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2017 DIGILAW 1277 (GAU)

Oriental Insurance Co. Ltd. v. Md. Hazrat Ali

2017-09-12

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : Heard Mr. S.K. Goswami, learned counsel for the appellant. None appears on call for the respondent No. 1. However, notices were duly served. 2. By filing this 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 appellant has challenged the judgment and order dated 16.05.2007 passed by the learned Commissioner, Workmen’s Compensation, Nagaon in N.W.C. Case No. 113/2004. 3. The present appeal was admitted by order dated 26.10.2009 on the following substantial questions of law:- (i) Whether the learned Commissioner, Workmen’s Compensation could have, as has been done in the present case, assess the monthly wages of a workman contrary to the definition given in Section 2(n) of the Workmen’s Compensation Act, 1923, taking together salary and daily allowances? (ii) Whether the learned Commissioner, Workmen’s Compensation could have, as has been done in the present case, assess the compensation considering the loss of earning capacity assessed by the doctor, which is contrary to the loss of earning capacity provided in Schedule I of the Workmen’s Compensation Act, 1923? (iii) Any other question, which may be allowed to be raised at the time of hearing? 4. At the outset, the learned counsel for the appellant has submitted that issue No. 1 has already been settled by various judgments of this Court by which daily allowance has been held to be a part of the salary and therefore, he does not press the substantial question of law No. 1 as formulated by this Court while admitting the appeal. 5. The learned counsel for the appellant has referred to the evidence of Doctor (PW.2), who has admitted in his cross-examination that Exbt.10 i.e. medical certificate of disability was issued on the basis of the x-ray report which was done at the initial stage when the accident had occurred. He has further referred to the cross-examination wherein PW.2 i.e. Doctor had admitted that the respondent No. 1 could carry out any other work. He has further referred to the cross-examination wherein PW.2 i.e. Doctor had admitted that the respondent No. 1 could carry out any other work. Accordingly, it is submitted that when the Doctor (PW.2) himself has admitted in his cross-examination that the respondent No. 1 could carry out any other work and further in his cross-examination where he had admitted that the fracture in the rib would take six months time to heal and fracture in the ankle joint would also take six month to heal there was no material on record to treat the injury as one which could produce permanent disability. It is submitted that by no stretch of imagination, in light of the admission in the cross-examination of Doctor (PW.2) can the injury be classified to be one which is covered by the provisions of Section 4(1)(c)(ii) of the Workmen’s Compensation Act, 1923. It is submitted that if the injury took six months time to heal and the respondent No. 1 could carry out any other work, the learned Commissioner, Workmen’s Compensation had erred in law and on facts by not treating the said injury as the one which is covered by the provisions of Section 4(1)(d) of the Workmen’s Compensation Act, 1923. Referring to the injury report (Exbt.10), the learned counsel for the appellant submits that there was no evidence of any medical investigation which was carried out prior to 05.03.2006 to show that after the date of the accident the patient was developing Chronic Osteochondritis of left side of chest with arthralgia of right ankle and, as such, the assessment of 20% permanent physical disability and the Doctor’s opinion that the earning ability of respondent No. 1 was reduced by 40% is without any basis and was only a guess work. As per the statement made by the PW.2 i.e. Doctor in his cross-examination, he had stated that he had taken note of the Schedule of the Workmen’s Compensation Act while certifying the loss of earning ability at 40% and in this context, the learned counsel for the appellant submits that for major condition of amputation of part of the leg, 40% of reducing of earning ability is prescribed in Schedule-I, Part-II of the Workmen’s Compensation Act, 1923, and therefore, merely because there was a injury in the wrist and ankle, the reduction of earning ability could not have been accepted by the learned Commissioner, Workmen’s Compensation at 40% in terms of the Doctor’s certificate (Exbt.10). 6. Considering the arguments advanced by the learned counsel for the appellant, it would be relevant to refer to the meaning of Osteochondritis which as per the new Medical Dictionary, 3rd Edition published by Oxford and IBH Publishing Co. Ltd. is as follows: “Osteochondritis- inflammation of bone and cartilage o dissecans a disorder following an injury, releasing small fragments of cartilage or bone into the joint space especially of the knee and elbow o juvenilis inflammation of a growing area of bone in a child or adolescent. It causes local pain and distortion of a joint.” 7. Having notice of definition of the disease Chronic Osteochondritis, there is nothing on record that by what process the Doctor (PW.2) arrived at a finding that there was inflammation of bone and cartilage without getting an x-ray done prior to issuance of the certificate. He has not recorded the clinical finding by virtue of which, he arrived at a finding of the existence of chronic Osteochondritis on the respondent No.1. 8. Moreover, on the perusal of the materials available on record, it appears that the medical certificate (Exbt.10) was issued on 05.03.2006 whereas the present complaint case was filed by the respondent No. 1 before the court of learned Commissioner Workmen’s Compensation, Nagaon on 14.09.2004. Therefore, as on the date of the filing of the said complaint case, the document of Exbt.10 was not in existence. 9. At this juncture, the learned counsel for the appellant has referred to the case of National Insurance Co. Ltd. Vs. Therefore, as on the date of the filing of the said complaint case, the document of Exbt.10 was not in existence. 9. At this juncture, the learned counsel for the appellant has referred to the case of National Insurance Co. Ltd. Vs. Bimal Nath, 2009 (1) GLT 370 and place paragraph 22 thereof and has submitted that in view of the admission made by the Doctor (PW.2) that the fracture would take six months time for the injury complaint to heal and that he was able to take other works as per the cross-examination of PW.2 i.e. Doctor, this Court may treat/consider the injury complained of to be one under Section 4(1)(d) of the Workmen’s Compensation Act, 1923 and to that effect the impugned order may be modified. 10. Having considered the order of this Court passed in the case of Bimal Nath (supra) and on consideration of the statement made by the Doctor (PW.2) in his cross-examination as referred earlier, this Court has no hesitation to hold that the respondent No. 1 did not suffer a permanent partial disability within the meaning of Section 4(1)(c)(ii) of the Workmen’s Compensation Act, 1923, but the injury complaint of is squarely covered within the meaning of Section 4(1)(d) of the Workmen’s Compensation Act, 1923 by holding that the injury complained of is temporary partial disablement for a maximum period of six months as suggested by the Doctor (PW.2). 11. Accepting the finding of the learned Commissioner, Workmen’s Compensation, Nagaon that the respondent No. 1 was earning a sum of Rs.4,000/- per month, in terms of the provisions of Section 4(1)(d) of the Workmen’s Compensation Act, 1923, he is entitled to half monthly payment of 25% of the monthly wages of the employees i.e. Rs. 1,000/- and therefore, the computation of compensation would be Rs.1000/- X 2 X 6 = Rs.24,000/-. 12. However, it is noticed by this Court that out of the sum of Rs. 1,97,712/- deposited by the appellant, 50% of such deposit has been withdrawn by the respondent No. 1 on the strength of the order dated 28.11.2007. Therefore, considering the fact that the respondent No. 1 at the relevant time was a driver, he may had spent the said sum and therefore, the appellant may not be able to recover the aforesaid sum. Therefore, considering the fact that the respondent No. 1 at the relevant time was a driver, he may had spent the said sum and therefore, the appellant may not be able to recover the aforesaid sum. Therefore, in view of the evidence by the PW.1 that he has spent amount of Rs.30,000/- for medical expenses, the amount of compensation is assessed Rs.24,000/- while the balance amount of money withdrawn is required to be considered as the cost of treatment and the same is also awarded to the appellant as full and final compensation for the injury which he suffered in the accident complained of. 13. This appeal stands allowed and the impugned judgment and order dated 16.05.2007 passed by the learned Commissioner, Workmen’s Compensation, Nagaon in N.W.C. Case No. 113/2004 stand partially modified to the extent as indicated above. 14. Needless to say that the appellant shall become entitled to the refund of balance 50% of the amount already deposited before the learned Commissioner, Workmen’s Compensation, Nagaon. 15. Let the LCR be returned forthwith.