Research › Search › Judgment

Gauhati High Court · body

2017 DIGILAW 276 (GAU)

United India Insurance Co. Ltd. v. Ratneswar Das

2017-03-02

KALYAN RAI SURANA

body2017
JUDGMENT & ORDER : 1. Heard Mr. R. Goswami, learned counsel for the appellant. None appears on call on behalf of the respondents. As per the order of this Court dated 13.12.2016, it was recorded that earlier counsel for respondent No.1 had withdrawn from the case and the Court had issued notice to the respondent No.1 to make alternative arrangement. But despite due service of notice on respondent No.1, no alternative step was taken. Hence, the matter is heard ex-parte against the respondents. 2. This appeal under Section 30 of the Workmen’s Compensation Act, 1923 (now Employees Compensation Act, 1923) is directed against the judgment and order dated 24/05/2007 passed by the learned Commissioner, Workmen’s compensation, Kamrup in W.C. Case No. 249 of 2003. The appeal was admitted on the following substantial questions of law: “1. Whether an assessment of loss of earning capacity, as a result of non-specified injury, which did not take into consideration the profession of the workman and the functions which he has to perform in the course of his duty, is an assessment of loss of earning capacity as per provisions of the W.C. Act, 1923. 2. Whether the appellants, as Insurers, are liable for compensation for non-specified injury if the assessment of loss of earning capacity, allegedly suffered by a workman, was made without taking into consideration the jobs/functions performed by the workman in the course of his duty. 3. Whether the Commissioner for Workmen’s Compensation under Workmen’s Compensation Act, 1923 can award interest from the date of the accident in the case of a non-scheduled injury when the compensation could be determined by the Commissioner for Workmen’s Compensation only after the assessment of the loss of earning capacity is made by a qualified medical practitioner. 4. Whether the Commissioner for Workmen’s Compensation under Workmen’s Compensation Act, 1923 can award interest from the date of the accident in the case of a non-scheduled injury when the claimant completes service of notice as belatedly as two and a half years after the accident without assigning any reasons for the delay. 5. Whether the appellants who are the Insurer are liable for compensation if the findings of fact by the Commissioner for Workmen’s Compensation as regards the permanent disability as well as the alleged loss of earning capacity suffer from perversity.” 3. 5. Whether the appellants who are the Insurer are liable for compensation if the findings of fact by the Commissioner for Workmen’s Compensation as regards the permanent disability as well as the alleged loss of earning capacity suffer from perversity.” 3. The case, in brief, is that the respondent No. 1 was an employee of the respondent No.2 as a conductor of the bus bearing Registration No. AS-25-A–7095 which met with an accident on 07/01/2003 at about 5-00 A.M. while the vehicle was proceeding from Barpeta towards Guwahati at Bamuna Bridge on Barpeta– Bhawanipur PWD Road. As a result of the accident, the respondent No. 1 sustained injuries and he was admitted to Barpeta Civil Hospital wherein he was given treatment. The respondent No. 1 filed a plaint alleging that due to the injuries suffered in the accident, he became permanently disabled resulting in his inability to perform his job. As per the claim petition, the said vehicle, which was involved in the incident was having a valid insurance policy of the appellant. 4. The respondent No.1 exhibited Doctors’ prescription as Exht. 1 & 2 and X-ray report as Exht. 3, X-ray Plate as Exht. 4, Medical Certificate as Exht. 5, Police Report as Exht.6, photocopy of Insurance Policy as Exht. 7, School Certificate as Exht. 8 and Employers Certificate as Exht. 9. The respondent No.1 was aged about 33 years at the time of the accident and he was receiving salary of Rs. 4,200/- per month. As per the evidence rendered by the PW.1, as a result of the accident, he sustained fractured injury on the right leg and injuries on peritial region of scalp, chest, waist and other parts of the body. However, as per the X-ray report (Exht. 3), there was a comminuted fracture on the right tibia. As per the evidence of PW.1, he is unable to walk properly and he could not continue to do the job of conductor and his employer i.e. respondent No. 2 already discharged him from his duties. In course of cross examination by the appellant’s side, the respondent No.1 could not point out on which part of the leg there was a fracture and that he had stated that the plaster cast was from above to the ankle to above the knee. In course of cross examination by the appellant’s side, the respondent No.1 could not point out on which part of the leg there was a fracture and that he had stated that the plaster cast was from above to the ankle to above the knee. During the cross examination, he has categorically admitted that he was not examined by the Doctor and his brother had obtained the medical certificate (Exht. 5). He also did not know when the certificate was issued and it was his categorical admission that he did not obtain Exht.5 himself. He also did not know who had made the overwriting on the date given below the signature in the certificate of the Doctor. As per the evidence the Doctor i.e. PW 2, he opined that the respondent No. 1 could not regain normal strength as before due to the fracture. He further admitted that in the Exht. 4 (X-ray Plate of the respondent No. 1) there is no way of confirming that the said Exht. 4 was that of the respondent No.1. He further stated that there was no identification mark in the X-ray Plate of the respondent No.1 and stated that there was no number in the X-ray Plate, which should have been given in the Exht. 4. On presumption he stated that the Exht.4 was that of the respondent No. 4. In cross examination, PW.2 stated contrary to the evidence of PW.1 (i.e. the victim) that he had examined the respondent No.1 at the time of issuing of Exht. 5. He had, however, stated that he was not aware what was the profession of the respondent No.1 and what was his professional functions. He was not fully aware of the provisions of Workmen’s Compensation Act. He further stated in his cross examination that loss of earning capacity deferred from professional functions of every person and that Exht. 5 was issued by him without taking into consideration of the job or professional functions of the respondent No. 1. He further stated that he did not advise for second X-ray to the respondent No.1. He further admitted in his cross examination that for this type of fracture i.e. comminuted fracture, which was a close fracture and for such fracture, plaster cast is applied to the bottom of the sole. He further stated that he did not advise for second X-ray to the respondent No.1. He further admitted in his cross examination that for this type of fracture i.e. comminuted fracture, which was a close fracture and for such fracture, plaster cast is applied to the bottom of the sole. Thus, the evidence of PW.2 is in stark contrast to the evidence of PW.1, who had stated that plaster cast was from above the ankle to above the knee. This leads to an impression that the claim was not genuine, otherwise PW.1 can never forget on which part of leg there was a fracture. 5. It is on the basis of this evidence of claimant’s side, the learned Commissioner, Workmen’s Compensation had adjudicated the matter. The learned Commissioner held that the examination of an injured person and the assessment of loss of earning capacity of the injured being a matter of medical expert, mere suggestion or objection with regard to such matter is ineffective unless it is proved otherwise by a qualified medical practitioner. As per the School Certificate (Exht. 8), the age of the claimant would be 32 years at the time of the accident and the learned Commissioner also satisfied with the proof that respondent No.1/ claimant was earning a salary Rs. 4,200/- per month at the relevant time and hence, the monthly wage was deemed at Rs. 4000/- per month. In terms of the evidence adduced by the PWs, the loss of earning was accepted and amount of compensation was calculated as follows:- “60% of Rs. 4000 x 203.85 x 40% = Rs.1,95,696/-“ The learned Commissioner directed the appellant to pay the said compensation to the respondent No.1 on account of the injuries suffered by him in the accident of the vehicle which had a valid policy with the appellant. The amount of compensation was directed to be deposited within 30 days from the date of receipt of the order, failing which compensation is ordered to carry the interest at the rate of 9% from the date of the accident till the date of deposit. 6. On reassessment of the evidence on record, it is seen that PW.2 i.e. the Dr. Suresh Chandra Sarma, was a qualified medical practitioner, who had issued Exht. 5. 6. On reassessment of the evidence on record, it is seen that PW.2 i.e. the Dr. Suresh Chandra Sarma, was a qualified medical practitioner, who had issued Exht. 5. As per the statement made by the PW.2 during his cross examination, who had stated he examined the claimant on 10/09/2009 but as per the entries made in Exht.5, the date and place of examination was mentioned as 07/01/2010 at Barpeta Civil Hospital. The second infirmity in the said Exht.5 is that as per the statement of the respondent No.1, in his cross examination, the plaster cast was applied from above the ankle to above the knee. However as per the statement made by PW.2 in cross examination, it is stated that in this type of fracture plaster cast is applied to the bottom of the sole. The third reason in discarding the said Exht. 5 is that the respondent No.1, as PW1 had made a clear admission that he did not obtain the Medical Certificate (Exht. 5) himself, but the same was obtained by his elder brother and that he was not examined by the Doctor at the time of issuing the certificate and he also did not know when the certificate was issued. Hence, Exht.5 cannot be accepted as an admissible evidence. 7. In view of above and considering the fact that in the cross-examination of PW.2 where he had admitted that he is presuming that X-ray Plate (Exht.4) would be that of respondent No.1, then the X-ray Plate (Exht.4) cannot be accepted as an admissible evidence about the fracture suffered by respondent No.1/claimant. Accordingly, this Court is of the view that the learned Commissioner erred in law in accepting Exht.4 & Exht.5 to be the basis for passing the impugned judgment and award. 8. Learned counsel for the appellant has referred to the explanation (ii) appended to Sub-Section -C of Section 4 of the Employees Compensation Act, 1923 to project that in case of an injury not specified in Schedule-I, the assessment of compensation is required to be done in proportion to the loss of earning capacity as assessed by a qualified medical practitioner in case of disablement is permanent caused by the injuries. Therefore, under explanation-(ii), it was incumbent on part of the qualified medical practitioner i.e. PW.2 to have due regard to the percentage of loss of earning capacity in relation to different injuries specified in Schedule-I appended to the Employees Compensation Act, 1923. However, from the evidence of PW.2, it is clear that PW.2 was not aware of the provisions of the Compensation Act while issuing the certificate (Exht.5). 9. Learned counsel for the appellant has also relied on Entry at Sl. No.20 of Part-II of Schedule-I appended to the Employees Compensation Act, 1923 to project that even under the seriousness of disablement arising out of amputation below knee with stump exceeding (8.89 cms) but not exceeding (12.70 cms), then also the loss of percentage of earning capacity is taken to be 50% and therefore, in respect of the non-scheduled injuries of comminuted fracture in the nature of close fracture cannot entitle the respondent No.1 to the loss of earning capacity of 40%, which is contrary to the prescription under the Employees Compensation Act, 1923, specially under section 4(1)(C)(ii) of the said Act. 10. In addition to the aforesaid deficiencies and un-sustainability of the Exht.4 and Exht.5, the learned counsel for the appellant has also referred to the case of National Insurance Company Limited vs. Bimal Nath and others, 2009 (1) GLT 370 specifically relied on paragraphs-22,23 and 24 thereof to project that in order to constitute “temporary partial disablement” arising out of non-scheduled injuries, the concerned workman is required to prove that the disablement suffered has incapacitated him in performing any other employment which he was capable to undertake at the time of accident and acknowledging which he was engaging at the time of accident. In the said judgment, it was further clarified that employment did not mean all sorts of employment but it included such employment which the workman was capable of do at the time of accident pending on the nature of skill posses by the workman and the skill required for the purpose of said employment. 11. In further support of his contention, the learned counsel for the appellant has referred to Section 2(1)(l) of the Act defining ‘temporary partial disablement’, ‘permanent partial disablement’ and ‘total partial disablement’ to show the manner of assessing the loss in those 3 heads are different. 12. 11. In further support of his contention, the learned counsel for the appellant has referred to Section 2(1)(l) of the Act defining ‘temporary partial disablement’, ‘permanent partial disablement’ and ‘total partial disablement’ to show the manner of assessing the loss in those 3 heads are different. 12. In view of above, the first substantial question of law is decided in negative in favour of the appellant by holding that the assessment of loss of earning capacity in the present case without taking into consideration the profession of the workman, such assessment is vitiated. 13. As the learned Commissioner, Workmen Compensation did not take into consideration the job which was performed by the workman in course of employment or such employer/the respondent No.1 could have engaged him, the second substantial question of law is also decided in negative and in favour of the appellant by holding that the view of qualified medical practitioner was required under the Act to take into consideration the provisions of Section 4(1)(C) for assessing the loss of earning capacity, which having not been done, the appellant is not liable to compensate the respondent No.1. 14. In view of the finding in the aforesaid two substantial questions of law, as a fall out or a corollary, the substantial questions of law No.3,4 & 5 also have to be decided in favour of the appellant and against the respondent No.1/claimant. 15. As a result, the appeal is allowed. Consequently, the impugned judgment and award dated 24.5.2007 passed by the learned Commissioner, Workmen Compensation, Kamrup in W.C. Case No. 249/2003 is hereby set aside. 16. The appellant is entitled to withdraw the amount deposited before the court of learned Commissioner, Workmen Compensation, if not disbursed already to the respondent No.1. However, if the respondent No.1 has withdrawn any amount in the meantime from the deposit made by the appellant, it would be open for the appellant to take appropriate measures for recovery of the same from the respondent No.1. 17. Return back the LCR forthwith. 18. There shall be no order as to costs.