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2017 DIGILAW 439 (GAU)

Oriental Insurance Co. Ltd. v. Md. Safiqul Islam

2017-04-07

KALYAN RAI SURANA

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JUDGMENT AND ORDER : Heard Mr. Siddhanta Dutta, learned counsel for the appellant. None appears on call for the respondent No. 1 despite due service of notice. 2. By filing this appeal under Section 30 of the Workmen’s Compensation Act, 1923 (now called as Employees’ Compensation Act, 1923 and hereinafter referred to as “the Act”), the appellant has challenged the judgment and award dated 16.02.2009 passed by the learned Commissioner, Workmen’s Compensation, Nagaon in N.W.C. No. 118/2006 awarding a compensation of Rs.1,59,386/- with 12% interest from the date of the award till realization. The present appeal was admitted by order dated 01.07.2009 on the following substantial questions of law: (i) Whether the finding of the learned Commissioner that the injured incurred permanent disability is in consonance with the material on record? (ii) Whether the opinion of the expert without any basis can have any evidentiary value? 3. The respondent No. 1 is the claimant before the learned Commissioner Workmen’s Compensation, Nagaon. The case of the respondent No. 1 in brief before the said learned Commissioner was that he was engaged as labour in truck bearing registration No. AS-01-J-4021, drawing monthly salary of Rs. 4000/- and daily allowances of Rs. 20/- per day. On 22.06.2006 while on duty, the truck was proceeding from Jorhat to Guwahati loaded with tea boxes, it met with an accident at by turning turtle on the road side (River Bank) at about 3:45 AM. As a result of the accident, the respondent No. 1 sustained grievous injury on his body including fracture injury to upper third of right tibia and fibula. As per his evidence, he was rescued and the rest of the persons in the said vehicle and were taken by the police to B.P. Civil Hospital. A case was registered in Nagaon P.S under GDE No. 409 dated 22.06.2006. 4. The x-ray of the respondent No.1 was taken at the said B.P. Hospital and his right leg was plastered for the fracture injury. At the time of accident the driver had a valid license and the truck is duly ensured with the appellant. 5. The respondent No. 1 examined himself as the PW.1. In his examination-in-chief he stated that along with him the other person, namely, Joynal Abedin, Safar Ali, Rasid Ali and Kam Singh wherein the vehicle. At the time of accident the driver had a valid license and the truck is duly ensured with the appellant. 5. The respondent No. 1 examined himself as the PW.1. In his examination-in-chief he stated that along with him the other person, namely, Joynal Abedin, Safar Ali, Rasid Ali and Kam Singh wherein the vehicle. It was their job to load and unload goods and while the vehicle was coming from the Jorhat to Guwahati with tea chests loaded therein. He stated that at place of Chakarigaon, a truck coming from behind tried to overtake their truck and at that time a cow came in front of the truck and the driver, namely, Sanjay applied breaks, the truck overturned and fell into the road side river. After the incident, the police rescued him and others from the place of accident and took them to the Nagaon Civil Hospital, where Dr. Nath administered injection to him and asked to get his x-ray done. After x-ray the doctor plastered his right leg, which was taken of after one and half month and he took treatment from the said Dr. Nath for about a year. He stated that he suffered from pain in the right leg, because of which he cannot work as a labourer in any vehicle. He was advised by the doctor to go to Guwahati but he could not do so for want of money. 6. As per the deposition of the Doctor (PW. 2), he found the Respondent No.1 to have suffered a fracture of upper tibia and fibula of the right leg and then the respondent No.1 was advised to go to an orthopedic surgeon, but he was not willing to go and, as such, on his request, the PW-2 had plastered the right leg of the respondent No.1 and he was asked to retain the plaster for 12 weeks and when he came back after 3 months, the plaster was cut and was advised to undergo physiotherapy. Even after that the respondent No.1 visited his chamber and he prescribed medicines and gave counseling. He last examined Respondent No.1 on 05.10.2007 and on his request, he issued a certificate. On the day he examined the respondent No.1, he found him suffering from pain and stiffness in the right knee and ankle due to osteoarthritis, which would cause him trouble and walking and also doing works as before. He last examined Respondent No.1 on 05.10.2007 and on his request, he issued a certificate. On the day he examined the respondent No.1, he found him suffering from pain and stiffness in the right knee and ankle due to osteoarthritis, which would cause him trouble and walking and also doing works as before. He opined that the same would cause 25% disablement to the respondent No.1 and from working as before, which would reduce his earning by 40%. He also opined that the disablement was permanent. 7. It appears that no worthwhile cross examination was done in respect of the PW-2. It would be relevant to narrate the free-hand English translation of the cross examination of PW-2, which is as follows:- “The patient was not brought on police requisition. I had issued the disablement certificate in favour of him only after examining everything. He had been advised to take physiotherapy and also visit the GMCH. I cannot say if he followed my advice or not. It is not true that his injuries were not critical, or that I am in no way authorized to issue Ext.4 in his name.” 7. On perusal of various exhibits proved by the respondent No.1, it appears that Ext.2 is a report dated 23.06.2006, indicating that there was a fracture in upper tibia and fibula of right leg. Ext.3 is the report dated 29.07.2006 indicating that old healing fractures are seen in upper 3rd of tibia and fibula and the ankle joint is …. (illegible), but this appears to be contradictory to entry made in Ext.2, where there is no report in respect of ankle joint and there is no statement by the respondent No.1 that he had any injury in the right ankle. Moreover, the respondent No.1 has not proved any prescription or medical advice slip for the said date of 29.07.2006. There are also major contradictions in the statement of PW-1 (Respondent No.1) and PW-2 as regards the time when plaster of respondent No.1 was removed because as per the evidence-in-chief of the doctor (PW-2) as well as from Ext.5, the respondent No.1 was advised to keep the plaster for 12 weeks and as the evidence of the doctor, the said plaster was removed on 20.09.2006, but the respondent No.1 i.e. PW-1 categorically states that his plaster was removed after 11/2 months (i.e. 6 weeks). Therefore, there is a missing link between removal of plaster allegedly after 6 weeks and re-removal of plaster after 12 weeks. Therefore, the evidence of either of PW-1 or PW-2 is unbelievable or there is a possibility that the respondent No.1 got his plaster re-done somewhere else for obtaining medical certificate (Ext.4) from PW-2 so as to create evidence in this case. As per Ext.7, respondent No.1 was advised X-Ray on 17.07.2007, but the said X-Ray has been withheld for reason best known to the respondent No.1. There is no mention in Ext.2 i.e. X Ray report dated 23.06.2006 and in Ext.3, i.e. X Ray report dated 29.07.2006 that the respondent No.1 was suffering from “osteoarthritis” and clinical finding of the doctor i.e. PW-2 is not recorded in any of his prescriptions, as such, the said finding recorded in Ext.4 dated 05.10.2007 is held to be without any factual basis because there does not appear to be any prescriptions or advice by the doctor for giving treatment of osteoarthritis to the respondent No.1. More importantly, the respondent No.1 has withheld the X-Ray plates upon which Ext.2 and Ext.3 were prepared by not proving those vital documents, which are the only primary evidence of the alleged fracture and the report of X-Ray is only a secondary evidence, which does not prove the actual fracture. It is further found that as an annexure to the claim petition, a prescription dated 22.06.2006 issued by B.P. Hospital, Nagaon was filed, as per entry therein, the respondent No.1 was advised “X-Ray of AP and lateral view of right knee and PA view of Chest” and he was administered the injection of Tetanus Toxide on 22.06.2006, but this prescription has not been exhibited by the respondent No.1 for reasons best known to him. This is relevant because again on 23.06.2006, as per Ext.5, the same respondent No.1 is again administered the same Tetanus Toxide Injection. In the photocopy of Ext.5, which was filed along with claim petition, 3 medicines are prescribed, but the prescription which is proved as Ext. 5, there are 4 medicines. Again, as per the said photocopy of Ext.5 which was filed with claim petition, the respondent is advised only of doing X-Ray, but in the document proved as Ext. 5, there appears to be an entry of respondent No.1 being advised of dressing. 5, there are 4 medicines. Again, as per the said photocopy of Ext.5 which was filed with claim petition, the respondent is advised only of doing X-Ray, but in the document proved as Ext. 5, there appears to be an entry of respondent No.1 being advised of dressing. Thus, it is evident that there was interpolation of entries made in Ext.5 and the said Ext.5 is a tampered and therefore, inadmissible in evidence. Hence, this court is compelled to disbelieve the evidence of the PW’s. As per the evidence of PW-2, he attended respondent No.1 on 23.06.2006 following accident on 22.06.2006 and it is also not the case of the Respondent No.1 that he consulted PW-2 on 22.06.2006 and, as such, the existence of photocopy of prescription dated 22.06.2006 issued by PW-2 shows that either there are suppression of material facts or the respondent No.1/ claimant had subsequently manufactured all other documents for the purpose of filing the present claim petition. The documents proved in the evidence of PWs appear to this court to be a manufactured one. 8. On perusal of exhibit 4, which the injury report given by the Doctor (PW-2) on 05.10.2007, it appears that the said doctor had on the basis of physical examination opined that the respondent No. 1 was suffering from ‘osteoarthritis’. The Respondent No.1 is a resident of Vill. Bhujkhowa, P.S. Tezpur, Dist. Sonitpur. As per Ext.5, he is advised on 24.06.2006 by the Doctor (PW-2), who is a General Surgeon to consult an orthopedic, but while the respondent No.1 can travel from Tezpur to Nagaon to consult PW-2 on several occasions, he continues to omit to consult an orthopedic doctor, despite becoming aware that he has ‘osteoarthritis’. This leads this court to take a presumption under section 114, Explanation (g) of the Evidence Act that if the respondent No.1 had consulted an orthopedic doctor, the results of such consultation would not have been favourable to him for the purpose of this case. 9. There is one more reason to disbelieve the entire claim, specially Ext.5 i.e. the Medical Certificate dated 05.10.2007, which is because before 05.10.2007, there is no document certifying permanent disablement of the respondent No.1, and as per Ext.5, the plaster was removed from right leg of respondent No.1 on 20.09.2007, but the respondent No.1 had filed his claim petition before the Court of Workmen’s Compensation on 05.09.2006. Therefore, on the date of filing of the claim petition, there was no material before the respondent No.1 that he would be developing partial disability after filing of claim petition. 10. Under the circumstances as narrated above, this Court is of the view that as the doctor (PW-2) merely presumed the disability and assessed the loss of income on presumption without knowing the profession of the respondent No. 1 examined by him. 11. This court is aware that Employees’ Compensation Act, 1923 is a beneficial legislation, for which the learned Commissioner, Employees’ Workmen’s Compensation are required to rely on the Doctor’s certificate of assessment of physical disability and loss of earning capacity, but such certificates must be found to be in consonance with other evidence on record. In the present case in hand, when the exhibits proved in evidence of the respondent No.1 and the doctor (PW-2) are not found to be believable, there is no way the assessment of physical disability or loss of earning capacity done by the said PW-2 can be accepted as a gospel truth. The Ext.5 was prepared after claim petition was filed, which is enough to raise suspicion on such a certificate of being tailor made. 12. Therefore, as the evidence of PWs is not believed by this court, this is found to be a fit and proper case to interfere with the impugned judgment and award. As a result, both the substantial questions of law are answered in the negative and in favour of the appellant. Consequently, the impugned judgment and award dated 16.02.2009 passed by the learned Commissioner, Workmen’s Compensation, Nagaon in N.W.C. No. 118/2006 is hereby set aside. This appeal is allowed with cost assessed at Rs.5,000/- against respondent No.1. 13. If any part of the awarded sum has been deposited by the appellant before this court or before the Court of learned Commissioner, Workmen’s/ Employees’ Compensation, Nagaon, or otherwise paid by the appellant to the respondent No.1, the appellant shall be entitled to refund and/or realization thereof. 14. The Registry of this Court may take a note that a part of the LCR is page-numbered. In between pages 5 and 6, there is a list of documents dated 04.09.2006, mentioning that (1) Accident Information Report, (2) X Ray Report (2 copies), (3) Prescriptions, (4) notice copy u/s 10, (5) Postal receipt are mentioned. 14. The Registry of this Court may take a note that a part of the LCR is page-numbered. In between pages 5 and 6, there is a list of documents dated 04.09.2006, mentioning that (1) Accident Information Report, (2) X Ray Report (2 copies), (3) Prescriptions, (4) notice copy u/s 10, (5) Postal receipt are mentioned. The X-Ray plates, as mentioned in list of documents, are not available anywhere in the trial court record. After that list, there are photocopy of prescription dated 22.06.2006, 23.06.3006, 25.08.3006, accident information report, section 10 notice with postal receipt (marked as Ext.16), report of X-Ray dated 23.06.2006, report of X- Ray dated 29.07.2006 and Vakalatnama is there, which are not numbered. Thus, the LCR is found partly numbered and partly without page-numbering. As this court is rejecting the exhibits on the ground that those documents are manufactured and/or tampered, the Registry shall cause page-numbering of the said record before returning back the said LCR.