Research › Search › Judgment

Gauhati High Court · body

2017 DIGILAW 496 (GAU)

New India Assurance Co. Ltd. v. Shahjahan Ali

2017-04-25

KALYAN RAI SURANA

body2017
JUDGMENT : KALYAN RAI SURANA, J. 1. Heard Mr. R.K. Bhatra, learned counsel for the appellant. None appears on call for the respondent. Despite regular service of notice on the respondent No. 1 and substituted service of summons by newspaper publications of summons in respect of respondent No. 2. The appeal was admitted by order dated 21.9.2015 on the following substantial question of law : "Whether the impugned judgment and award passed by the learned trial court is in conformity with the provision of Section 4(1)(c)(ii) of the Employees' Compensation At, 1923, in view of the fact that no qualified medical practitioner has been examined?" 2. The challenge in this appeal filed under Section 30 of the Workmen's Compensation Act, 1923, now renamed as "Employees' Compensation Act, 1923" is the judgment and order dated 15.3.2017 passed by the learned Commissioner, Workmen's Compensation, Dhubri in WC Case No. 1/2006 awarding a compensation of Rs. 1,58,364/- to the respondent No. 1/claimant namely, Shahjahan Ali in injuries allegedly sustained on 30.10.2005 while working as a handyman in the Truck bearing Reg. No. AS-17/1995. 3. The pointed argument of the learned counsel for the appellant is that the respondent No. 1 herein had proved that exhibits No. 1 to 8 including the X-Ray plate, out of which Ext.1 is the accident report, showing that the accident took place on 30.10.2005 at about 10:30 am. It appears from the said document that the information of such accident was recorded as GDE No. 930 dated 21.11.2005. Ext.2 is the medical certificate dated 28.12.2005, as per which the respondent No. 1 was examined by the Medical and Health Officer on 21.12.2005 at 10:40 am at Civil Hospital, Dhubri. Ext.3 and Ext.4 are the prescriptions by the doctor. Ext.5 is the discharge slip issued by Dhubri Civil Hospital showing the respondent No. 1 was admitted on 21.12.2005. Ext.6 is the X-Ray report dated 3.12.2005. Ext.7 is postal receipt and Ext.8 is the notice under Section 10 of the Workmen's Compensation Act. From the above, the learned counsel for the appellant has projected that the injury report (Ext.2) did not show that the respondent No. 1 suffered any injury on the date of the accident. The X-Ray report is dated 3.12.2005, for which there is no corresponding prescription. From the above, the learned counsel for the appellant has projected that the injury report (Ext.2) did not show that the respondent No. 1 suffered any injury on the date of the accident. The X-Ray report is dated 3.12.2005, for which there is no corresponding prescription. His further argument is that if the prescriptions at Ext.3 is to be believed, the respondent No. 1 was treated by one Dr. N M Ahmed in a private clinic on 30.10.2005 who was otherwise the most ideal person to give evidence about the injury allegedly suffered by the respondent No. 1 in the alleged accident dated 30.10.2005, but the doctor who had provided initial treatment to the respondent No. 1 was not called to give any evidence. As a matter of fact, no doctor was examined in the present case, and as such all the documents exhibited by the respondent No. 1 formed the basis to pass the award. 4. Having considered the trial court record, it is apparent that no doctor was examined by the respondent No. 1 to prove his injury or the claim. There is nothing on record to show that any injury was suffered by the respondent No. 1 in the accident which occurred on 30.10.2005. Moreover, this court in the case of New India Assurance Company Ltd. v. Sanjit Kumar and another reported in (2) GLT 567, had settled the law relating is the assessment of the loss of earning capacity is to be judged on the basis of 'sound medical principles' and the assessment is to be carried out by a qualified medical practitioner. It is further been held that in the absence of the evidence of the doctor, it is not permissible for the court to find out only from the evidence physical disability about the accident of loss of earning capacity. It has been further settled in the case of New India Insurance Company Ltd. v. Bimal Nath 2009 (2) GLR 62, that not only the medical practitioner, who is to assess the loss of earning capacity, but the claimant has to prove that there was a reduction in earning capacity in all employment which he was capable of undertaking at the time of the accident. 5. 5. As per the evidence available on record, this court does not find any material to believe that the injury sustained by the accident had allegedly taken place on 30.10.2005. Hence, the impugned judgment and award appears to be vitiated on the ground of jurisdictional error committed by the Commissioner in assessing the compensation. This court is also did not find from the LCR that the learned Commissioner has not even marked the exhibits, which amounts to dereliction of duty because in absence of marking all the documents as exhibits, it not only makes it difficult to identify a particular exhibit from many documents available on record, but it also vitiates the judicial process of determining the disputed issues involved in the case. Therefore, it is hoped that in future, the learned Commissioner, Employees'/Workmen's Compensation, Dhubri would take care to mark all the exhibits. 6. In the present case in hand, there is lack of evidence of any personal injury suffered by the respondent No. 1 in the alleged accident occurred on 30.10.2005. Hence, the impugned judgment and award dated 15.3.2005 passed by the learned Commissioner, Workmen's Compensation, Dhubri in WC Case No. 1/2006 stands set aside and quashed the respondent No. 1 is not found entitled to any compensation. 7. If the appellant has deposited any money/compensation before the learned commissioner, Workmen's Compensation, Dhubri or before the Registrar of this Court, pursuant to the interim order dated 21.9.2015 passed by this Court in MC Case No. 2906/2007, the appellant would be entitled for the recovery of the said amount in accordance with law. 8. The appeal is allowed. 9. Let the LCR be returned back.