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2018 DIGILAW 139 (GAU)

National Insurance Co. Ltd. v. Habibur Rahman

2018-01-25

KALYAN RAI SURANA

body2018
JUDGMENT & ORDER : Kalyan Rai Surana, J. Heard Mr. S.S. Sarma learned Senior Counsel assisted by Ms. M. Mazumdar learned counsel for the appellant. 2. This appeal under section 30 of the Workmen's Compensation Act, 1923 is directed against the judgment and award dated 09.09.2003 passed by the learned Commissioner, Workmen's Compensation, Guwahati in WC Case No. 207/2002, thereby awarding a sum of Rs. 1,69,394/- in favour of the respondent. The appeal was admitted by order dated 10.06.2004. However, the substantial question of law on which the appeal has been heard was not formulated. Hence, the following substantial questions of law are formulated on which this appeal has been heard:- 1. Whether in light of certificate dated 07.12.2002 issued by the Officer-in-charge, Hajo P.S. in connection with Hajo P.S. GDE No. 147/02 dated 07.05.2002 to the effect that on 07.05.02 at about 8:30 a.m. at Pakar Kuna village on PWD road one line bus bearing registration No. AS-14/4871 met with accident as a result one Md. Giasuddin Ahmed is injured "One Habibur Rahman S/o Lt. Abdul Aziz of village Galabil, P.S. Tarabari Dist. Barpeta was driving the above mentioned vehicle at the time of accident", the finding by the learned Commissioner, Workmen's Compensation that Md. Habibur Rahman was a victim of the same accident is perverse? 2. Whether the learned Commissioner could have relied on the injury report (Exbt.1) dated 20.01.2003 and the injury report (Exbt.6) to award compensation? 3. The brief facts of the case as stated in the claim petition is that on 07.05.2002 while the respondent No. 1 was driving the bus bearing registration No. AS-14-4871 from Gamafulbari Madrassa towards Guwahati with passengers, the said bus met with an accident at Pakarkona PWD Road under Hajo P.S., which is recorded vide GD Entry No. 147/2002. Due to the accident the respondent No. 1 sustained grievous injuries, leading to his permanent total disablement. Projecting that he was earning a salary of Rs. 4200/- per month including allowances and stating that his age was 25 years at the time of the accident, a claim for compensation of Rs. 6,50,000/- was made. The appellant contested the case by filing their written statement taking usual plea and requiring the respondent to a strict proof of his claim. 4. 4200/- per month including allowances and stating that his age was 25 years at the time of the accident, a claim for compensation of Rs. 6,50,000/- was made. The appellant contested the case by filing their written statement taking usual plea and requiring the respondent to a strict proof of his claim. 4. In support of the claim petition, the respondent examined himself as PW-1 and the Doctor who issued medical certificate (Exbt.6) was examined as PW-2. The owner of the vehicle, who is the respondent No. 2 herein, did not contest the claim petition. The learned Commissioner, did not frame any issue. The respondent No. 1 had exhibited the following documents:- 1. Doctor's Certificate-Exbt.1. 2. Doctor's Prescriptions-Exbt-2, 3 and 4. 3. X-ray report-Exbt-5. 4. Medical certificate-Exbt-6. 5. Police Report-Exbt-7 (the original report annexed with analogous case No. 206/02). 6. Driving license-Exbt-8. 5. The assessment made by the Doctor towards the physical disability of 50% of loss of earning capacity at 35% was accepted. It was held that as per the accident information report (Exbt.7) submitted by the I/O of the Hajo P.S. the respondent No. 1 was one of the injured in the accident. 6. The learned Commissioner, on the basis of the professional driving licence of the respondent No. 1, held that the driving licence was issued on 20.01.1989 and that nobody was entitled to hold a professional driving licence until he attained 18 years of age and, as such, at the time of the accident the age of the respondent No. 1 would not be less than 33 years. Accordingly his income was taken to be Rs. 4200/- per month and he was held to be 33 years of age and compensation was computed as follows:- Rs. 2400 X 201.66 X 35% = Rs. 1,69,394/- (Rupees One lakh sixty nine thousand three hundred and ninety four only). The appellant was directed to pay the said sum along with simple interest at 9% with effect from 21.08.2002 till the date of deposit. 7. Heard the submissions made by the Senior Counsel for the appellant and perusal the materials on record. 8. On a perusal of the LCR i.e. Lower Court Records, it is seen that the respondent No. 1 along with the claim petition had submitted an accident information report signed by one Mr. 7. Heard the submissions made by the Senior Counsel for the appellant and perusal the materials on record. 8. On a perusal of the LCR i.e. Lower Court Records, it is seen that the respondent No. 1 along with the claim petition had submitted an accident information report signed by one Mr. P.K. Saikia, with rubber stamp of Officer-in-Charge of Hazo P.S. In the said report it is disclosed that there were 3 injured persons in the accident involving GDE No. 147/2002 dated 07.05.2002, namely (1). Shri Pankaj Barman, (2). Habibar Rahman, (3). Md. Mozamil Hoque and the same officer had issued another certificate dated 07.12.2002, certifying therein that as a result of the accident one Md. Gyasuddin Ahmed is the injured person further stating therein that the respondent No. 1 was the driver of the vehicle. As per the evidence in chief recorded on 20.03.2003, it appears that the police report in WC Case No. 206/02 was marked as Exht.7 and the original was with the said case record. No record or copy of the said certificate (Exbt.7) is kept in the LCR of this WC Case No. 2067/02. Therefore, today at the time of the appreciation of the LCR, the contents of the said police report, which was actually marked as Exbt.7 could not be appreciated owing to the lack of any record of document marked as Exbt.7 in the LCR. 9. As per the internal page-3 of the impugned judgment and award, the learned Commissioner found fault that the appellant did not examine the police of Hajo P.S., whereas at the same time, when the respondent No. 1 had relied on the accident information report, without the police being examined, the said accident information report was accepted by the learned Commissioner. There is no finding why one report by the officer in charge of the Hajo P.S. can be accepted and why the other report (Exbt.B) should be discarded. Moreover, as per the copy of Accident Information filed with the claim petition, the same was not signed by the Investigating Officer of Hazo P.S. as stated in the judgment, but was signed with the rubber stamp of the Officer-in-Charge of Hazo P.S. 10. Moreover, as per the copy of Accident Information filed with the claim petition, the same was not signed by the Investigating Officer of Hazo P.S. as stated in the judgment, but was signed with the rubber stamp of the Officer-in-Charge of Hazo P.S. 10. In the opinion of this Court, when two contradictory documents are brought on record before the learned Commissioner, Workmen's Compensation, it becomes the duty of the learned Commissioner to frame an issue to ascertain whether the injured was at all involved in the accident. Under such circumstances when contradictory evidence is on record, it is not expected that the learned Commissioner shall not do anything to find out the truth. After all, the award which is being paid is out of public money and the award of compensation is not a charitable act by the learned Commissioner. Therefore, instead of finding the fault with the insurer i.e. the appellant, it was within the power of the learned Commissioner to summon the police to find out the truth but the said exercise was not done. Moreover, in the absence of a definite finding about the reasons for discarding the contents of Exbt.B i.e. police report dated 07.12.2002, the finding recorded to the effect that the respondent No. 1 had suffered an injury in the accident involved in the offending vehicle cannot be accepted. 11. At the same time the conduct of the concerned officials of the appellant must also be depricated by this Court. By spending public money the appellant had appointed an investigator. A police report i.e. Exbt-B, which is contradictory to the accident information report (Exbt.1) is investigated and brought to light. Nonetheless, although the Regional Manager, National Insurance Company Limited is arrayed as opposite party No. 2 in the claim petition, the officer at the highest level appears to be not bothered by such disclosure and no additional written statement is brought on record to highlight to the facts, as disclosed to them, that the respondent No. 1 was not at all a victim or injured in connection with GDE No. 147/02 dated 07.05.2002 of Hajo Police Station. Such lapse or inaction by the concerned officials of the appellant is nothing but dereliction of duty. Such lapse or inaction by the concerned officials of the appellant is nothing but dereliction of duty. This Court would recommend that although such a long time has passed from the date of investigation done by the authorities of the appellant, yet the matter requires to be investigated by the appellant to find out whether their officers were hand-in-glove with the respondent No. 1 which is apparent because the officials of the appellant who were informed of the result of the investigation chose to remain idle and allowed the award to be passed against the appellant. This observation is made because it has been mentioned earlier that the award which has been passed against the appellant constituted public money. There cannot be two yardsticks of dealing public money, one for the claimant(s) and one for the appellant who are dealing with the public money. If any dereliction of duty is found out against any person, it would be open to the appellant to recover such money from the concerned officers so that such practices can be stopped. Such anomalies should be curbed as the appellant is ultimately a public sector enterprise. 12. Having seen two contradictory police reports by the Officer-in-Charge, Hajo Police Station, one dated 24.07.2002 (which is filed to the claim petition not marked as Exhibit) and the second certificate dated 07.12.2002 (Exbt.B), this Court is of the considered view that if the contents of Exbt.B is found to be correct, the claim itself might be a fraudulent claim. 13. In the absence of original Exbt.7 on record, this Court finds that it is bound by the ratio laid down by the Hon'ble Apex Court in the case of Golla Ranjanna v. Divisional Manager & Anr., (2017) 1 SCC 45 , where it has been held by the Hon'ble Supreme Court that the learned Commissioner is the last authority of facts, as such, it is deemed fit to remand back the matter to the learned Tribunal with a direction to frame issues as per Rule 28 of the Workmen's Compensation Rules, 1924 as to whether the claimant was a victim involved in the accident on 07.05.2002 under GDE No. 147/02 of Hajo P.S. involving vehicle No. AS-14-4871. The learned Commissioner may frame any other issue as may arise for determination. 14. The learned Commissioner may frame any other issue as may arise for determination. 14. Accordingly, the first substantial question of law is answered by holding that the learned Commissioner had erred on facts and in law in not framing any issues in light of two contradictory Police reports (i.e. Exbt-7 and Exbt-8), thereby failing to determine whether the respondent No. 1 (i.e. claimant) was at all a victim and/or injured in the accident mentioned in GDE No. 147/02 dated 07.05.2002, for which the impugned judgment and award is not sustainable. 15. Hence the said question is answered in favour of the appellant. 16. In view of the finding of the substantial question of law No. 1, the second substantial question of law need not be answered at this stage because the matter has been remanded back to the learned Tribunal for a fresh decision. 17. Having seen the two contradictory reports of the Hajo P.S., on fresh determination of the claim, if the learned Commissioner comes at a finding which is in consonance of the entries made in the certificate given by the police dated 07.12.2002 (Exbt.B), it would be open for the learned Commissioner, Workmen's Compensation to take appropriate steps, including lodging of complainant for filing of a false claim petition. Similar liberty is also granted to the appellant. 18. Before parting with the records, the learned Commissioner, Workmen's Compensation, Guwahati is advised that if any document is marked as Exhibit from the record of another case, a compared copy of such exhibit is required to be kept on record and if such records are called for by the Appellate Court, while transmitting such records, it is the duty of the learned Commissioner to ensure that for the exhibits which do not form a part of the record, compared/authenticated copies must be kept on record, otherwise in an appropriate case, this Court may take a view that the relevant record has been withheld from this Court. It is merely a word of caution because the record of Exbt-7 is not found in the LCR. 19. In view of the above discussions, this appeal, therefore, stands allowed. The matter stands remanded back to the learned Commissioner, Employee's Compensation, Guwahati for a fresh determination in accordance with law. It is merely a word of caution because the record of Exbt-7 is not found in the LCR. 19. In view of the above discussions, this appeal, therefore, stands allowed. The matter stands remanded back to the learned Commissioner, Employee's Compensation, Guwahati for a fresh determination in accordance with law. On receipt of the records, the learned Commissioner shall afford reasonable opportunity to both sides to lay down their evidence in support of their case. 20. The learned Commissioner is also directed to take note of the provision of Rule 21 and Rule 28 of the Workmen's Compensation Rules 1924. Rule 21 prescribes the manner in which the documents have to be produced before the learned Commissioner. In the present case, the claim petition was filed on 21.08.2002. The injury report (Exbt.6) was prepared on 20.01.2003. Therefore, at the time of filing of the claim petition, this document was not on record. As per the provision of Rule 21(3) of the Workmen's Compensation Rules, 1924, it is prescribed that a document which has not been produced at or within the time specified in Sub-Rule (1) or (2) as the case be, shall not, without the sanction of the Commissioner, be admissible in evidence on behalf of the party who should have produced it. If this rule is applied then the injury report (Exbt. 6) it becomes inadmissible in the eye of law. 21. Similarly, Rule 28 mandates that issues are required to be framed. The provisions of Workmen's Compensation Act, 1923 now Employees Compensation Act, 1923 is a beneficial legislation and the claimant should not be made to suffer delay merely on technical grounds, as has happened in this case. Therefore, the learned Commissioner, would now scrupulously apply and follow the provisions of Rule 21 and Rule 28, and if a document is sought to be introduced subsequently, it must be done by following the prescribed procedure and by providing a copy thereof to the insurer so as to enable them to take adequate instructions in the matter. 22. With the aforesaid observations, the appeal stands allowed as indicated above. There shall be no order as to costs. The order of remand is within the scope of Order 41 Rule 23 (A) CPC. 23. 22. With the aforesaid observations, the appeal stands allowed as indicated above. There shall be no order as to costs. The order of remand is within the scope of Order 41 Rule 23 (A) CPC. 23. The appellant who is represented by their learned counsel shall appear before the learned Commissioner, Workmen's Compensation on 16.03.2018 and by producing a certified copy of this order, shall seek further instructions from the said learned Tribunal. 24. The amount already disbursed to the respondent No. 1 shall be subject to the outcome of the fresh adjudication upon remand. 25. Return back the LCR.