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2018 DIGILAW 1431 (GAU)

New India Assurance Co. Ltd. v. Masha Ali

2018-09-25

RUMI KUMARI PHUKAN

body2018
JUDGMENT : Rumi Kumari Phukan, J. Heard Mr. R.K. Bhatra, learned counsel appearing for the appellant New India Assurance Co. Ltd. None appears for the respondent/claimant. As the matter is of old pending one, so the same is taken up for hearing. 2. The present appeal has been directed against the judgment and order dated 08.06.2007, passed by the learned Commissioner, Workmen's Compensation (W.C.) at Golaghat, in the W.C. Case No.35/2003. 3. Briefly stated, the case of the claimant is that on 30.04.2003, at about 1:30 P.M., while the claimant/respondent was driving the truck No.AS-01-C-7706, towards Jorhat side, on the way another vehicle No.AS-06-6757 (bus) dashed against the said vehicle with great force as a result of which both the vehicle got damaged. The claimant and the handyman of the truck sustained serious injuries on their person i.e. head, leg, chest, etc., for which they took treatment at different hospitals at Jorhat, Nagaon and GNRC, Guwahati. A police case was also registered in connection with the accident. 4. The claimant preferred a petition before the Commissioner, Workmen's Compensation at Golaghat, Assam praying for compensation for the injury sustained in the said accident. It is stated that he was 100% disabled for the injuries he sustained in the said accident. 5. The said claim petition was registered as W.C. Case No.35/2003 and necessary summons were issued against the owner, driver and insurer of the truck. The owner of the truck/opposite party No.1 contested the case by filling written statement contending inter alia that there is no cause of action against the said vehicle, that the vehicle was duly insured with the New India Assurance Co. Ltd. and the driver had valid driving license, that the claimant did not suffer 100% disability, etc. 6. The Insurance Co./opposite party No.2 also filed their written statement contending inter alia that the claim of petitioner is not maintainable, there is no cause of action and the claimant is not a workman within the purview of the Workmen's Compensation Act and also denied the claim of the claimant about 100% disability. 7. During the course of proceeding, the claimant examined himself and one Doctor as well as produced some documents in support of his case. The witnesses were cross-examined by the other side. 8. 7. During the course of proceeding, the claimant examined himself and one Doctor as well as produced some documents in support of his case. The witnesses were cross-examined by the other side. 8. The claimant in his evidence asserted the facts that has been written in the claim petition and has submitted that he sustained the injuries in the said accident and while driving the vehicle (truck) as a driver, he sustained various injuries on his head, comminuted fracture in patella and chest injury. According to him, he initially took treatment at Teok CHC, thereafter at Civil Hospital, Jorhat and thereafter he was referred to the Neurological Research Center, Guwahati in which his CT scan of the brain was done and operation of leg was also performed with internal fixation. In support of his injuries and treatment, he has exhibited large numbers of documents and also examined the Doctor who certified about the health condition of the injured. 9. In his evidence, the Doctor after examining him on 24.2.2005, has certified that he found that the claimant was suffering from pain and stiffness of his knee joint and deformity of his forehead which occurred following the road traffic accident on 30.04.2003, at Teok. He have also stated about the head injury with fracture of frontal bone, fracture of frontal sinus, anterior and laterals wall of maxillary sinus, ethmoid sinus and nasal bone bilaterally, etc. The Doctor opined that he has disfigurement of his head, substantial loss of smell sensation, watering from his eyes with occasional headache alongwith due to osteoarthritis of his left knee joint. His total disability is assessed as 54%. 10. The learned Commissioner, W.C., on the basis of the aforesaid oral evidence as well as documentary evidence came to a finding that the claimant being a driver suffered loss of earning capacity upto 100%, relying upon the decision of New India Assurance Co. Ltd. vs. Subhash. Thereafter taking the monthly wages as Rs. 4000/-, calculated the loss of dependency at Rs. 4,72,944/- and as the vehicle was insured with the New India Assurance Co. Ltd., so the petitioner was directed to deposit the amount of compensation within 30 days, failing which the amount will carry interest @9% per annum from the date of accident along with 50% penalty on the awarded amount. 11. 4000/-, calculated the loss of dependency at Rs. 4,72,944/- and as the vehicle was insured with the New India Assurance Co. Ltd., so the petitioner was directed to deposit the amount of compensation within 30 days, failing which the amount will carry interest @9% per annum from the date of accident along with 50% penalty on the awarded amount. 11. Assailing the aforesaid order, the present appeal was preferred by the Insurance Company on the ground that assessment of 100% disability on the basis of the evidence of the claimant as well as the Medical Officer is not proper, whereas the Doctor has stated about only 54% of disability. It has been contended that the claimant irrespective of being a driver, can also carry out another work for his livelihood but that does not deprive him for the injury so sustained by him. 12. I have considered the submission of learned counsel for the appellant and also gone through the evidence and the medical documents that has been filed by the claimant. As it appears, the claimant has submitted large numbers of medical documents in support of his contention that he sustained serious injuries in the said accident. The medical document issued from the GNRC, Guwahati (Exhibit-3 series) reflects that the claimant sustained fracture of frontal bone, fracture of frontal sinus, anterior and laterals wall of maxillary sinus, ethmoid sinus and nasal bone bilaterally, etc., that has been opined by the Doctor/PW.2. The other medical document also indicates the fracture injury in Patella, for which operation was done. The learned Commissioner, W.C., who examined the said claimant might have observed also the health condition of the claimant while assessing the disability in view of the medical documents that was furnished. The Presiding Officer had the opportunity to visualize the conditions of the victim who personally appear before him, for which he was in a better position to assess the condition of a victim, which perhaps done by the Commissioner, in this case. 13. On the other hand, although the appellant has challenged such factum of injury and disability etc., but it appears that no any effective cross-examination was done to the said witnesses before the Commissioner, W.C. Except giving some suggestions, on positive evidence was adduced from the appellant side to dispute the case of the claimant. 13. On the other hand, although the appellant has challenged such factum of injury and disability etc., but it appears that no any effective cross-examination was done to the said witnesses before the Commissioner, W.C. Except giving some suggestions, on positive evidence was adduced from the appellant side to dispute the case of the claimant. Having regard to the nature of injury and the occupation of the victim, his pecuniary loss can be assessed as 100%. 14. Section 4(1)(c)(ii) of the Workmen's Compensation Act provides that assessment of injury is to be done by aid of qualified medical practitioner. In the present case, same standard has been applied by the Workmen's Commissioner and in that sense, there is no irregularity in the decision making process. In the given factual background, there is no any ground to interfere with the decision so arrived at by the Workmen's Commissioner. 15. Accordingly this Court is not inclined to interfere with the order with the Workmen's Commissioner, save and except that while passing the order, the Commissioner has also passed the award of 50% penalty along with 9% interest per annum in a very mechanical manner. It is stated that after the order, the entire amount was deposited before the Tribunal on 8.11.2017, which was also disbursed to the claimant, despite the protest made by the Insurance Company. Taking into account that the entire amount was deposited and disbursed to the claimant, this Court is of the opinion that interest will now be calculated from one month after the date of award and the penalty of 50%, that has been imposed by the Workmen's Commissioner, is hereby set aside. 16. With the observation made above, the appeal is partially allowed and disposed of. Return the LCR forthwith with a copy of this order.