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2017 DIGILAW 1438 (GAU)

United India Insurance Co. v. Shahidul Islam

2017-11-15

KALYAN RAI SURANA

body2017
JUDGMENT : 1. Heard Ms. S. Roy, learned counsel for the appellant as well as Mr. S. Ahmed, learned counsel for the respondent No. 1-claimant. 2. This appeal under section 30 of the Workmen's Compensation Act, 1923 has been filed against the judgment and award dated 9.9.2010 passed by the learned Commissioner, Workmen's Compensation, Barpeta in W.C. Case No. 14/2009. The appeal has been admitted for hearing on the following substantial question of law by order dated 3.2.2012. (i) Whether the learned Commissioner, Workmen's Compensation was right in determining the compensation under section 4(1)(c) when the evidence of injuries are not scheduled without ascertaining the compensation under section 4(1)(d) of the Workmen's Compensation Act, 1923 in compliance of the provision of section 2(g) of the said Act? (ii) Whether the learned Commissioner, Workmen's Compensation was right in sending liability to pay interest on the insurer? 3. The case projected before the learned Commissioner was that the respondent No. 1 herein was an employee of the respondent No. 2 and was employed as a driver in vehicle bearing registration No. AS-15/A-2756. On 18.5.2008, while the said vehicle was proceeding from Sukmanah Bazar towards Howly, it met with an accident at Iterbhita at N.H. 31 at about 10:50 a.m. As a result of the accident, the respondent No. 1 suffered grievous injuries, i.e., the fracture of left forearm. He was treated by a Doctor at Howly. The said accident was registered at Howly O.P. vide GDE No. 442 dated 18.5.2008. The respondent No. 1 claimed that he was about 20 years of age at the time of the accident and he used to receive monthly salary at the rate of 4,500 per month. It was also projected that the respondent No. 2 got the information of the accident on the same date, but he did not take any initiative to compensate the respondent No.1. The claim petition was filed seeking compensation of Rs.5,00,000 with interest @ 12%. 4. The appellant as well as the respondent No. 2 appeared and contested the said claim petition by filing their respective written statement. The respondent No. 2 accepted that the respondent No. 1 was his employed driver and admitted that he was paying monthly salary of Rs.4,500 per month. He also disclosed that the vehicle was covered by valid insurance policy covering the risk of the driver. The respondent No. 2 accepted that the respondent No. 1 was his employed driver and admitted that he was paying monthly salary of Rs.4,500 per month. He also disclosed that the vehicle was covered by valid insurance policy covering the risk of the driver. The appellant in their written statement took the usual plea of non-maintainability, shifting the onus of accident and the injury on the respondent No. 1. In support of their claim, the respondent No. 1 examined himself as PW 1 and the Doctor as PW 2. The respondent No. 1 exhibited the following documents, viz., Police Report (Ext. 1), Medical Certificate (Ext. 2), Prescriptions (Exts. 3 and 4), X-Ray Report (Ext. 5), X-Ray Plate (Ext. 6) and Driving Licence (Ext. 7). The P.W. 2, i.e., Doctor had stated that when he had examined respondent No. 1, the respondent No. 1 was suffering from pain and tenderness over right forearm and the X-Ray shown fracture and the shaft of left radius at mid part and he also suffered contrasion on the forehead. The Doctor (P.W. 2) opined that the injury No. 1 was grievous and that the injured had suffered permanent partial disability. He had stated in his medical certificate (Ext. 2) that the respondent No. 1 had suffered 40% disability and the loss of earning capacity was assessed by him at 35%. 5. The appellant did not lead any evidence in the case. The learned Commissioner on the perusal of the materials on record, accepted the averments of the respondent No. 1 that at the time of accident, he was 20 years of age, that his salary was Rs. 4,500 per month and the disability of respondent No. 1 was 40% and accepted the of loss of earning capacity by 35%. The learned Commissioner had computed the compensation as follows: 60. % × Rs. 4000 × 2240 × 35% = Rs. 1,88,160 6. The appellant was directed to deposit the awarded sum within 30 days from the date of the receipt of the order and in default the award was to carry an interest @ 12% per annum from one month after the date of order till such amount was deposited. 7. The learned counsel for the appellant has submitted that the injuries which was suffered by the respondent No.1 were not scheduled injuries as provided in the Workmen's Compensation Act, 1923. 7. The learned counsel for the appellant has submitted that the injuries which was suffered by the respondent No.1 were not scheduled injuries as provided in the Workmen's Compensation Act, 1923. It is submitted that the assessment of disability and the loss of earning capacity was in total disregard in the injury described in Schedule-I appended to the Workmen's Compensation Act. It is submitted that for far severe disability like loss of three fingers, loss of thumb, loss of all toes of both feet and loss of vision of one eye, etc., the loss of earning capacity is provided at 30% and, as such, there was no materials before the learned Commissioner to accept the assessment made by the Doctor (P.W. 2) to award the compensation which is on the higher side. It is further submitted that the respondent No. 1 had renewed his driving licence which was evident from Ext. 7 and, as such, the respondent No. 1 could not prove that he has suffered any disability in driving the vehicle. It is further submitted that this was not a case where the respondent No. 1 had suffered permanent partial disability, but the injury complained of indicated that the disability which the respondent No. 1 had suffered was temporary partial disability within the meaning of section 4(1)(d) of the Workmen's Compensation Act. It is further submitted that the total compensation awarded to the respondent No. 1 was on the higher side and, therefore, the impugned judgment and award is liable to be interfered with. 8. Per-contra, the learned counsel for the respondent No. 1 has referred to the cross-examination of the PWs and submits that the evidence of the PWs 1 and 2 could not be demolished in course of cross-examination and, therefore, he has argued in support of the impugned judgment and award. 9. Considered the submissions made by the learned counsel for both side and perused the materials available on record. 10. On perusal of the evidence tendered by the PWs 1 and 2, there was no suggestion to the P.W. 1, questioning the renewal of driving licence. There was no attempt to controvert the evidence of PWs 1 and 2 by calling for the relevant records from the DTO concerned to demonstrate that any false declaration were submitted before the said authority for renewal of the driving licnece of the respondent No. 1. There was no attempt to controvert the evidence of PWs 1 and 2 by calling for the relevant records from the DTO concerned to demonstrate that any false declaration were submitted before the said authority for renewal of the driving licnece of the respondent No. 1. Therefore, this Court finds that there is no infirmity in the finding recorded by the learned Commissioner that merely of renewal of driving licnece does not mean that there was no such disability as certified by the Doctor. Under the scheme of the Workmen's Compensation Act, the requirement of law is that a registered medical practitioner is required to certify the percentage of disability and the loss of earning capacity of the claimant. In the present case in hand, neither the PW 1 or the PW 2 (Doctor) were cross-examined on the point of fact as to whether there was any loss of earning by the respondent No. 1 in any other employment which was capable of carrying out. In the absence of any cross-examination on the point, there is no material before this court to presume that the respondent No. 1 had not suffered loss of earning capacity in every employment which was capable on undertaking. In the absence of cross-examination on the point, there is no material before this court to set aside the finding recorded by the learned Commissioner, thereby assessing the disability of the respondent No. 1 at 40% and the loss of earning capacity at 35%. 11. On a perusal of the cross-examination of the Doctor (PW 2), there was no cross-examination on the point as to how or on what basis he had given an opinion of disability of the respondent No. 1 at 40% and the loss of income by 35%. Therefore, it gives rise to presumption that the appellant had accepted the certificate (Ext. 2) to be correct as its correctness was not questioned by the appellant by way of cross-examination. In view of the well settled position of law that the assessment of disability and loss of income must be certified by a qualified medical practitioner as provided in the Workmen's Compensation Act, 1923. 2) to be correct as its correctness was not questioned by the appellant by way of cross-examination. In view of the well settled position of law that the assessment of disability and loss of income must be certified by a qualified medical practitioner as provided in the Workmen's Compensation Act, 1923. As the said finding could not be successfully demolished by way of cross-examination, the finding of fact recorded by the learned Tribunal cannot be interfered with by this Court by substituting its own view over the reasoned order given by the learned Commissioner. In this case in hand, the learned Commissioner did not determine the compensation of his own. He had relied in the contents of the injury report (Ext. 2) to arrive at a finding that the respondent No. 1 had suffered permanent partial disability within the meaning of section 4(1)(c)(ii) of the Workmen's Compensation Act. There is no material before this Court so as to convince this Court that the disability suffered by the respondent No. 1 is covered by the meaning of section 4(1)(d) of the Workmen's Compensation Act. 12. In that view of the matter, the substantial question of law No. (i) is answered in the affirmative and against the appellant by holding that the learned Commissioner was right in determining compensation under section 4(1)(c)(ii) of the Workmen's Compensation Act, 1923. 13. In connection with the substantial question of law No. (ii) as formulated by this court, it appears that the appellant had accepted in the written statement that the offending vehicle was covered by the insurance policy. The appellant had merely shifted the responsibility or the onus of on the respondent No. 1. It is surprising that in the relevant records like claim petition, written statement, evidence of the claimant side and the judgment there is even no reflection of the type of vehicle which was involved in the accident. It is left for the appellant's authorities to decide whether the appellant's approach while conducting the trial was casual or not. Therefore, the only material before this court is that the offending vehicle had a valid insurance and that fact could not be disputed by the appellant as they did not lead any evidence to counter the evidence of the claimant's side. Therefore, the only material before this court is that the offending vehicle had a valid insurance and that fact could not be disputed by the appellant as they did not lead any evidence to counter the evidence of the claimant's side. In view of discussion above, the substantial question of law No. (ii) is answered in the affirmative and against the appellant by holding that the learned Commissioner was right in imposing the liability of paying interest on the appellant because as per the judgment impugned herein, the onus of paying interest had commenced only after the lapse of one month from the date of the order. No infirmity found in the said finding. 14. In view of above, the appeal fails and the same is dismissed. It would be open for the respondent No. 1 to enforce the award, if the appellant does not satisfy the award within outer period of one month from today. 15. There shall be no order as to cost.