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Gauhati High Court · body

2017 DIGILAW 1284 (GAU)

New India Assurance Co. Ltd. v. Md. Imran Hussain

2017-09-14

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : Heard Mr. S. Dutta, learned Senior counsel assisted by Mr. S. Dutta, learned counsel for the appellant. None appears on call for the respondent although the notice of this appeal was published in one English and Assamese language daily circulating in the State of Assam. 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 award dated 28.05.2004 passed by the learned Commissioner, Workmen’s Compensation, Nagaon in N.W.C. Case No. 238/2002. 3. The present appeal was admitted by order dated 04.01.2008 on the following substantial questions of law:- (i) Whether daily allowances earned by the employee can be construed as part of the salary? (ii) Whether the claimant can be construed to be a cleaner when employer denied the same? (iii) Whether interest can be imposed from the date of accident? 4. At the outset that insofar as the substantial question of law No. 1 is concerned by now it has been well settled that daily allowance earned by the employee is to be construed as part of the salary and therefore, in view of the said provisions of law he does not does the first substantial question of law as framed in this appeal. Therefore, this Court is now to consider only the substantial question of law No. 2 and 3. The learned Senior counsel for the appellant has referred to the written statement of the respondent No. 2 i.e. the owner of the vehicle involved in the accident to show that in paragraph 4 of the said written statement, the owner/respondent had categorically denied that the respondent No. 1 was engaged as cleaner by giving a positive statement that the respondent No. 1 was never been engaged as cleaner or an any other work in his mini bus and thus, denied the employment of the respondent No. 1/claimant under him. 5. It is further submitted that the notice issued under Section 10 of the Workmen’s Compensation Act, 1923, which is marked as Exbt.4 is not proved to have been actually served on the respondent No. 1 and therefore, unless the obligation to serve a notice on the respondent No. 1 was fulfilled, the claim petition before the learned Commissioner, Workmen’s Compensation was not maintainable. It is further submitted that although there is reference in the impugned judgment regarding x-ray plate as exhibit material No. 1 and copy of the FIR and seizure list which was marked as Exbt.9, but the said documents do not found a part of the LCR as sent to this Court. 6. On a perusal of the trial court’s record, a statement made by the learned Senior counsel for the appellant appears to be correct. Further submission of the learned Senior counsel for the appellant was that there are overwriting in Exbt.3, being the injury report dated 12.02.2003 and the places where overwriting was done is clearly visible. Authenticity of the injury report is therefore, questioned. It is further submitted that the said injury report (Exbt.3) was prepared on the basis of the x-ray of the chest done on 19.03.2001 showing fracture on the 6th , 8th , 9th and 10th rib of right side, but there is no statement therein that on physical examination, the said 6th , 8th , 9th and 10th rib of right side was not healed as on the date of issuing of the injury report. It is submitted that the date of the injury report is also questionable because in page No. 1 thereof the date given is 12.02.2003 where is the signature at the page No. 2 (page No. 28 of LCR) reveals that the signature was done on 12.12.2003. The learned Senior counsel of the appellant has referred to the cross-examination of Doctor (PW.2) who has denied that the signature was done on 12.12.2003, and instead stated that the injury report (Exbt.3) bearing his signature at Exbt.3(1) was of 12.02.2003. On the perusal of the signature at Exbt. 3(1), the version of the Doctor (PW.2) appears to be not acceptable as the date clearly appears to be 12.12.2003. However, there appears to be a mistake in putting the date because the evidence of a Doctor (PW.2) was recorded on 13.05.2003. But nevertheless, owing to the overwriting the said document anxiety shown by the learned Senior counsel for the appellant appears to be justified. However, there appears to be a mistake in putting the date because the evidence of a Doctor (PW.2) was recorded on 13.05.2003. But nevertheless, owing to the overwriting the said document anxiety shown by the learned Senior counsel for the appellant appears to be justified. It is further submitted that as per the said injury report, the percentage of disability was certified at 30% and thereafter, the said Doctor (PW.2) had improved the case of the respondent No. 1/claimant by deposing in his evidence-in-chief that the loss of earning capacity is also 30% and in this context, it is submitted that the evidence tendered by the Doctor (PW.2) was contrary to the contains of Exbt.3 and therefore, an oral evidence which is contrary to the documentary evidence would stand excluded under Section 92 of the Evidence Act, 1872. 7. It is further submitted that in order to certify that the claimant had suffered disability on account of the injuries sustained in the accident, unless there was a current x-ray as on the date of examination of the claimant by the Doctor (PW.2). The Doctor (PW.2) had not certified even by clinical examination that the injury did not heal and which led to a disability. It is further submitted that as the Doctor (PW.2) had relied on the x-ray dated 19.03.2001, it would certainly show that there was a fracture of the rib because the accident took place on 19.03.2001. In this context, it is submitted that it must be successfully shown by the claimant that on the date when the injury report was issued, he still suffered a disability, which entitled him to be certified to be disabled by 30%. It is further submitted that there was nothing on record to show the same. It is further submitted that there is nothing in Exbt.3 i.e. injury report that the claimant/respondent No. 1 had lost his earning capacity in any other work or employment which he could have done and therefore, without a finding on the same in the injury report (Exbt.3), the evidence of loss of earning capacity by the Doctor (PW.2) is beyond record and therefore, not admissible, being contrary to the evidence on record the Exbt.3. 8. 8. The learned Senior counsel for the appellant has further submitted that it is well settled that in the case of injury, interest on the awarded sum is to be effected from the date of the adjudication and therefore, the levy of interest in the impugned judgment from the date of the accident is liable to be interfered with. As per the submissions made, it is submitted that at best the disability complained of can be taken as a temporary partial disability within the meaning of Section 4(1)(d) of the Workmen’s Compensation Act, 1923 and in no way this was a case of permanent total disablement within the meaning of Section 4(1)(c)(ii) of the Workmen’s Compensation Act, 1923. 9. Having considered the arguments advanced by the learned Senior counsel for the appellant as well as on perusal of record, it appears from the record that the claim petition was filed before the learned Commissioner, Workmen’s Compensation on 27.09.2002. As on the said date, there was no material before the claimant or before the learned Commissioner, Workmen’s Compensation that the respondent No. 1 was suffering from any disablement. 10. At this juncture, it would be relevant to refer to the provisions of Rule 21 of the Workmen’s Compensation Rules, 1924. The said provision provides that when an application is for relief based upon a document, the document shall be appended to the application. In the present case in hand, going by the evidence of the Doctor (PW.2), the injury report (Exbt.3) was prepared on 12.02.2003 which is after the date when the claim for compensation was filed. In the order sheet of the court of learned Commissioner there is no mention that any leave was sought for by the respondent No.1/claimant to introduce the said injury report (Exbt.3). As per the trial court’s record, the appellant herein had filed their written statement on 25.02.2003 and as on the said date, the injury report (Exbt.3) did not form a part of the trial court record. As per the trial court’s record, the appellant herein had filed their written statement on 25.02.2003 and as on the said date, the injury report (Exbt.3) did not form a part of the trial court record. Therefore, this Court is of the view that the introduction of such material document like injury report directly at the time of evidence without the leave of the court is hit by the provisions of Rule 3 of Rule 21 of the Workmen’s Compensation Rules, 1924, which provides that if any document is not produced at or within the time specified in Sub-rule (1) (2) as the case may be, shall not, without the sanction of the Commissioner, be admissible in evidence on behalf of the party, who should have produced it. 11. In the opinion of this Court, the said provision of Rule 21 of the said Workmen’s Compensation Rules, 1924 appears to be similar to the provisions contained in Order VII Rule 14(3) CPC. That being the position of law, this Court cannot take cognizance of the practice being followed by the learned Commissioner, Workmen’s Compensation to allow the documents to be proved for the first time in course of evidence as the said practice is found to be contrary to the provisions of Rule 21 of the said Workmen’s Compensation Rules, 1924. Hence, the said practice cannot get the approval of this Court. Moreover, as the injury report (Exbt.3) does not indicate the clinical finding, which prompted the Doctor to give an opinion that the respondent No. 1/claimant suffered 30% disability, in the absence of any x-ray showing the presence of such disability. The said certificate issued on the basis of x-ray done on 19.03.2001 can only be taken as a guess work and therefore, the basic requirement of the Workmen’s Compensation Act that the injury must be certified by registered medical practitioner has been rendered only a mere formality if a Doctor is permitted to make a visual assessment of a injured person and does not give an clinical finding as to what sort of disability was found would amount to frustrating the basic purpose of the Workmen’s Compensation Act, 1923, which is a beneficial legislation so as to render it as a legislation to dole out money in the name of accident compensation. 12. 12. In view of above finding, this Court is unable to accept that the claimant has been able to prove that he had suffered any disability. As the introduction of the Doctor’s injury report (Exbt.3) is found to be contrary to the rules indicated above. 13. The Hon’ble Supreme Court in the case of Golla Rajanna Vs. Divisional Manager, (2017) 1 SCC 45 : 2016 0 Supreme(SC) 920 has laid down that the Commissioner is the last authority on facts and therefore, re-appreciating of the evidence and recording of its own finding by the High Courts on the percentage of disability is without jurisdiction. Therefore, although this Court is conscious that the accident complained of was on 12.03.2001, yet being bound by the ratio of the case of Golla Rajanna (supra), this Court is not inclined from giving any finding of facts and therefore, this appears to be a fit case for remanding the matter back to the learned Commissioner, Workmen’s Compensation, Nagaon for fresh trial. 14. Liberty is granted to the appellant to approach the Court of Commissioner, Employees’ Compensation, Nagaon if so advised within the outer period of 3 (three) months from today by producing a certified copy of the order. It is provided that if the respondent No.1/claimant approaches the learned Commissioner, the said learned Commissioner would try the matter afresh by giving reasonable opportunity to the parties to prove their respective case. This is being done because if the respondent No.1 is not inclined to pursue the remanding of further trial it would be unnecessary for the learned Commissioner to restore the case on remand. Moreover, considering the probability that the respondent No.1, might have changed his residence, and if a case is restored suo-motu, he may not be served with a notice from the Court on his earlier address which would lead to more delay or even with invite dismissal of his case without his actual knowledge. Therefore instead of ordering a suo-motu retrial, it is made clear that by this order of remand, it is left open for the respondent No.1 to agitate the matter on remand, if so advised. 15. The appeal stand allowed to the extent as indicated above. 16. Return back the LCR. 17. Let a copy of this Court be sent to the Secretary, Department of Labour, Govt. 15. The appeal stand allowed to the extent as indicated above. 16. Return back the LCR. 17. Let a copy of this Court be sent to the Secretary, Department of Labour, Govt. of Assam to bring to his notice to take steps on the administrative side to inform all the Commissioners, Workmen’s Compensation to scrupulously follow the provisions of Rule 21 of the Workmen’s Compensation Rules, 1924, and to further ensure that all the exhibits including the materials like x-ray should be sent by the respective Commissioners along with the LCR when the records are called for by a superior Court. This is done because the aforesaid deficiency has come to light in several such appeals. Further, as the respondent No. 1/claimant is absent, copy of this order may be communicated to the respondent No.