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2017 DIGILAW 741 (GAU)

Oriental Insurance Co. Ltd. v. Rama Kanta Roy

2017-06-06

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : 1. Heard Mr. S. Dutta, learned Sr. counsel for the appellant. None appears on call for the respondent. 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 22.12.2008 passed by the learned Commissioner, Workmen’s Compensation, Nagaon in N.W.C. Case No. 147/2002. 3. This appeal was admitted by order dated 21.04.2010 on the following substantial questions of law: (i) Whether daily allowance earned by the workman can be construed to be part of the salary in order to compute the precise amount of compensation? (ii) Whether doctor can assess loss of earning capacity of the injured at his Whims/ Guesswork? 4. With his usual fairness, the learned Sr. counsel for the appellant has submitted that the first substantial question of law has since be settled by various judgment of this Court wherein it has been held that daily allowance earned by a workman is to be construed to be a part of the salary for the purposes of calculating the amount of compensation. In view of above, only the second question of law survives to be determined by this Court in the present appeal. 5. The facts as revealed from record is that the claimant, namely, Rama Kanta Das was a resident of village No. 3, Kandhulimari in the district of Nagaon, and he was employed as a handyman cum cleaner in a passenger carrying bus bearing Registration No. AS-02/3551. The said vehicle met with an accident at National Highway No. 37 on 29.04.2002 at about 8.00 a.m. in which the claimant/respondent No. 1 suffered grievous multiple injuries in his person, pursuant to which, the respondent No. 1 claimed that he was unable to perform his day to day duties and became permanently disabled. The jurisdictional Roha P.S. registered a case as GDE No. 700 dated 27.04.2002. The respondent No. 1 had claimed that he was 26 years of age and that he used to earn salary of Rs. 2000/- per month excluding daily allowance of Rs. 30/- per day from the respondent No. 2, who is the owner of the said vehicle. The jurisdictional Roha P.S. registered a case as GDE No. 700 dated 27.04.2002. The respondent No. 1 had claimed that he was 26 years of age and that he used to earn salary of Rs. 2000/- per month excluding daily allowance of Rs. 30/- per day from the respondent No. 2, who is the owner of the said vehicle. As per the statement made in the claim petition, the notice was properly served to the opposite parties therein, namely, Sri Dipak Kumar Nath (respondent No. 2 herein) as well as Oriental Insurance Co. Ltd. Nagaon Branch (appellant herein) after the accident under the provisions of Workman’s Compensation Act, but without any result and claim a compensation of Rs. 3 Lakhs with interest thereon. 6. Although, the claim petition contained in the lower court record does not reflect the date of filing of the claim petition and the verification also does not contained any date, but the order sheet reveals that the claim application was filed on 20.06.2002. As per the claim application, there are only two enclosures, the first being accident information report in original and other being an injury report. The owner of the vehicle as well as the appellant herein contested the case by filing their separate written statement. The stand of the respondent No. 2 herein was that the vehicle was driven by an authorized driver having a valid license and that the vehicle was duly insured with the appellant herein and the said insurance was valid as on the date of the accident and there is no violation that the condition of insurance and therefore, prayed to absolve him from the claim. The appellant in the written statement denied each and every statement made in the claim petition and also denying their indemnity by stating that the respondent No. 1 would have to prove the valid policy of insurance, about his employment and about validity of the driving license etc. The respondent No. 1/claimant examined two witnesses including himself and the Doctor and he exhibited the following exhibits, viz. Exbt. No. (1) information report, (2) advice slip from Ahotguri Sub Centre, Exbt. (3) is injury report, Exbt. (4)(i) and (4)(ii) x-ray reports, Exbt. (5 to 8) are prescriptions, Exbt. (9) are the vouchers and Exbt. (10) is the material exhibit i.e. the x-ray plate. Exbt. No. (1) information report, (2) advice slip from Ahotguri Sub Centre, Exbt. (3) is injury report, Exbt. (4)(i) and (4)(ii) x-ray reports, Exbt. (5 to 8) are prescriptions, Exbt. (9) are the vouchers and Exbt. (10) is the material exhibit i.e. the x-ray plate. No witness was examined by the appellant or by the owner of the vehicle. 7. On perusal of the materials available on record, the learned Commissioner, Workmen’s Compensation, Nagaon had accepted the evidence of the respondent No. 1 and also accepted the evidence of the Doctor as well as the injury report and accepted the averment of the respondent No. 2 that he has suffered physical disablement of 20% and the loss of earning capacity for that disablement up to 40%. Considering the age of respondent No. 1 as 26 years, held that the respondent No. 1 was earning Rs. 3000/- per month and computed the compensation at 60% of Rs. 3000/- x 215.28 x 40% = Rs. 1,55,001/- and awarded the said sum along with 12% per annum on the amount of compensation from the date of adjudication till the date of realization. 8. The learned senior counsel for the appellant submits that a sum of Rs. 80,000/- was deposited before the learned Commissioner, Workmen’s Compensation, Nagaon in connection with N.W.C. No. 147/2002 on the basis of an order dated 21.04.2010 passed by this Court in the connected M.C. No. 1159/2010, and that the learned Commissioner, Workmen’s Compensation, Nagaon had disbursed a sum of Rs. 80,000/- to the respondent No. 1 vide cheque No. 232337 dated 29.09.2010, which is also reflected in the trial court record available before this Court. 9. The pointed argument of the learned senior counsel for the appellant are that (i) the injury report (Exbt. 3), which is signed by the PW-2, the Doctor, it is specifically mentioned that the said injury report was in respect of an injury which was seven hours old. 9. The pointed argument of the learned senior counsel for the appellant are that (i) the injury report (Exbt. 3), which is signed by the PW-2, the Doctor, it is specifically mentioned that the said injury report was in respect of an injury which was seven hours old. Therefore, the said report dated 04.10.2002 was referable to some other injury which was seven hours old and could not have been in respect of the injury suffered in the accident which happened on 29.04.2002, (ii) the respondent No. 1 was given first aid at Health and Family Welfare Centre at Ahatguri P.H.C. on 29.04.2002 at about 8.00 a.m. but the said Doctor, who had provided initial treatment and has issued Exbt.2 dated 29.04.2002, was not examined. But the respondent No. 1 had relied on Exbt.3, which was issued by a Doctor, who did not give him the first treatment in respect of the accident which was occurred on 29.04.2002, (iii) Exbt.3 was not believable because Doctor did not give any opinion on the basis of any fresh x-ray, but relied on his prescription dated 29.04.2002 to certify the physical disability of 20% and 40% loss of earning capacity without any basis and without giving a finding as to how he arrived at the conclusion of disability and loss of earning capacity, (iv) the claimant did not prove the loss of earning capacity in any employment which the respondent No. 1 was capable of doing and (v) the x-ray contains in impression of several metal hooks, and according to the learned senior counsel for the appellant, the same is in consonance with the impression of the person wearing a blouse and a bra which is normally worn by female and therefore, it is submitted that it is entirely a set up case which is based on false report and therefore, claim for compensation as made by the respondent No. 1 shall liable to be dismissed. 10. Considering the arguments advanced by the learned senior counsel for the appellant and on perusal of the materials available on record, it appears that the trial court does not contain the copy of the notice which is required to be issued in terms of Section 10 of the Employees’ Compensation Act, 1923. 10. Considering the arguments advanced by the learned senior counsel for the appellant and on perusal of the materials available on record, it appears that the trial court does not contain the copy of the notice which is required to be issued in terms of Section 10 of the Employees’ Compensation Act, 1923. The provisions of Section 10(1) of the said Act provides that no claim for compensation shall be entertained unless notice of the accident was given in the manner provided in the said act, subject to the proviso contained therein that the Commissioner may entertain and decide any claim notwithstanding the notice has not been given, if he is satisfied that the failure to the notice was due to sufficient cause. 11. On perusal of the impugned judgment, it does not appear that the learned Commissioner, Workmen’s Compensation, Nagaon had recorded its satisfaction as to existence of any sufficient cause, which prevented the respondent No. 1 to prefer a claim before the learned Commissioner, Workmen’s Compensation. Therefore, in view of the provisions of Section 10 (1) of the Employees’ Compensation Act, this Court is of the opinion that in the absence of the recording of satisfaction by the learned Commissioner, Workmen’s Compensation about the existence of sufficient cause, which prevented the respondent No. 1 to prefer a claim before the said authority, the claim itself was not maintainable. 12. Moreover, the claimant did not examine the author of the first medical certificate issued on 29.04.2002 by the concerned Medical Officer of Ahatguri P.H.C. The appellant by not giving the best evidence of the person who are the Doctor and who first examined the respondent No. 1 appears to have withheld material evidence. Moreover, Exbt.3 contains specific averments that the age of the injury was seven hours old on 04.10.2002, as such, the PW-2 cannot be said to be referring to the injuries which had occurred on 29.04.2002. There is one more reason to say so, because as per the Exbt.1 i.e. the accident information report, the accident had occurred at 8.00 a.m. and as per Exbt.3, the Doctor i.e. PW-2 had seen the patient at 5.00 p.m. therefore, the age of injury could not be seven hours old as stated therein, there is a time gap of two additional hours. Moreover, the PW-2 did not give his finding as to what was the basis of assessing physical disability of 20%, without taking help or assistance from any investigation report. There is nothing on record to show that the fracture on the 4th, 5th, 6th and 7th right ribs were not healed on 04.10.2002. The x-ray plate (Exbt.10) and the x-ray reports [Exbt.4(i) & 4(ii)] take the place of proof that the injury has resulted in any permanent disability. Hence, except for the self serving statement by PW-2 vide Exbt.3, there is no record of anything showing that the injury complained had reduced the earning of the claimant/respondent No. 1 or that he suffered any loss of earning in any other employment which he could have undertaken. Hence, it is held that the opinion of the Doctor (PW-2) was a premature guess-work which was done without any basis and without any record that the injury has not been healed as on 04.10.2002, the date on which Exbt.4 was issued. Such a premature guess-work is not provided for in the Employees’ Compensation Act, 1923. 13. Moreover, the argument of the learned senior counsel for the appellant on the x-ray plate, which shows the impression of several metal hooks although appears to be a prima-facie evidence that the x-ray plate belongs a female wearing the blouse and a bra, however, this Court is not on an expert thereon, as such, no further comments is made, but it prima-facie indicates that the learned senior counsel for the appellant is apparently correct in making his arguments. 14. However, as the judgment is vitiated on two grounds as indicated above, this Court finds that this is a fit and proper case to interfere with the impugned judgment and award. As a result, in light of my finding observed above, the substantial question of law No. 2 is answered in the negative and in favour of the appellant. Consequently, the impugned judgment and award dated 22.12.2008 passed by the learned Commissioner, Workmen’s Compensation, Nagaon in N.W.C. No. 147/2002 is hereby set aside. 15. This appeal stands allowed without cost. However, considering the fact that the accident did occur resulting in some injury to the respondent No. 1/claimant, coupled with the fact that by now after 15 years, he must have spent it, this Court is not inclined to order recovery of Rs. 15. This appeal stands allowed without cost. However, considering the fact that the accident did occur resulting in some injury to the respondent No. 1/claimant, coupled with the fact that by now after 15 years, he must have spent it, this Court is not inclined to order recovery of Rs. 80,000/- paid by the appellant to the respondent No. 1/claimant by virtue of interim direction issued by this Court.