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2017 DIGILAW 1392 (GAU)

Oriental Insurance Co. Ltd. v. Ram Jatan Sahani

2017-10-31

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : Heard Mr. A. Ahmed, learned counsel for the appellant. None appears on call for the respondent No. 1 although notice was served on the respondent by substituted service by publishing the same in one English and one Assamese daily pursuant to the orders passed by this Court. 2. This appeal under Section 30 of the Workmen’s Compensation Act, 1923 has been filed against the judgment and award dated 17.01.2007 passed by the learned Commissioner, Workmen’s Compensation, Nagaon in NWC Case No. 185/2003. The appeal has been admitted for hearing on the following substantial question of law by order dated 02.01.2008. (i) Whether the assessment of disability and the loss of earning capacity as assessed by the doctor and accepted by the learned Commissioner is tenable in law? (ii) Whether the findings arrived at by the learned Commissioner regarding monthly wages of the claimant contrary to the materials available on record is sustainable? (iii) Whether the percentage of loss of earning capacity can be treated as a substitute for the percentage of physical disability? 3. The brief facts of the case is that the respondent No. 1 was employed as a driver in truck bearing registration No. NLW 1731. That out of and in course of his employment, his vehicle had met with an accident on 24.07.2003, at about 4:00 PM at a place called Badalgaon while proceeding from Hojai towards Nagaon due to head on collision with a Mini Bus. As a result of the accident, he sustained grievous injuries on various parts of his body. He was shifted to B.P. Civil Hospital, Nagaon by the local people. The incident was registered by the Nagaon P.S. under G.D.E. No. 582 dated 24.07.2003. It was stated that because of the injury he had become permanently disabled for which he was unable to perform his job as earlier. He claimed that the owner was aware of the accident but did not pay any compensation to him. He claimed that he was 53 years old at the time of the accident and was getting monthly salary of Rs.2,000/- and a daily allowance of Rs.100/- only. The vehicle was insured with the appellant. On receipt of notice, the respondent No.2/owner of the vehicle did not file his written statement. The appellant contested the case by filing its written statement, taking a plea denial. 4. The vehicle was insured with the appellant. On receipt of notice, the respondent No.2/owner of the vehicle did not file his written statement. The appellant contested the case by filing its written statement, taking a plea denial. 4. On the basis of the pleadings the following issues were framed by the learned Commissioner: (i) Whether the claimant is the workmen in the vehicle No. NLW 1731 owned by the O.P. No.1? (ii) Whether the claimant sustained injuries in an accident arising out of an in course of his employment? If so, what was his physical disablement and loss of earning capacity thereof? (iii) What was he age and salary of the claimant at the time of the accident? 5. To prove the case, the respondent No.1 examined himself as PW.1 and also examined the Doctor as PW.2. PW.1 had stated that he was not cured after treatment and due to pain in his right leg he cannot drive vehicle. He exhibited the following documents, Exbt.1, the accident information report, Exbt.2, X-Ray report, Exbt.3, physical disability certificate and Exbt. 4 to 7, acknowledgment card of notice issued to the respondent No.2. M-Exbt.1 is the X-Ray plate. It may be pertinent to state here that the X-Ray plate (M-Exbt. No.1) is not found on record. The PW.2 i.e. Doctor had stated that on 27.07.2003 he had examined the respondent No.1 for the first time and that the PW.1 had visited his chamber along with some medical papers including X-Ray report, which showed fracture in both bones of right leg. He had stated that besides this injury, the respondent No.1 had suffered injury on his body. He came for treatment after certain intervals and he had examined him for the last time on 16.08.2005, when he detected the development osteo-arthritis of right lower limb with sciatica syndrome. He had opined that for this ailment, the respondent No.1 would find difficulty in performing his job and that the respondent No. 1 suffered from 25% permanent partial disability and 30% loss of earning capacity. In defence, the appellant examined their Assistant Manager as DW.1. Referring to the insurance policy (Exbt. A), he had deposed that the respondent No. 2 had paid insurance premium of Rs.3580/- for basic liability and it covers only the third party liability. In defence, the appellant examined their Assistant Manager as DW.1. Referring to the insurance policy (Exbt. A), he had deposed that the respondent No. 2 had paid insurance premium of Rs.3580/- for basic liability and it covers only the third party liability. The respondent No. 2 had not paid premium for his employees and therefore, the driver and the cleaner of the vehicle were not covered by valid insurance and therefore, denied his liability to pay the compensation. 6. In respect of the said issue, the learned Commissioner had held that the respondent No.1 was a workman in the vehicle involved in the accident owned by the respondent No.2. The accident of the vehicle and injury sustained by the respondent No.1 was accepted because of Exbt.1, Accident Information Report. On the basis of the evidence of the PW.2, the extent of the injury and the resulted disablement was accepted in accordance with injury report (Exbt.3), accepting that the respondent No. 1 had suffered from 25% physical disability and had suffered loss of earning capacity by 30%. The learned Commissioner further held that the appellant had not denied the coverage of insurance policy but had stated that the premium was not realized from the employee. However, by referring to the provisions of Section 147(1)(b) of the M.V. Act, 1988, it was held that the insurance company was statutorily liable to pay compensation in respect of the employee. Accordingly, by accepting the salary of the workman at Rs.4,000/-, the compensation was assessed as under: 60% of Rs.4,000/- X 142.68 X 30% = Rs.1,02,729.60 (rounded up to Rs.1,02,730/-). 7. It was ordered that the respondent No. 1 would be entitled to simple interest on the said compensation @ 9% per annum from the date of accident till realization. The quantum of interest from 24.07.2003 to January, 2007 was calculated at Rs.41,605/-. Direction was issued for depositing the compensation within 30 days from the date of issue of the order. 8. Challenging the said order, the learned counsel for the appellant has assailed it on three grounds. Firstly, it is submitted that the Doctor (PW.2) who had issued the disability certificate (Exbt.3) did not given any initial treatment to the respondent No.1. Direction was issued for depositing the compensation within 30 days from the date of issue of the order. 8. Challenging the said order, the learned counsel for the appellant has assailed it on three grounds. Firstly, it is submitted that the Doctor (PW.2) who had issued the disability certificate (Exbt.3) did not given any initial treatment to the respondent No.1. Submission is made to the effect that the respondent No.1 did not prove the discharge certificate of the hospital, where he claimed to have received initial treatment for two days as indoor patient. It is submitted that the said discharge certificate was withheld to prevent any evidence to come on record as to the condition the respondent No. 1 at the time of his discharge from the said hospital. The second ground urged by the learned counsel for the appellant is that as per the statements given in the cross-examination of PW.2, the evidence of the said Doctor was absolutely unreliable. He had admitted that the injury sustained by the respondent No.1 was a simple fracture and there was every likelihood of reunion of this fracture. He could not say why the respondent No. 1 developed osteo-arthritis. However, the learned Commissioner did not take a note of that. Referring to the cross-examination of the PW.2, a translated copy of which has been filed along with the memo of appeal, it is stated that PW.2 had admitted that there is no mention in Exbt.3 that on which part of leg osteo-arthritis had developed. He had further stated that for developing this disease it would take about one and half years from time of sustaining injury. The PW.2 had also stated that it is not mentioned that on what basis he had issued the discharge certificate (Exbt.3) and that he had not seen any papers here (i.e. in court) for giving treatment to the respondent No. 1 in last two years. He did not advised the respondent No. 1 for an X-Ray when he was examined on 27.07.2003. He had admitted that the Doctor who had issued Exbt. Ka to Exbt. Onga did not mention where the respondent No. 1 had sustained injury. PW.2 had also admitted that in his certificate he did not mention that the injury sustained by the respondent No. 1 is not permanent in nature and also admitted that sciatica syndrome is not permanent in nature. Ka to Exbt. Onga did not mention where the respondent No. 1 had sustained injury. PW.2 had also admitted that in his certificate he did not mention that the injury sustained by the respondent No. 1 is not permanent in nature and also admitted that sciatica syndrome is not permanent in nature. He also admitted that osteo-arthritis was curable and had opined that disease which are not curable are permanent. He had further admitted that it was mentioned in Exbt.2 i.e. X-Ray report that articular margins are intact. 9. Referring to the said cross-examination of PW.2, the learned counsel for the appellant had submitted that if the disease of osteo-arthritis took about one and half years to develop from the time of sustaining injury, the PW.2 could not have found the onset of the said disease on 27.07.2003. He had referred to his examination-in-chief recorded on 06.07.2006, where he had stated as follows: “I have first examined Sri Ram Jatan Sahani on 27.07.2003 which was the RTA of 24.07.2003. I found the injury of the patient mentioned in Exbt.3. Out of which injury No. 3 was grievous. He came to me along with X-Ray report and some other papers. I have found osteo-arthritis of right lower limb with sciatica syndrome. I have again found the same disease on 16.08.2005”. 10. The 3rd ground on which the judgment is assailed is that there was no basis for the Doctor (PW.2) to certify permanent partial disability or loss of income as certified by him in Exbt.3. It is submitted that the present claim petition was filed on 25.08.2003 and on the said date the injury report as issued on 16.08.2005 did not exist. He has disputed the contents of the said injury report on the ground that on 25.07.2003, X-Ray was done only for right leg and as per the report, fracture was seen on both bones of right leg. However, although the PW.2 had not treated the patient then, he had certified that as on 25.07.2003, the respondent No. 1 was having swelling on the right elbow and swelling on the right side of chest with fracture at lower 3rd of both bones of right leg. However, although the PW.2 had not treated the patient then, he had certified that as on 25.07.2003, the respondent No. 1 was having swelling on the right elbow and swelling on the right side of chest with fracture at lower 3rd of both bones of right leg. It is submitted that in the X-Ray report, the mentioning of “communited fracture on lower 3rd of both bones of right leg” was not mentioned and he merely stated in Exbt.2 (i.e. X-Ray report) that- “fracture is seen in the both bone of right leg” without indicating whether the fracture was communited or it was on lower 3rd of both bones of right leg, as stated in Exbt.3, as such, the contents of Exbt.3 did not match with the finding recorded in the X-Ray report (Exbt.2). 11. Referring to the prescriptions issued by the Civil Hospital, Nagaon, it is submitted that the respondent No. 1 had taken treatment at the said hospital on 4/5, 10/5, 8/8 and 3/9 (year not mentioned). It is further submitted that none of the prescriptions indicated whether any plaster was applied to the area where fracture was suffered by the respondent No.1. It is further submitted that on the date when the certificate at Exbt.3 was issued, fresh X-Ray was not done to show that the injuries suffered by the respondent No. 1 had not healed and it is also submitted that in view of the provisions of Rule 21 of the Workmen’s Compensation Rules, 1924, the learned Commissioner could not have relied on Exbt.2 (injury report) as the said document was not filed when the claim petition was filed and there was no order on record accepting the said document after the commencement of trial. It is submitted that the written statement was filed by the appellant on 17.02.2003 and these documents came into the existence after the same was filed. 12. In support of his argument the learned counsel for the appellant has relied on the case of Divisional Manager, United Insurance Co. Vs. Prabhat Kumar Dhal and Ors., 2000 (1) T.A.C. 594. Referring to the same, it is submitted that the non-examination of the Doctor who had given the first treatment, was held to be fatal. 13. Considered the argument advance by the learned counsel for the appellant and also perused the material on record. 14. Vs. Prabhat Kumar Dhal and Ors., 2000 (1) T.A.C. 594. Referring to the same, it is submitted that the non-examination of the Doctor who had given the first treatment, was held to be fatal. 13. Considered the argument advance by the learned counsel for the appellant and also perused the material on record. 14. On the perusal of the evidence on record, the following prescription dated 24/7 (Exbt.8), prescription dated 3/9 (Exbt.ka), prescription dated 4/5 (Exbt.kha), prescription dated 10/5 (Exbt.ga), prescription dated 8/8 (Exbt.gha), prescription dated 26/7 (Exbt. onga), injury report dated 16.08.2005 (Exbt.3) does not indicate whether Plaster of Paris was applied upon the fractured areas of the right leg of the respondent No. 1. There is no exhibit showing removal of Plaster of Paris on the right leg of the respondent No.1. The records reveal that there is a prescription issued by the PW.2 on 27.07.2003, but the same has not been marked as an exhibit. There is no opinion of the Radiologist on record showing the development of osteo-arthritis in the right lower limb with sciatica syndrome. Therefore, the non-examination of the Doctor who had given initial treatment prior to the treatment given by the Doctor (PW.2) is questionable. Therefore, the deposition of the PW.1 in his cross-examination-in-chief where he had stated that he had sustained injury on his chest, application of stitches on his forehead and application of plaster on his right leg is not substantiated by the documentary evidence on record. Moreover, the X-Ray plate (M. Exbt.1) is not found on record. There is no order available in the record of the claim case, directing return of the X-Ray plate back to the respondent No. 1. Moreover, there is no evidence on part of the PW.1 and PW.2 to show that the respondent No. 1 had become unable to perform any other work or job for his gainful employment. 15. There is no order available in the record of the claim case, directing return of the X-Ray plate back to the respondent No. 1. Moreover, there is no evidence on part of the PW.1 and PW.2 to show that the respondent No. 1 had become unable to perform any other work or job for his gainful employment. 15. The requirement of the provisions of Section 2(1)(g) of the Workmen’s Compensation Act is quoted below: “(g) Partial disablement" means, where the disablement is of a temporary nature, such disablement as reduces the earning capacity of a workman in any employment in which he was engaged at the time of the accident resulting in the disablement, and, where the disablement is of a permanent nature, such disablement as reduces his earning capacity in every employment which he was capable of undertaking at that time: provided that every injury specified in Part II of Schedule I] shall be deemed to result in permanent partial disablement.” 16. Therefore, unless there is evidence by the Doctor that the injury sustained by the respondent No. 1 had reduced his earning capacity in every employment which he was capable of undertaking at that time, the injury suffered in the accident by the respondent No. 1 cannot be termed as a permanent partial disablement. In the absence of any writing in a prescription as to how many days the respondent No. 1 was advised rest because the application of Plaster of Paris on the injured area, this Court is unable to ascertain the period of time for which the appellant had allegedly suffered temporary partial disability. The non-production of (i) the record of treatment availed by the respondent No. 1 in respect of application of plaster on the fracture area, and (ii) the discharge certificate issued by the Civil Hospital at Nagaon, there is no evidence to show that the respondent No. 1 had been hospitalized as an indoor patient. In his evidence, PW.1 had stated that he had stayed at his residence and took private treatment from the Doctor (PW.2) is not inspiring as to the truth of such statement because the PW.1 did not prove any prescription issued by the PW.2 for availing his treatment prior to the date of issuing injury report (Exbt.3). In his evidence, PW.1 had stated that he had stayed at his residence and took private treatment from the Doctor (PW.2) is not inspiring as to the truth of such statement because the PW.1 did not prove any prescription issued by the PW.2 for availing his treatment prior to the date of issuing injury report (Exbt.3). Moreover, the entries made in the injury report (Exbt.3) does not indicate that it was because of accident on 24.07.2003, the respondent No. 1 had developed Osteo-arthritis with sciatica syndrome. As per the statement made by PW.2 in his cross-examination, the fracture was simple and there was likelihood of re-union of this fracture. Therefore, in absence of any report that the fracture of the right leg of the respondent No. 1 did not heal as on 16.08.2005, the contents of injury report (Exbt.3) is an opinion not based on facts on record, but is based on surmises and conjectures alone because it is not the case of the respondent No.1 that fracture on leg caused joint injury leading to Osteo-arthritis. The Doctor (PW.2) has not recorded in Exbt.3 how he concludes or arrived at a finding of Osteo-arthritis in respondent No.1. In view of injury report dated 16.08.2005, the cause of action for filing the claim petition did not arise on 25.08.2003, because as on the date of finding of the claim petition on 25.08.2003, there is no opinion of any Doctor showing that the respondent No. 1 had suffered any disability. 17. Therefore, in view of the discussion above, this Court is not convinced to accept the finding recorded by the learned Commissioner, Workmen’s Compensation as regards permanent disability suffered by the respondent No. 1. It is seen that the respondent No. 1 did suffer fracture injury on right leg and therefore, had suffered some amount of disability for few days and he had lost his income for a few days. However, the loss of man-days is not evident on the perusal of the evidence on record. 18. It is seen that the respondent No. 1 did suffer fracture injury on right leg and therefore, had suffered some amount of disability for few days and he had lost his income for a few days. However, the loss of man-days is not evident on the perusal of the evidence on record. 18. In view of the discussion above, as regards substantial question of law No.(i) it is held that as the Doctor (PW.2) did not opine that the respondent No. 1/claimant had reduced his earning capacity in every employment which he was capable of undertaking, and as the contends of injury report (Exbt.3) does not prove any disability suffered by the respondent No. 1, the said question is answered in the negative and in favour of the appellant. As a consequence, the other two substantial question of law No. (ii) and (iii) now remains only academic and need not be answered because the injury report (Exbt.3) is disbelieved on merit as well as on the ground that the document came into existence on 16.08.2005, i.e. after the claim petition was filed on 25.08.2003 and the said document has come to record for first time while tendering evidence, which is in violation of Rule 21 of the Workmen’s Compensation Rules, 1924. Hence, both questions No. (ii) and (iii) does not survive for any decision thereon. 19. In the case of Golla Ranjana Vs. Divisional Manager, (2017) 1 SCC 45 , the Hon’ble Supreme Court of India has held as follows:- “10. The Workmen’s Compensation Commissioner, having regard to the evidence, had returned a finding on the nature of injury and the percentage of disability. It is purely a question of fact. There is no case for the insurance company that the finding is based on no evidence at all or that it is perverse. Under Section 4(1)(c)(ii) of the Act, the percentage of permanent disability needs to be assessed only by a qualified medical practitioner. There is no case for the respondents that the doctor who issued the disability certificate is not a qualified medical practitioner, as defined under the Act. Thus, the Workmen’s Compensation Commissioner has passed the order based on the certificate of disability issued by the doctor and which has been duly proved before the Workmen’s Compensation Commissioner. 11. Under the scheme of the Act, the Workmen’s Compensation Commissioner is the last authority on facts. Thus, the Workmen’s Compensation Commissioner has passed the order based on the certificate of disability issued by the doctor and which has been duly proved before the Workmen’s Compensation Commissioner. 11. Under the scheme of the Act, the Workmen’s Compensation Commissioner is the last authority on facts. The Parliament has thought it fit to restrict the scope of the appeal only to substantial questions of law, being a welfare legislation. Unfortunately, the High Court has missed this crucial question of limited jurisdiction and has ventured to re-appreciate the evidence and recorded its own findings on percentage of disability for which also there is no basis. The whole exercise made by the High Court is not within the competence of the High Court under Section 30 of the Act.” 20. In view of above decision of the Hon’ble Supreme Court of India, notwithstanding the fact that the accident had taken place on 24.07.2003, as the issue regarding computation of compensation and the period of disability suffered, is an issue of fact, this Court deems it fit to remand the matter back for a fresh decision by the learned Commissioner, Workmen’s Compensation, Nagaon. The learned Commissioner is first required to decide whether the disability suffered by the respondent No. 1 was permanent disability or it was temporary partial disability. 21. Accordingly, the impugned judgment and award dated 17.01.2007 passed by the learned Commissioner, Workmen’s Compensation, Nagaon in NWC Case No. 185/2003 is set aside and this appeal is partly allowed. 22. To facilitate fresh trial on remand, it is provided that the learned Commissioner, Employees’/Workmen’s Compensation, Nagaon shall re-hear and decide the matter afresh by giving reasonable opportunity to the parties to lead fresh evidence. 23. The learned Commissioner, Workmen’s Compensation is further directed to take note that the said authority is required to send the entire records when called for in appeal and the without passing any appropriate orders, the learned Commissioner is not authorized to return back any material exhibits like, X-Ray plate so as to withhold the said records from being perused by this Court. The learned Commissioner will take note of the aforesaid observation of this Court and follow the same scrupulously. 24. There shall be no order as to costs 25. Let the LCR be returned back urgently together with a copy of this order. 26. The learned Commissioner will take note of the aforesaid observation of this Court and follow the same scrupulously. 24. There shall be no order as to costs 25. Let the LCR be returned back urgently together with a copy of this order. 26. At this stage, the learned counsel for the appellant submits that the entire compensation amount had been deposited before the jurisdictional Commissioner. As this appeal has been partly allowed by setting aside the impugned judgment, the learned Commissioner shall refund the amount deposited by the appellant.