Research › Search › Judgment

Gauhati High Court · body

2017 DIGILAW 14 (GAU)

New India Assurance Company Ltd. v. Paltu Sah

2017-01-03

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : Kalyan Rai Surana, J. Heard Mrs. M. Choudhury, learned counsel for the appellant. Also heard Ms. M. Khanikar, learned counsel for the respondent No. 1/claimant. 2. This appeal has been filed under Section 30 of the Workmen's Compensation Act, 1923 (now renamed as Employees' Compensation Act, 1923 and hereinafter referred to as "said Act"). By this appeal, the appellant has challenged the legality and validity of the judgment and award dated 28.01.2008 passed by the Commissioner, Workmen's Compensation, Golaghat, in WC Case No. 22/2005. By the said judgment, the learned Commissioner, Workmen's Compensation, held that on 22.07.2005, the respondent No. 1, who was a paid Handiman by profession, while travelling in vehicle No. AS-05-A-3371, suffered an accident by falling down from a running vehicle and as a result, the claimant sustained head injuries and fracture of left tibia and relying on the certificate issued by the Medical Practitioner, the assessment of loss of function was assessed of 55% excluding the head injury and assessed the loss of earning capacity of 55% and passed an award of Rs. 2,18,386/- only, holding the amount liable to pay compensation amount to the claimant, directing payment to be made within a period of 30 days, failing which the amount would carry an interest @ 10% per annum from the date of accident and 50% penalty on the awarded amount. 3. This Court, while admitting the appeal, by order dated 10.12.2008, formulated the following substantial question of law:- "(i) Whether the Commissioner under Workmen's Compensation Act, 1923 can assess the loss of earning capacity on its own without there being any medical evidence in that regard? (ii) Whether interest on the compensation amount can be made payable from the date of accident? (iii) Whether the Insurance Company can be fastened with the liability to pay penalty?" 4. Mrs. Choudhury submits that the injuries, which were sustained by the respondent No. 1/claimant, were the injuries not covered by Schedule 1 appended to the said Act and therefore, she submits that it was the duty of the learned Commissioner, Workmen's Compensation, to resort to the provisions of Section 4(1)(c)(ii), because the injuries are not specified in Schedule 1. By referring to the aforesaid provision of law, Mrs. By referring to the aforesaid provision of law, Mrs. Choudhury submits that the Commissioner, Workmen's Compensation is required to not only assess the percentage of disability, but he is also required to assess the loss of earning capacity as assessed by the qualified Medical Practitioner. She relies on the judgment of this Court in the case of New India Assurance Company Limited v. Sanjit Kumar and another, reported in 2000 (2) GLT 567 and submits that by the said judgment, this Court has held that the Workmen's Compensation Act does not give the power to the Court to make its own calculation for the purposes of determining the percentage of loss of earning capacity and by laying down the said ratio, this Court has set aside and quashed the judgment and award, which was impugned in the said case. 5. In view of the said submissions made by Mrs. Choudhury, it is deemed not to be necessary to go to the facts of this case at this stage. 6. Per contra, Mrs. Khanikar supported the correctness of the said judgment and award and submits that not only the respondent No. 1 is entitled to the amount as was awarded by the impugned judgment, but by filing a cross-objection, which is registered and numbered as Cross-Objection No.2 of 2009, the respondent No. 1 is claiming a further enhancement of the claim of the respondent No. 1 on the ground that the learned Commissioner, Workmen's Compensation incorrectly assessed the loss of earning capacity at 55%, whereas by the nature of injury suffered by the respondent No. 1, his loss of earning capacity ought to have been assessed to 100%. She submits that the injuries suffered by the respondent No. 1 was grievous in nature and that apart, the respondent No. 1 was not in a position to face the ray of the sun, he has lost his memory and therefore, he is unfit to take up any other vocation for his disability and she prays for the enhancement of the compensation. 7. This Court finds force in the argument of Mrs. Choudhury, which is based in the ratio laid down by this Court in the case of Sanjit Kumar (supra). By the said judgment, this Court has held as follows:- "4. The Workmen's Compensation Act provides the mode and method to determine the compensation. 7. This Court finds force in the argument of Mrs. Choudhury, which is based in the ratio laid down by this Court in the case of Sanjit Kumar (supra). By the said judgment, this Court has held as follows:- "4. The Workmen's Compensation Act provides the mode and method to determine the compensation. The Court cannot adopt some mode or method which is not provided in the Act. In the portion of the award quoted above, the Court determined the percentage of loss of earning capacity at 50%. That power is not available with the Commissioner. So, this award shall stand quashed and the matter now shall go back to the Commissioner to assess the compensation afresh and in order to do that, he may even ask the doctor to appear before him and give his opinion with regard to percentage of loss of earning capacity." 8. In view of the said ratio as laid down by this Court, this Court is of the opinion that as regards the first substantial question of law, the Commissioner under the said Act does not have the power to make its own assessment of the loss of earning capacity of its own without there being any medical evidence in that regard and, as such, the first substantial question of law is answered in the negative and in favour of the appellant in terms of the ratio laid down in the case of Sanjit Kumar (supra). 9. As regards the second substantial question of law as to whether the interest on the compensation amount can be made payable from the date of accident, Mrs. Choudhury relies on the judgment of this Court in the case of Oriental Insurance Company Limited v. Paren Narzary and another, reported in 2012 (4) GLT 718, wherein this Court has held that the starting point of interest of which the payment of compensation falls due and it cannot be made payable from the date of accident. 10. In that view of the ratio as laid down by this Court, this Court is of the opinion that the second substantial question of law be also decided in the negative and against the respondent No. 1 as it has already been held in the case of Oriental Insurance Company Limited (supra) that interest cannot be fastened from the date of accident. 11. 11. In respect of the third substantial question of law, as to whether the Insurance Company can be fastened with the liability to pay penalty, Mrs. Choudhury relies in the case of Ved Prakash Garg v. Premi Devi and others, reported in (1997) 8 SCC 1 , wherein it has been held as follows:- "19. As a result of the aforesaid discussion it must be held that the question posed for our consideration must be answered partly in the affirmative and partly in the negative. In other words the insurance company will be liable to meet the claim for compensation along with interest as imposed on the insured employer the Workmen's Commissioner under the Compensation Act on the conjoint operation of Section 3 and Section Act on the conjoint operation of Section 3 and Section 4A sub-additional amount of compensation y way of penalty imposed on the insured employer by the Workmen's Commissioner under Section 4(3). (b) is concerned, however, the insurance company would not remain liable to reimburse the said claim and it would be the liability of the insured employer alone." 12. Hence, in that view of the matter, as it is settled position that the Insurance Company cannot be fastened with the liability to pay penalty from the date of accident, as such, accrue after the award and penalty can only be made after such payment became due, as such, the third substantial question of law is also answered in the negative and in favour of the appellant. 13. Having decided the three substantial questions of law in the manner aforesaid, this Court is of the view that as the said Act provides the mode and method to determine the compensation, the Commissioner, Workmen's Compensation is required to act in consonance with the provisions contained in the said Act. Therefore, the impugned judgment and award dated 28.01.2008 passed by the Commissioner, Workmen's Compensation, Golaghat, in WC Case No. 22/2005 is set aside and quashed. However, the matter is again relegated before the said Commissioner to assess the compensation afresh by asking the doctor to appear before him and to give his opinion with regard to the percentage of loss of earning capacity by affording adequate opportunity to the parties afresh to prove their respective cases. 14. Mrs. Choudhury also submits that in the meanwhile, the appellant has deposited a sum of Rs. 14. Mrs. Choudhury also submits that in the meanwhile, the appellant has deposited a sum of Rs. 1,19,202/-, being 50% of the awarded amount before the Commissioner, Workmen's Compensation, Golaghat, which is recorded in the proceedings before the said Commissioner by order dated 27.01.2009. The said amount shall be adjusted against the award, which is to be finally passed by the Commissioner, Workmen's Compensation, Golaghat after the reassessment of the loss of earning capacity in the manner as indicated above. 15. As in the present case, the respondent No. 1 had suffered injury way back on 22.07.2005, it is expected that the learned Commissioner shall undertake afresh assessment of compensation within a period of 6 months from the date of receipt of the LCR. The parties are directed to appear before the Commissioner, Workmen's Compensation, Golaghat, on 03.02.2017 to take further instructions from the said learned Commissioner. 16. The appeal stands allowed. The Registry shall forthwith send back the LCR.