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2018 DIGILAW 1310 (GAU)

United India Insurance Co. Ltd. v. Rustam Ali

2018-09-04

KALYAN RAI SURANA

body2018
JUDGMENT : KALYAN RAI SURANA, J. 1. Head Mr. S. Dutta, the learned senior counsel assisted by Mr. S. Dutta, the learned counsel for the appellant. None appears on call for the respondent, although notice was duly served on respondent No. 1 in a substituted manner by newspaper publication of notice. No notice was served on the respondent No. 2, Shri Prahlad Roy, as such, his name stands deleted at the risk of the appellant. 2. This appeal under Section 30 of the Workmen's Compensation Act, 1923, against the judgment and award dated 12.05.2005 in W.C. Case No. 145/2002 was admitted for hearing by order dated 25.07.2008, on the following substantial questions of law:- 1. Whether daily allowance paid to the workman would form part of the wages as defined under Workmen's Compensation Act, 1923? 2. Whether Commissioner can assess himself the loss of earning capacity without specific evidence of Doctor? 3. The case of the respondent No. 1/claimant, in brief, is that he was employed as labourer in a truck bearing Registration No. NLK-5047 owned by respondent No. 2. On 30.11.2001, while the truck was proceeding towards Hojai from Tinsukia, the said truck loaded with oranges met with an accident at Diring Chariali under Kohora Police out post at about 4-50 A.M, where the truck had collided with another stationary truck. As a result of the accident, the respondent No. 1 had suffered grievous injuries on chest, both legs, shoulder joint and waist. He was rushed to a nearest clinic at Kohora by the police of Bokakhat Police Station where he was given first aid treatment. Later on he was treated by a doctor at Nagaon for his injuries but having not recovered, he had filed a claim petition after serving notice to the employer under Section 10 of the Workmen's Compensation Act. The respondent No. 2, the employer did not contest the claim petition and the case was proceeded ex-parte against him. The appellant herein had contested the claim case by filing their written statement and denied the responsibility of paying compensation. 4. No issues were framed for trial. The respondent No. 1 had examined two witnesses, being himself (P.W. 1) and the doctor who had issued the injury certificate as P.W. 2 and the following documents were exhibited, Viz. accident information report (Ext. 1), X-Ray report (Ext. 2), injury certificate (Ext.3), prescriptions (Ext. 4. No issues were framed for trial. The respondent No. 1 had examined two witnesses, being himself (P.W. 1) and the doctor who had issued the injury certificate as P.W. 2 and the following documents were exhibited, Viz. accident information report (Ext. 1), X-Ray report (Ext. 2), injury certificate (Ext.3), prescriptions (Ext. 4 to 9), cash memos (Ext. 10 to 16), copy of notice under Section 10 (Ext. 17), postal receipt and A/D Card (Ext. 18 to 22), X-Ray plate (M/Ext.1). 5. On the basis of evidence on record, the learned Commissioner, Workmen's Compensation had held that the age of the respondent No. 1 was 23 years at the time of the accident and was held to be receiving monthly salary of Rs. 3,900/- per month inclusive of daily allowances. On the basis of the medical documents, specifically Ext. 3 (injury report), wherein the disability was assessed by the P.W. 2 as 35%. The learned Commissioner had held that the medical evidence as well as evidence of P.W.2 as the doctor had proved beyond all reasonable doubt that the respondent No. 1 had suffered permanent partial disability. Accordingly, the loss of earning capacity was determined at 35% by accepting the wages of the respondent No. 1 to be Rs. 3,000/- per month. Accordingly, the compensation was determined as follows:- 30% X Rs. 1800/- X 219.95 = Rs. 1,18,773.00 (Rupees One lakh Eighteen thousand Seven hundred and Seventy three only) In addition, the respondent No. 1 was held to be entitled to simple interest @ 12% per annum on the amount of compensation payable w.e.f 30.11.2001 i.e. from the date of accident. 6. Assailing the impugned judgment, the learned counsel for the appellant has submitted that it was the projected case of the respondent No. 1 that the respondent No. 1 was earning a sum of Rs. 3,900/- per month inclusive of Rs. 80/- as allowance per day and, as such, it is submitted that in absence of any evidence, the learned Commissioner ought to have excluded the said amount of Rs. 80/- per day from the computation of monthly wages as a part thereof would been spent towards travelling and other expenses. Hence, it is submitted that the monthly wages ought to have been considered Rs. 1500/- per month by deducting sum of Rs. 80/- per day for the month amounting to Rs. 2400/- per month. 7. 80/- per day from the computation of monthly wages as a part thereof would been spent towards travelling and other expenses. Hence, it is submitted that the monthly wages ought to have been considered Rs. 1500/- per month by deducting sum of Rs. 80/- per day for the month amounting to Rs. 2400/- per month. 7. By referring to the evidence of P.W. 2, it is submitted that although the doctor had issued the injury certificate (Ext. 3) on 20.10.2002, he had not physically examined the respondent No. 1 on the said date and as per the contents of injury report (Ext. 3), the doctor had relied on the examination done on 02.12.2001. By referring to cross-examination of P.W. 2, i.e. the doctor, it is submitted that despite his advise, the respondent No. 1 did not do any check X-Ray and it is submitted that there was no evidence of onset of arthritis as opined by the doctor in his examination-in-chief. It is submitted that there is no medical document to show the onset of arthritis at the fractured side and reference of onset of arthritis is not reflected in the injury report (Ext.3). Moreover, it is submitted that as the doctor did not certify the loss of earning capacity, it was not open to the learned Commissioner to make his own assessment of the loss of earning capacity without any proof tendered by the respondent No. 1. 8. In support of his submissions, the learned senior counsel for the appellant has placed reliance on the case of Raj Kumar Vs. Ajay Kumar and Anr., (2011) 1 SCC 343 and it is projected that in a case where a claimant has suffered permanent disability, for the purpose of assessing compensation in a motor accident case, for assessing the disability, recourse should be taken to the First Schedule to the Workmen's Compensation Act, 1923. The learned senior counsel for the appellant has placed reliance on paragraph 16 to 19 of this Case, which are quoted herein below: "16. The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. The learned senior counsel for the appellant has placed reliance on paragraph 16 to 19 of this Case, which are quoted herein below: "16. The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to 'hold an enquiry into the claim' for determining the 'just compensation'. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the 'just compensation'. While dealing with personal injury cases, the Tribunal should preferably equip itself with a Medical Dictionary and a Handbook for evaluation of permanent physical impairment (for example the Manual for Evaluation of Permanent Physical Impairment for Orthopedic Surgeons, prepared by American Academy of Orthopedic Surgeons or its Indian equivalent or other authorized texts) for understanding the medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view the first schedule to the Workmen's Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen. 17. If a Doctor giving evidence uses technical medical terms, the Tribunal should instruct him to state in addition, in simple non-medical terms, the nature and the effect of the injury. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If the percentage of permanent disability is stated with reference to a limb, the Tribunal will have to seek the doctor's opinion as to whether it is possible to deduce the corresponding functional permanent disability with reference to the whole body and if so the percentage. 18. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give 'ready to use' disability certificates, without proper medical assessment. 18. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give 'ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross- examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability. 19. We may now summarise the principles discussed above : (i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity. (ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability). (iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. (iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors." 9. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. (iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors." 9. On the issue of assessment of personal disability and loss of earning capacity, relying on the above cited case of Raj Kumar, it is submitted that the learned Commissioner ought to have assessed the functional disability and not merely the physical disability as per the doctor's certificate. It is submitted that without assessing whether the percentage of disability was the functional disability with reference to the whole body or whether it is only with reference to the particular limb, the assessment of permanent disability by the Commissioner was not sustainable. Moreover, in the absence of any certificate by the doctor (P.W. 2) as regards the loss of earning capacity, it is submitted that the learned Commissioner could not have made his own assessment without keeping in mind the parameters for assessment of compensation as laid down by the Hon'ble Apex Court in the case of Raj Kumar. 10. Having seen the records and on perusal of the injury report (Ext. 3), the said certificates contains a statement by the doctor (P.W.2) that he had examined the respondent No. 1 on 02.12.2001. In the certificate, there is no entry that the respondent No. 1 was examined on 02.12.2001. It appears from the prescription dated 20.10.2002 (Ext. 9) that the doctor (P.W.2) had advised the respondent No. 1 for a check X-ray of left leg. Therefore, it appears to this Court that if the doctor was confident about the onset of arthritis, there is no necessity for X-ray on the same day of issuing certificate vide Ext. 9 i.e. prescription. The diagnosis of arthritis is not supported by any medical document on record. Therefore, by relying on the case of Raj Kumar , this Court is constrained to hold that the learned Commissioner had mechanically applied the percentage of permanent physical disability as well as the percentage of loss of earning capacity. This Court is also bound by the ratio laid down by this Court in the case of National Insurance Co. Ltd. Vs. This Court is also bound by the ratio laid down by this Court in the case of National Insurance Co. Ltd. Vs. Bimal Nath, (2009) 1 GauLT 370 , wherein this Court has held that the loss of earning capacity of the injured must be determined on the basis of a determination of the injured's earning capacity in connection with any employment in which the injured could have been gainfully employed. 11. The Hon'ble Supreme Court, in the case of Golla Ranjana Vs. Divisional Manager, (2017) 1 SCC 45 , has held that the Commissioner, Workmen's Compensation is the last authority on facts. Therefore, having seen that the learned Commissioner had mechanically assessed the percentage of disability and the loss of earning capacity which is not found to be inconsonance with the ratio laid down by the Hon'ble Supreme Court in the case of Raj Kumar and Bimal Nath, this Court is inclined to allow this appeal by remanding the matter back to the learned Commissioner, Workmen's Compensation, Nagaon for afresh determination of the disability of the respondent No. 1 as well as loss of earning capacity. 12. Liberty is granted to the learned Commissioner to refer the respondent No. 1 to a Medical Board consisting of specialist from any Medical Colleges of the State. 13. The parties are entitled to fresh evidence in support of their stand. 14. The order of remand is within the meaning of Order XLI Rule 23-A CPC. 15. The appellant shall appear before the Court of the learned Commissioner, Workmen's Compensation, Nagaon on 30.10.2018 and by producing a certified copy of this order, the appellant shall seek further instructions from the said learned Commissioner. 16. Let the LCR be returned forthwith.