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2017 DIGILAW 442 (GAU)

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

2017-04-07

KALYAN RAI SURANA

body2017
JUDGMENT : Kalyan Rai Surana, J. Heard Mr. S. Dutta, learned Senior counsel for the appellant as well as Mr. B. Deka and Ms. P. Shandilya, learned counsel for the respondent No. 2. None appears on call for the respondent No. 1 despite due service of notice in a substituted manner by newspaper publication. 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. 14/2007 awarding a compensation of Rs.2,41,920/- with 12% interest from the date of the award till realization. The present appeal was admitted by order dated 13.12.2010 on the following substantial questions of law : (i) Whether the appreciation of the evidence, given by the doctor in the claim proceeding, as regards the loss of earning capacity, is perverse in the face of the fact that the doctor had not given any evidence to show that he knew the profession/occupation of the workman? (ii) Any other questions, which may be allowed to be raised by the Court at the time of hearing of the appeal. 3. The respondent No. 1 was 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 (side of River Bank) at about 3:45 AM. As a result of the accident, the respondent No. 1 sustained grievous injury on his left hand and wrist and on left ankle with foot and multiple injuries on different parts of his body. As per his evidence, he was taken by the police to the B.P. Civil Hospital for treatment. A case was registered in Nagaon P.S under GDE No. 409 dated 22.06.2006. At the time of accident the driver had a valid license and the truck is duly ensured with the appellant. 4. As per his evidence, he was taken by the police to the B.P. Civil Hospital for treatment. A case was registered in Nagaon P.S under GDE No. 409 dated 22.06.2006. At the time of accident the driver had a valid license and the truck is duly ensured with the appellant. 4. The respondent No. 1 examined himself as the PW.1 and the Doctor as P.W. 2. He deposed that while the truck was coming from Jorhat at about 3.45 AM loaded with tea at Chakarigaon, a truck tried to overtake their truck and at that time a cow came in the front of truck when the driver applied breaks and the truck overturned near the river side. The police had taken him to Nagaon Civil Hospital where he was asked to that an accident done. After the X-Ray was done, the Doctor had plastered his left leg and thereafter he was released and continued with his treatment from Dr. Hazarika for about one and half year. He stated that he had pain in his leg for which he cannot work as a labourer any more. As per Doctor's advice, he had got 4 or 5 X-Ray's done. He had stated that though he was advised to go to Guwahati for treatment but he could not do so. 5. However, in his cross-examination, the Plaintiff Witness No.1 ("PW-1" for short)had stated that he was a labourer in the vehicle and he was then (i.e. at the time of giving his evidence) working in the bus stand. He admitted that he could not give any proof of his age. He stated that he suffered fracture in the right femur. He also stated that injury in his hand was a minor injury. He also stated that he had come walking to court for giving his evidence. He also admitted that he had not submitted the vouchers for expenses. He had stated that he had filed 4/5 X-Ray plates. The PW-2, i.e. the doctor, in his cross-examination had stated that fracture of right femur may be cured after operation but the respondent No. 1 had not undergone any operation till the certificate was issued on 16.12.2007. He also admitted that he had not submitted the vouchers for expenses. He had stated that he had filed 4/5 X-Ray plates. The PW-2, i.e. the doctor, in his cross-examination had stated that fracture of right femur may be cured after operation but the respondent No. 1 had not undergone any operation till the certificate was issued on 16.12.2007. He also stated that he could know from the X-Ray report that the respondent No. 1 had developed 'osteomyelitis', which can be cured after operation, but there is no chance of total cure and the chances of recovery are up to 90%. He specifically stated that he was not aware of what was the profession of respondent No. 1. He had also stated that he had determined the physical disablement and the loss of earning capacity on presumption. 6. On perusal of the various exhibits proved by the respondent No. 1, it appears that in the evidence recorded by the learned Commissioner, Workmen's Compensation, Ext. No. 2, 3 and 4 were X-Ray reports but two X-Ray plates have been marked as Material Ext. No. 1 and 2. However, no X-Ray plates have been sent-up along with the records called from the Court of the Commissioner, Workmen's Compensation. As per the injury report (Ext. 5) dated 16.12.2007, it is recorded therein that the doctor (PW-2) had examined the respondent No. 1 on 24.06.2006. As per the said certificate the finding of PW. 2 is that respondent No. 1 was suffering from one old and two fracture in the middle third of right femur, which was grievous in nature, multiple .....(illegible) in the right ankle joint and foot, which was simple in nature and the respondent No. 1 was found to be suffering from Chronic Osteomyelitis of right femur in his upper half with restriction of movement of the leg. The finding as recorded by the PW-2 does not inspire any confidence because as per the Injury Report (Ext.5), on ocular examination (written in short in the report as 'O/E'), an old fracture was found in the middle of third of right femur. However, there is no X-Ray plate on record showing that the fracture on the right femur was not completely healed as on 16.12.2007, i.e. the date of the said Ext.5. As per the rubber stamp affixed in Ext. 5, the doctor is a general practitioner. However, there is no X-Ray plate on record showing that the fracture on the right femur was not completely healed as on 16.12.2007, i.e. the date of the said Ext.5. As per the rubber stamp affixed in Ext. 5, the doctor is a general practitioner. As on 16.12.2007, i.e. the date of Ext.5 report, no X-Ray plate and supporting X-Ray report determining Osteomyelitis has been proved. The PW-2 has not proved that he had the special ability to detect such a disease like osteomyelitis only by ocular examination. There is no explanation by either of the two PWs as to how there can be three X-Ray reports, when only two X-Ray plates were marked as M. Ex. 1 and 2, notwithstanding that even those two X Ray plates are not available in the trial court record. 7. Moreover, on the perusal of Ext. 16, which is a notice under Section 10 of the Workmen's Compensation Act, it appears that the same was posted on 10.01.2007. However, as on 10.01.2007, there was no existence at all of Ext. 4 and Ext.5, i.e. the X-Ray report dated 29.01.2007and the injury report dated 16.12.2007. As per the said Ext.4, the Radiologist had opined that the respondent No. 1 was suffering from Chronic Osteomyelitis. Thus, this court finds that as on 10.01.2007, there was no material at all before the respondent No. 1 to presume that he had suffered any disability whatsoever, not to speak of a permanent disability. This Court also does not find a mention of application of Plaster of Paris bandage on the right thigh/ femur of respondent No. 1 after the accident. However, as per Ext. 12, which is a prescription dated 24.06.2006 by P.W.2, the respondent No. 1 had come to him with Plaster of Paris on his right thigh. To this court, it is surprising that even before the diagnosis of osteomyelitis, the respondent No. 1had already become aware on 10.01.2007 that he had suffered permanent disability and despite the advice from the PW-2, who was a General Practitioner, to consult an Orthopedic Doctor, the respondent No. 1 chooses to ignore the said expert medical advice and continues his treatment under a General Practitioner. The same has compelled this Court to presume under Section 114 Explanation (g) of the Evidence Act, 1872 that if the respondent No. 1 had consulted an Orthopedic Doctor, the result of such consultation would not have been favourable either to him or for the purpose of making out his case before the learned Commissioner. 8. There is one more reason to disbelieve the entire claim in light of Ext.5 i.e. the Medical Certificate dated 16.12.2007, because no doctor had given anything in writing prior to 29.01.2007 about suffering of any permanent disablement by the respondent No.1 and yet, the respondent No.1 had filed his claim petition before the Commissioner, Workmen's Compensation on 29.01.2007. Therefore, on the date of filing of the claim petition, there was no material on record before the respondent No.1 to presume that he would be developing partial disability after filing of claim petition. Therefore, it appears that the Respondent No.1 first thought of a disease and then procured the necessary certificates to build-up a case. 9. 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. Such an evidence, based on a mere presumption is liable to be totally discarded. 10. This court is aware that Employees' Compensation Act, 1923 (formerly Workmen's Compensation Act, 1923 is a beneficial legislation, and the law mandates the learned Commissioner, Workmen's Compensation to rely on the Doctor's Certificate of assessment of physical disability and loss of earning capacity. But it is the duty of the learned Commissioner to satisfy himself whether such certificates can be said to be in consonance with other evidence on record. In the present case in hand, the exhibits proved in evidence of the respondent No.1 and the doctor (PW-2) are not found to be believable by this court. Under such circumstances, there is no way the assessment of physical disability or loss of earning capacity, as done by the said PW-2 can be accepted as an admissible evidence. The Ext.5 was prepared after claim petition was filed, which is enough to raise an eye of suspicion on such a certificate of being tailor made. 11. Under such circumstances, there is no way the assessment of physical disability or loss of earning capacity, as done by the said PW-2 can be accepted as an admissible evidence. The Ext.5 was prepared after claim petition was filed, which is enough to raise an eye of suspicion on such a certificate of being tailor made. 11. Therefore, for the reasons as indicated above, the evidence of both the claimant's witnesses are not found to be believable by this court. Hence, this is 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. 14/2007 is hereby set aside. This appeal stands allowed. There shall be no order as to costs. 12. If any part of the awarded sum has been deposited by the appellant either before this Court or before the Commissioner, Workmen's Compensation, Nagaon, or otherwise paid to the Respondent No.1, the appellants shall be entitled to refund and/or realization thereof.