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Gauhati High Court · body

2017 DIGILAW 1429 (GAU)

Oriental Insruance Co. Ltd. v. Bimal Pathar

2017-11-13

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : Heard Mr. S. Dutta, learned Senior counsel assisted by Mrs. M. Choudhury, learned counsel for the appellant. None appears on call for the respondents No. 1 and 2 although the names of the learned counsel for the respondents are reflected in the cause list. 2. This appeal under Section 30 of the Workmen’s Compensation Act, 1923 has been filed against the judgment and award dated 04.09.2008 passed by the learned Commissioner, Workmen’s Compensation, Nagaon in W.C. Case No. 94/2003. The appeal has been admitted for hearing on the following substantial question of law by order dated 24.05.2010. (i) Whether daily allowances earned by the Workmen can be constructed to be part of the salary in order to compute he precise amount of compensation? (ii) Whether Doctor can assess the loss of earning capacity of the injured at his whims/guess work? 3. The case of the respondent No. 1/claimant is that he was a labourer in a truck bearing registration No. AS-25-B-5870. He was under employment of respondent No. 2. On 01.04.2013, while the said truck was proceeding from Nagaon towards Doboka side for loading sand, at a place called Arjuntal on N.H. 36 at about 4:30 P.M, in order to avoid a scooterist who was coming from opposite side in a zig-zag manner, loss control of the vehicle, which fell down in a road side ditch. As a result of the accident, the respondent No. 1 sustained fracture injuries on his right wrist, injury of the back of the neck and abrasion over the left thigh. The respondent No. 1 was taken to Nagaon for treatment and the police of Nagaon P.S. registered a case vide G.D.E. No. 7 dated 01.04.2003. On receipt of information, the owner of the truck i.e. respondent No. 2 came to the place of occurrence and removed the damaged vehicle and also met him and, as such, claiming that notice u/s 10 of the Workmen’s Compensation Act was not required, the respondent No. 1 filed a claim petition seeking a compensation of Rs.1,50,000/- under Section 4(1)(c) of the Workmen’s Compensation Act. The present appellant appeared in the case and had filed their written statement. The respondent No. 2, the owner of the vehicle had also filed his written statement, admitting that the respondent No. 1 was his workmen and worked at a daily wages of Rs.100/-. The present appellant appeared in the case and had filed their written statement. The respondent No. 2, the owner of the vehicle had also filed his written statement, admitting that the respondent No. 1 was his workmen and worked at a daily wages of Rs.100/-. He had disclosed that the vehicle was duly insured with the appellant and the insurance was valid as on the date of the accident. 4. In support of his case, the respondent No. 1 examined himself as PW.1 and a Doctor as PW.2. He had proved the following documents, viz., Accident Information Report (Exbt.1), Prescriptions of the Doctor (Exbt.2, 4 and 5), X-Ray Report dated 02.04.2003 (Exbt.3) and Injury Report dated 24.08.2003 (Exbt.6). In his evidence the PW.1 reiterated what he had stated in the claim petition. In his cross-examination, he had stated that after the X-Ray was done, the Doctor had advised him to take another X-Ray. The Doctor was examined as PW.2 had deposed that on 01.04.2003, while the respondent No. 1 came to his clinic three injuries were found, (i) Pain and swelling over the right wrist joint, (ii) Pain over the back of the neck and (iii) abrasion 2” X ½” over the left thigh. As per the X-Ray done on 02.04.2003, the X-Ray report indicated fracture at the right hamet bone and the respondent No. 1 was advised to apply crepe bandage over the fractured area. It is stated that on 04.07.2003, the respondent No. 1 had complained that he was not able to move his hands freely. He was advised physiotherapy but on 28.08.2003, when he saw the injured again, he found that Osteo-arthritis had permanently set-in and therefore, the disability of the respondent No. 1 was certified at 25% and the reduction of earning capacity was assessed at 35%. He proved exhibits 2, 3, 4 and 6. 5. In his cross-examination, the PW.2 has stated that the X-Ray report did not indicate any fracture. He has also stated that the injury of respondent No. 1 did not heal under his treatment. It was also stated that on 03.05.2003, the respondent No. 1 was advised to visit an Orthopedic Doctor. He denied the suggestion that as the respondent No. 1 had got better, and that is why on 03.05.2003, he was not advised to undergo an X-Ray. It was also stated that on 03.05.2003, the respondent No. 1 was advised to visit an Orthopedic Doctor. He denied the suggestion that as the respondent No. 1 had got better, and that is why on 03.05.2003, he was not advised to undergo an X-Ray. In his cross examination he had also stated that as per the provisions of Workmen’s Compensation Act, in the right hand was amputated the loss of earning would be 20%. He had denied that he did not assess the loss of earning capacity without looking at the workmen’s Compensation Act. 6. The learned Senior counsel for the appellant submits that although the second Schedule to the Workmen’s Compensation Act does not contain the loss of earning capacity at 20% on amputation of the hand as answered by the PW.2, but assuming that he Doctor i.e. PW.2 is aware that the loss of earning capacity on amputation of the right hand was 20%, in the present case in hand, the assessment of loss of earning capacity of respondent No. 1 at 35% was not sustainable. It is further submitted that loss of earning capacity was assessed at 35% by Doctor without any admissible evidence as to the loss of earning capacity. It is further submitted that the loss of earning capacity must be assessed by taking into account the loss of income from any other work or employment which the respondent No. 2 could have undertaken. It is also submitted that in the present case, the X-Ray plate was not exhibited, without which the correctness of opinion of X-Ray report (Exbt.3) cannot be acceptable. 7. It is also submitted that in the present case, the claim petition was filed on 06.05.2003 and therefore, the injury report on 24.08.2003 (Exbt.6) came into existence after the case was filed and therefore, at the time of filing of this claim petition, there was nothing on record to show that the respondent No. 1 was entitled to any compensation on the ground that he had suffered any permanent disability. It is also submitted that the there was nothing on record to show that the respondent No. 1 suffered on-set of Osteo-arthritis because no X-Ray was done subsequently, and the Doctor (PW.2) did not record how he arrived that the finding of on-set of Osteo-arthritis while issuing the certificate (Exbt.6). It is also submitted that the there was nothing on record to show that the respondent No. 1 suffered on-set of Osteo-arthritis because no X-Ray was done subsequently, and the Doctor (PW.2) did not record how he arrived that the finding of on-set of Osteo-arthritis while issuing the certificate (Exbt.6). The learned Senior counsel for the appellant further doubts the correctness of the X-Ray report (Exbt.3) as well as the injury report (Exbt.6) on the ground that if the respondent No. 1 suffered a fracture of the writ joint, the Doctor treating him (PW.2) did not apply any Plaster of Paris cast to enable the wrist joint to heal and therefore, the learned Senior counsel for the appellant prays for dismissal of the case. 8. In the present case, the respondent No. 1/claimant has not submitted any X-Ray plate. In the opinion of this Court, X-Ray plate is the primary evidence, without which an X-Ray report, being an opinion of the Doctor of his reading of the X-Ray plate, is merely a secondary evidence of the contents of the X-Ray plate which is not admissible without the primary evidence. Moreover, on the date of the filing of the claim petition on 06.05.2003, there is no document to indicate that the respondent No. 1 had suffered any permanent disability. The injury report (Exbt. 6) has came into the existence after filing of the claim petition and, as such, the said document was not on record at the time of the filing of the claim petition. As per the requirement of Rule 21(1) of the Workmen’s Compensation Rules, if an application for relief is based upon the document, it is required that such document shall be appended to the application. On perusal of the records of the claim petition, there is no order on record that a leave of the learned Commissioner, Workmen’s Compensation was taken for introducing the said document in evidence for first time. As per the provisions of sub-rule (3) of Rule 21, document which is not produced within the time specified in sub-rule (1) or (2), is not to be received for admissible in evidence without the sanction of the Commissioner. 9. Moreover, the Doctor (PW.2), who had diagnosed Osteo-arthritis has MBBS Doctor and is not the Orthopedic Surgeon. As per the provisions of sub-rule (3) of Rule 21, document which is not produced within the time specified in sub-rule (1) or (2), is not to be received for admissible in evidence without the sanction of the Commissioner. 9. Moreover, the Doctor (PW.2), who had diagnosed Osteo-arthritis has MBBS Doctor and is not the Orthopedic Surgeon. He has not recorded in the injury report how he was able to diagnosis onset of Osteo-arthritis in evidence of the X-Ray and in clinical examination his evidence, which led to the diagnosis of Osteo-arthritis is not reflected. Therefore, this Court, is unable to accept the finding recorded by the learned Commissioner that the claimant had succeeded to prove his case by both oral and documentary evidence and that he had proved physical disablement or loss of earning capacity. There is no finding by the learned Commissioner, that the respondent No. 1 had reducing his earning capacity, in any other employment which he could have undertaken. 10. The materials available on the internet on wrist osteoarthritis is as follows: “Wrist osteoarthritis is a group of mechanical abnormalities resulting in joint destruction, which can occur in the wrist. These abnormalities include degeneration of cartilage and hypertrophic bone changes, which can lead to pain, swelling and loss of function. Osteoarthritis of the wrist is one of the most common conditions seen by hand surgeons. Osteoarthritis of the wrist can be idiopathic, but it is mostly seen as a post-traumatic condition. There are different types of post-traumatic osteoarthritis. Scapholunate advanced collapse (SLAC) is the most common form, followed by Scaphoid Non-union Advanced collapse (SNAC). Other post-traumatic causes such as intra-articular fractures of the distal radius or ulna can also lead to wrist osteoarthritis, but are less common. Stages Post-traumatic osteoarthritis can be classified into four stages. These stages are similar between SLAC and SNAC wrists. Each stage has a different treatment. Stage I: the osteoarthritis is only localized in the distal scaphoid and radial styloid. Stage II: the osteoarthritis is localized in the entire radioscaphoid joint. Stage III: the osteoarthritis is localized in the entire radioscaphoid joint with involvement of the capitolunate joint. Stage IV: the osteoarthritis is located in the entire radiocarpal joint and in the intercarpal joints. It also may involve the distal radio-ulnar joint (DRUJ). Stage II: the osteoarthritis is localized in the entire radioscaphoid joint. Stage III: the osteoarthritis is localized in the entire radioscaphoid joint with involvement of the capitolunate joint. Stage IV: the osteoarthritis is located in the entire radiocarpal joint and in the intercarpal joints. It also may involve the distal radio-ulnar joint (DRUJ). In order to diagnose a SLAC wrist one may need a posterior anterior (PA) view X-ray, a lateral view X-ray and a fist view X-ray. The fist X-ray is often made if there is no convincing Terry Thomas sign. A fist X-ray of a scapholunate ligament rupture will show a descending capitate. Making a fist will give pressure at the capitate, which will descend if there is a rupture in the scapholunate ligament. SNAC In order to diagnose a SNAC wrist you need a PA view X-ray and a lateral view X-ray. As in SLAC, the lateral view X-ray is performed to see if there is a DISI. Computed tomography (CT) or Magnetic Resonance Imaging (MRI) are rarely used to diagnose SNAC or SLAC wrist osteoarthritis because there is no additional value. Also, these techniques are much more expensive than a standard X-ray. CT or MRI may be used if there is a strong suspicion for another underlying pathology or disease.” Perhaps, because of various parameters which has to be considered by a Court/Tribunal is dealing with percentage of disability, the Hon’ble Supreme Court of India, in the case of Raj Kumar Vs. Ajay Kumar & Anr., (2011) 1 SCC 343 : (2010) 0 Supreme (SC) 991, has opined that while dealing with personal injury case, the Tribunal should preferably equip itself with a Medical Dictionary and a Hand Book for Evaluation of Permanent Physical Impairment for Orthopedic Surgeon, prepared by American Academy of Orthopedic Surgeons or its Indian equivalent. 11. In view of the discussion above, the second substantial question of law No. (ii) as formulated by this Court is answered by holding that the assessment of permanent disability as well as the loss of earning capacity was not correctly assessed by the Doctor (PW.2). The injury report (Exbt.6) did not form a part of the claim petition and therefore, the same ought not to have been considered in the absence of supporting X-Ray plate showing the fracture as was opined in the X-Ray report (Exbt.3). The injury report (Exbt.6) did not form a part of the claim petition and therefore, the same ought not to have been considered in the absence of supporting X-Ray plate showing the fracture as was opined in the X-Ray report (Exbt.3). Moreover, as already held above, clinical finding of the Doctor reading to his diagnosis of the on-set of Osteo-arthritis is not reflected in the injury report (Exbt.6). Therefore, the inevitable conclusion of this Court is that the assessment of loss of earning capacity was only a guess work by the Doctor and the substantial question of law No. (ii) is decided in the negative and in favour of the appellant. 12. As regards the substantial question of law No. (i), with his usual fairness, the learned Senior counsel for the appellant had submitted that the issue as to whether the daily allowance earned by the workmen can be construed to be part of the salary for the purpose of computing compensation has already been well settled by this Court in various judgments on the matter and, as such, he did not press this question. This correct and fair stand of the learned Senior counsel for the appellant is appreciated. Therefore, the first substantial question of law is decided in favour of the respondent No. 1 and against the appellant by holding that the daily allowance earned by the workmen constitutes a part of the salary for the purposes of computation of compensation. 13. However, in view of the decision rendered in the second substantial question of law, the appeal is liable to be allowed. 14. In view of the ratio laid down in the case of Golla Ranjanna Vs. Divisional Manager, (2017) 1 SCC 45 , where the Hon’ble Apex Court has held that the Commissioner is the last authority of facts, this Court is not inclined to opine on the loss of earning capacity of the respondent No. 1 or on the extent of disability, if any suffered by the respondent No. 1. Hence, in view the ratio of the case of Golla Ranjanna (supra), this Court is inclined to remand the matter back for fresh decision before the learned Commissioner, Workmen’s Compensation, Nagaon. The remand is as per the provisions of Order XLI Rule 23-A CPC. The learned Commissioner shall permit the parties to lead their evidence to prove their respective stands. Hence, in view the ratio of the case of Golla Ranjanna (supra), this Court is inclined to remand the matter back for fresh decision before the learned Commissioner, Workmen’s Compensation, Nagaon. The remand is as per the provisions of Order XLI Rule 23-A CPC. The learned Commissioner shall permit the parties to lead their evidence to prove their respective stands. Needles to mention that the learned Commissioner shall not be prejudiced/influenced by the observation made above. 15. As this appeal is allowed, the appellant is not required to make any further deposit in the awarded sum. The 50% of the awarded sum already disbursed to the respondent No. 1 shall be subject to outcome of the fresh trial. 16. The appellant, who are duly represented by their learned Senior counsel and engaged counsel herein, is directed to appear before the learned Commissioner, Workmen’s Compensation, Nagaon on 07.12.2017 and by producing the certified copy of this order, shall seek further instruction from the said learned Commissioner. 17. This appeal stands allowed. There shall be no order as to costs. 18. Let the LCR be returned forthwith.