by the doctor is in accordance with law? (v) Whether the determination of compensation under Section 4(1) (c) (ii) of the Act is justified considering the nature of disability allegedly sustained by the claimant? 4. The brief facts of the case is that the respondent No. 1/claimant was engaged as a driver of respondent No. 2 in respect of a Tata Sumo vehicle bearing registration No. AS-01L/0205. While the said vehicle was going from Guwahati to Nagaon on 06.10.2001, it met with an accident at Senchowa on NH-37. He received grievous injury on his person and was treated at a hospital. The Nagaon Police registered the accident case vide GDE No. 124/01 dated 06.10.2001. At the time of accident the vehicle was duly insured with the appellant having valid insurance policy covering the risk and liability of the driver. He received grievous injury on his person and was treated at a hospital. The Nagaon Police registered the accident case vide GDE No. 124/01 dated 06.10.2001. At the time of accident the vehicle was duly insured with the appellant having valid insurance policy covering the risk and liability of the driver. Both the respondents No. 1 and 2 intimated the appellant about the accident and as no compensation was paid to him, he has filed the claim application for compensation of Rs.2 Lakh. 5. The case was initially registered before the learned Court of Commissioner, Workmen’s Compensation, Nagaon where it was registered as N.W.C. Case No. 326/2001. The claim petition was filed on 08.11.2001. On 26.03.2010, the respondent No. 1, filed a petition before the learned Commissioner, Workmen’s Compensation, Nagaon informing the court that the respondent No. 1 had shifted his residence to Sonitpur and prayed for transfer of the proceeding from Nagaon to Sonitpur. The said prayer was allowed on the same day and the records transmitted from the learned Commissioner, Workmen’s Compensation, Nagaon to the learned Commissioner, Workmen’s Compensation, Tezpur for disposal. The records were received by the transferee court and by order dated 04.05.2010, the case was registered before the learned Commissioner, Workmen’s Compensation, Tezpur and notices were issued to the parties for appearance. Notices were also served under Section 21 (1) (b) to the learned Commissioner, Workmen’s Compensation, Nagaon and to the Government of Assam in the prescribed Form-A. 6. The respondent No. 1/claimant examined two witnesses including himself and Doctor and exhibited seven documents i.e. accident information report (Exbt.1), prescription (Exbt.2), injury report (Exbt.3 and 4), prescriptions (Exbt.5 and 6) and disablement certificate (Exbt.7). The appellant did not examine any witness. The learned Commissioner by appreciating the evidence on record and by relying on the evidence by the Doctor (PW.2) opined that the evidence of the claimant’s side both oral and documentary remain unrebutted and by accepting the disablement certificate (Exbt.7), arrived at a finding that the monthly salary of the respondent No. 1 be treated as Rs.3100/- after deducting the daily allowance of Rs.30/- per day i.e. Rs.900/- per month from his salary of Rs.4000/- per month. In absence of any evidence, the age of the respondent No. 1 was accepted as 28 years based from the medical documents and by accepting the physical disability of 20% and the loss of earning capacity at 40% as per the disablement certificate (Exbt.7), computed the compensation as 60% of Rs.3100 X 211.79 X 40% = Rs.1,57,572/-. The respondent No. 1 was held entitled to the said compensation with interest @ 9% from the date of the accident. The interest was quantified on the date of the award at Rs.1,20,542/-, directing the appellant herein to pay the aforesaid amount on behalf of the respondent No. 2 herein. 7. The learned counsel for the appellant submits that pursuant to the orders passed by this Court, 50% of the awarded amount of Rs.1,39,058/- was deposited before the Registry of this Court as reflected in the order dated 19.08.2011 passed by the learned Registrar General of this Court. As per the office note dated 29.09.2011, the aforesaid amount had been disbursed to the respondent No. 1. 8. The learned counsel for the appellant has relied on the provisions of Section 21 (1) of the Employees’ Compensation Act, 1923, to project that the respondent No. 1 would only have maintained the claim petition before the learned Commissioner, Workmen’s Compensation, Nagaon and therefore, the transfer of the proceedings to the Court of learned Commissioner, Workmen’s Compensation, Sonitpur at Tezpur was not in accordance with law and, as such, the entire present petition is liable to be set aside. 9. The learned counsel for the appellant further submits that the learned Commissioner had erred in law in accepting the disability certificate to quantified the physical disability at 20% and loss of earning capacity at 40% which was without any basis. It is submitted that the learned Commissioner ought to have considered that the loss of earning capacity must be assessed not only on the basis of the work which he was then doing, but respondent No. 1 was required to prove that the disability had incurred the loss of earning capacity in respect of all other employments which he was capable of performing. It is submitted in view of the lack of evidence in this regard, the learned Commissioner had wrongly accepted the disability certificate (Exbt.7) to quantify the loss of earning capacity at 20%. It is submitted in view of the lack of evidence in this regard, the learned Commissioner had wrongly accepted the disability certificate (Exbt.7) to quantify the loss of earning capacity at 20%. It is further submitted that the Doctor (P.W.2) had given his opinion merely on the basis of clinical finding without any current X-ray report or any other investigation to correctly assessed the status of disability. 10. By referring to the entries made in the disability certificate, the learned counsel for the appellant submits that as per the said certificate the only difficulty that the respondent No. 1 was suffering was a frozen shoulder. He has also referred to the cross-examination of the P.W.2 i.e. Doctor to show that as per his evidence, the P.W.2 has admitted that with treatment, frozen shoulder can go away. Therefore, as there was no investigation as to whether the fracture had healed or not, the assessment made by the Doctor (P.W. 2) was not admissible in the eyes of law. The learned counsel for the appellant further submits that although the P.W.2 i.e. Doctor had admitted that he had considered the Schedule appended to the Employees Compensation Act, 1923 while assessing the percentage of disability and the loss of earning capacity, but that the statement appeared was not believable. In this regard, the learned counsel for the appellant has referred to the list of various injuries covered in Part-II of Schedule-I appended to the Employees’ Compensation Act, 1923, to show that in cases of more injury like loss of two fingers of hand, loss of phalanx thumb, loss of all toes of both feet, etc., the loss of earning capacity was at 20% and therefore, for frozen shoulder, which is non-scheduled injury, the assessment of the physical disability at 20% and the loss of earning capacity at 40% was definitely on a higher side. It is also submitted that frozen shoulder was not the injury complaint of but the injury was of fracture of the (i) posterior dislocation of right shoulder joint, (ii) fracture was seen in the left 6th rib. Therefore, the complaint of fracture of frozen shoulder was a merely passing phase and would go away in a short time after the fracture had healed. Therefore, the complaint of fracture of frozen shoulder was a merely passing phase and would go away in a short time after the fracture had healed. It is also submitted that without any subsequent injury, the Doctor (P.W.2) could not have assessed the physical disability without noticing whether the fracture or dislocation of shoulder had totally healed or not. 11. Having considered the argument advanced by the learned counsel for the appellant, and on perusal of the materials available on record, this Court finds that the accident in question had occurred on 06.10.2001. As per the evidence on the next date, the X-ray was done. Therefore, the X-ray plate could only show the injuries as on 06.10.2001. It is worth noting that the respondent No. 1 did not prove the X-ray plate in respect of the injury. He has only exhibited the X-ray report at Exbt.3 and 4, which in the opinion of this Court it’s merely a record of reading of the X-ray plates and therefore, in the absence of the X-ray plates, the correctness of the report cannot be accepted as the correct reading of the X-ray plates. 12. The injury report which is marked as Exbt.3 and 4 is prepared on 09.12.2002. Therefore, the said report was prepared after the claim petition was filed on 08.11.2001. As per the trial court records, it is seen that there are no documents were enclosed to the claim petition and there is also no list of the documents which was filed when the claim petition was filed. The written statement was filed by the appellant on 04.02.2003 and there is no order by the learned Commissioner, Workmen’s Compensation from the date of registration of the case till 04.02.2003, indicating that the copy of the disability certificate (Exbt.7) was filed before the learned Commissioner. The requirement of Rule 21 of the Workmen’s Compensation Rules, 1924 require that if the relief is based upon a document, the document should be appended to the application, and at best at the time of first hearing under Rule 21(1) of the said 1924 Rules and if not done so, the document can only be admitted under Rule 21(3) with the sanction of the Commissioner. Thus, admission of disability certificate was in violation of Rule 21 of the said 1924 Rules. Thus, admission of disability certificate was in violation of Rule 21 of the said 1924 Rules. As per the copies of prescription which are marked as Exbt.2, 5 and 6, after the accident had occurred on 06.10.2001 and before filing of the claim petition, the second visit by the respondent No. 1 to the Doctor (P.W.2) was on 02.11.2001 and as per notice prepared on the page which is marked as Exbt. 5(1) there is no indication that the injuries which was suffered by the respondent No. 1 were permanent in nature. It is only on 09.12.2002 when the Doctor (P.W.2) issues his prescription i.e. on the date when the Exbt.7 was prepared the Doctor (P.W.2) has written in his prescription at a place marked as Exbt.6 (3) that the injured was having frozen shoulder and chest pain. Therefore, there is no material to show that on 08.11.2001 when the claim petition was filed, the respondent No. 1 was suffering from any disablement except for the mentioned that posterior dislocation of right shoulder joint and fracture was seen in the left 6th rib, relatable to the date of the accident. 13. It is further seen that while clinical examination in Exbt.7 , the P.W.2 i.e. the Doctor recorded swelling tenderness over the right shoulder joint and tenderness over the chest as on the date of the accident. He does not record the said finding as on 09.12.2002 as to what was found on clinical examination of respondent No. 1. He merely states that the percentage have been developing frozen shoulder and was having chronic chest pain, there is no finding that the frozen shoulder was because of the dislocation of the shoulder or not, chronic chest had nothing to do with the fracture injury suffered in the left 6th rib. 14. He merely states that the percentage have been developing frozen shoulder and was having chronic chest pain, there is no finding that the frozen shoulder was because of the dislocation of the shoulder or not, chronic chest had nothing to do with the fracture injury suffered in the left 6th rib. 14. Therefore, in view of the discussion above, this Court is of the unhesitant view because of four reasons, (i) no X-ray plates were exhibited and no subsequent X-ray was done to ascertain the status of injury on the date when the medical certificate (Exbt.7) was issued, (ii) in the absence of finding by the P.W.2 i.e. the Doctor that the frozen shoulder or chronic chest pain was on account of injury suffered at the accident, (iii) the absence of record of clinical finding in the medical certificate (Exbt.7), and (iv) admission of medical certificate in violation of Rule 21 of Workmen’s Compensation Rules, 1924, this Court is not inclined to accept the finding recorded by the learned Commissioner for the respondent No. 1 had suffered permanent disability without the definition of 4(1)(c)(iii). In fact there is no provision of 4(1)(c)(iii) in the Employees’ Compensation Act, 1923. However, in the absence of any cross-examination on the point by the appellant’s counsel, this Court is inclined to accept the injury to be one of temporary partial disablement within the meaning of Section 4(1)(d) of the Employees’ Compensation Act, 1923. As there is no cross-examination on the point of period of disability, the period of disability is accepted to be for the maximum prescribed period of five years under the provisions of Section 4(2)(ii) of the said 1923 Act. 15. For the purpose of answering the first substantial question of law on which the present appeal is being heard, this Court is inclined to rely on the case of Morgina Begum Vs. Managing Director Hanuman Plantation Ltd., 2007 11 SCC 616 as well as the case of Pathan Vali Khan Vs. G. Venkata Gandhi, 2013 5 ALT 442 : (2013) 6 ALD 522: (2013) 0 Supreme (AP) 597, wherein it has been held that Section 21(1)(b) empowers the learned Commissioner, Workmen’s Compensation where the matter was pending to transfer the proceeding to another Commissioner. G. Venkata Gandhi, 2013 5 ALT 442 : (2013) 6 ALD 522: (2013) 0 Supreme (AP) 597, wherein it has been held that Section 21(1)(b) empowers the learned Commissioner, Workmen’s Compensation where the matter was pending to transfer the proceeding to another Commissioner. Moreover, in the present case in hand, it is seen that after the case records were received on transfer, the learned Commissioner, Workmen’s Compensation, Sonitpur at Tezpur had duly issued notice to the jurisdictional Commissioner, Workmen’s Compensation, Nagaon as well as to the Government of Assam as per the prescribed Form-A and proceeded to hear the matter. Therefore, the objection as to the place of proceedings, questioned by the appellant is answered in the affirmative by holding that the learned Commissioner, Workmen’s Compensation, Nagaon did had the power to transfer the case for adjudication to the Commissioner, Workmen’s Compensation, Sonitpur at Tezpur. This answer is for substantial question of law No. 1. Consequently, the second substantial question of law is also answered in the affirmative by holding that the learned Commissioner, Workmen’s Compensation, Sonitpur at Tezpur had the jurisdiction over the matter and transfer the case to the said learned Commissioner was not unauthorized. 16. In respect of the substantial question of law No. 3, in view of the discussion above, this Court holds that the injury suffered by the respondent No. 1 in the accident on 06.10.2001 cannot be said to have an effect of permanent partial disablement within the meaning of Section 4(1)(c)(ii) and on the ground as already indicate above, this Court finds that injury suffered by the respondent No. 1 at best termed as the injury which had caused temporary partial disablement for which the respondent No. 1, may be entitled to the compensation for the maximum period of five years as stated above. Accordingly, the substantial question of law No. 3 is answered in the negative and in favour of the appellant by holding that the disability sustained by the claimant is not permanent partial disablement within the meaning of Section 4(1)(c)(ii) of the Employees’ Compensation Act, 1923, but it can be treated as an injury causing temporary partial disablement within the meaning of Section 4(1)(d) of the said Act. Accordingly, the respondent No. 1 would be entitled to compensation calculated @ half monthly wages amounting to Rs.1,550/- for the total maximum period of disablement of five years as the compensation is calculated as – Rs.1,550/- X 12 X 5 = Rs.93,000/-. The re-calculation of compensation has been done because the accident had occurred on 06.10.2001, and if the matter is remanded back after 16 long years, the respondent No. 1 would suffer injustice. 17. As regards the substantial question of law No. 4, in view of the discussion above, this Court is not inclined to accept the disablement certificate (Exbt.7) given by the Doctor (P.W. 2) to be an admissible evidence. However, finding that the oral evidence of the Doctor could not be demolished during the cross-examination, the loss of earning capacity that there was a loss of earning capacity becomes. However, in view of the finding recorded in respect of substantial question of law No. 3 above, the earning capacity cannot exceed the maximum period of temporary disablement of five years. As this Court has already discarded the finding on permanent partial disablement, the loss of earning capacity is recalculated in accordance with Section 4(2)(ii) of the said Employees’ Compensation Act, 1923 and it is held that the loss of earning capacity assessed by the Doctor (P.W.2) was not in accordance with law. 18. As regards the substantial question of law No. 5, in view of the discussion and decision in substantial question of law No. 5 is answered in the negative by holding that the respondent No. 1 is entitled to compensation not under Section 4(1)(c)(ii) of the said Act, but under Section 4(1)(d) of the said Act and the respondent No. 1 would be entitled to compensation as calculated in paragraph 16 above. 19. In view of above, the appeal stands partially allowed to the extent as indicated above. The appellant may deposit the balance compensation amount before the jurisdictional Commissioner, Workmen’s Compensation, Sonitpur at Tezpur. 20. Let the LCR be returned forthwith. 21. A copy of this order may be sent to the learned Commissioner, Workmen’s Compensation, Sonitpur at Tezpur. 22. At this stage, the learned counsel for the appellant submits that the learned Commissioner, Workmen’s Compensation, Sonitpur at Tezpur had calculated interest of on the quantum of Rs. 1,57,572/-. 20. Let the LCR be returned forthwith. 21. A copy of this order may be sent to the learned Commissioner, Workmen’s Compensation, Sonitpur at Tezpur. 22. At this stage, the learned counsel for the appellant submits that the learned Commissioner, Workmen’s Compensation, Sonitpur at Tezpur had calculated interest of on the quantum of Rs. 1,57,572/-. He prays for direction for recalculation of interest in terms of the realize compensation as awarded today. The said prayer is allowed. 23. The learned Commissioner, Workmen’s Compensation, Sonitpur at Tezpur will recalculate the interest @ 9% from the date of the accident on the compensation quantified at Rs.93,000/- and the recalculated compensation and interest would be subject to adjustment from the amount of Rs.1,39,058/- which was deposited by the appellant before the Registry of this Court and disbursed to the respondent No.1. The balance amount payable as indicated in the preceding paragraph would become due after the recalculation is made.