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2018 DIGILAW 3 (GAU)

Union of India v. Kamrul Haque Laskar

2018-01-02

KALYAN RAI SURANA

body2018
JUDGMENT : Kalyan Rai Surana, J. Heard Mr. S.K. Medhi learned counsel for the appellant. None appears on call for the respondent although notice is duly served. 2. This appeal under section 30 of the Workmen's Compensation Act, is directed against the judgment and award dated 04.02.2008 passed by the learned Commissioner, Workmen's Compensation, Silchar in W.C. Case No. 74/2007. 3. This appeal was admitted for hearing on the following substantial question of law by order dated 12.05.2010:- 1. Whether the learned Commissioner is justified in taking the loss of earning capacity of the workman at 100% on the basis of the disability certificate issued by the authority of Silchar Medical College and Hospital without there being any assessment of such loss of earning capacity by a registered Medical Practitioner as required under Section 4(1)(c)(ii) of the Workmen's Compensation Act, 1923? 2. Whether the interest payable under Section 4A(3)(b) of the Workmen's Compensation Act, 1923 is awardable from the date of adjudication or from the date of accident? 4. The brief facts of the case is that on 27.03.2006, Code No.352 C.P. Mazdoor Kamrul Hoque Laskar was working with 402 RMPL/107/RCC with effect from 27.08.2002. On the said date, he came to 107 RCC location for collection of stores at about 15:45 hours, when Adm. Supr., whistled an alarm of fire and rushed towards POL dump for extinguishing the fire. In the process, the said worker slipped and fell down towards the valley side and sustained injuries in his left leg. He was given first aid in MI room and then from there he was referred to Civil Hospital, Aizwal. Thereafter he was referred for further medical treatment to Silchar Medical College and Hospital. 5. The Officer Commanding, EE (CIV), SG, 107 Road Construction COY (GREF), submitted a claim petition on behalf of the respondent No.1/claimant for compensation under the Workmen's Compensation Act. Enclosed with the said application was a calculation sheet and the statement of case showing that their Medical Board had found out the disability of the respondent No.1 at 20% and accordingly, the compensation was assessed by the Commanding Officer of the appellant at Rs. 56,311/-, and the payment of the said amount was also deposited before the learned Commissioner. 6. The claim petition was registered on 04.02.2008. 56,311/-, and the payment of the said amount was also deposited before the learned Commissioner. 6. The claim petition was registered on 04.02.2008. The learned Commissioner, relied on the certificate of disability dated 28.10.2006 issued by the District Disability, Re-habilitation Centre, Silchar Medical College and Hospital, Silchar, assessing the permanent disability at 40% determining the compensation as follows by taking the age of the respondent No.1 as 34 years:- Rs. 1674x199.40x40%= Rs. 133518/-. 7. The compensation of Rs. 56311/-, which was already deposited by the employer was released to the respondent No.1, directing the appellant to pay a further sum of Rs. 77,207/- with interest of 9% with effect from the date of the accident. Records show that the award was passed on the registration of the compensation case itself on 04.02.2008 without requiring the appellant any opportunity to file their written statement and without requiring evidence of either the claimant side or from the opposite party i.e. the appellant herein to be filed. 8. Referring to the substantial question of law on which the appeal has been admitted, the learned C.G.C. has submitted that not only the Doctors of the appellant had assessed the physical disability, but as an ideal employer the appellant had also assisted the respondent No.1 in filing the claim petition and making their own assessment of the disability. Along with the filing of the claim petition they had also deposited the compensation amounting to Rs. 56,311/- in terms of their own assessment. 9. It is submitted that if the learned Commissioner had any ground to reject their assessment, it was incumbent on the learned Commissioner, to give an opportunity of hearing to the appellant in course of trial and to record the evidence of both sides before discarding the disability certificate issued by the appellant medical unit. 10. It is further submitted that it has been well settled by this Court in the case of National Insurance of India Vs. 10. It is further submitted that it has been well settled by this Court in the case of National Insurance of India Vs. Bimal Nath, (2009) 1 GauLT 370 , that the Commissioner is required to award the compensation by arriving at a definite finding as to the loss of capacity of earning with regard to any employment could have undertaken and moreover it is also well settled that interest was required to be paid with effect from commission of default i.e. one month after the award availed by the employer failed to make payment of the awarded sum. 11. It is submitted that their assessed award was deposited along with the filing of the claim petition. Moreover, the award of interest from the date of accident was contrary to the well settled principles of law. 12. Having heard the learned C.G.C. this Court has perused the LCR. 13. It is seen that the claim petition dated 06.08.2007 and letter of forwarding bank draft on account of compensation is dated 12.12.2007. The record does not reveal the existence of any order sheet of registering the WC Case No.74/07. As per the LCR, the first order was passed on 04.02.2008 and as per the said order direction was issued for registering the case under the Workmen's Compensation Act. Under the circumstances it is not known how the case could be registered in the year 2007 when the order of registering the claim petition was passed on 04.02.2008. 14. The submission made by the learned C.G.C. is found to be correct that no opportunity of contesting the case was provided to them and the learned Commissioner without requiring any evidence to be taken on record, awarded the compensation without framing any issue and without recording his finding as to whether the workman in question suffered any permanent disability. The order does not reveal the recording of satisfaction of the learned Commissioner and no reason has been assigned for discarding the medical certificate issued by the Medical Officer of the appellant. 15. The second order dated 12.02.2008 was passed for releasing a sum of Rs. 56,311/- to the claimant. The third order dated 28.04.2008 was passed to record that the appellant had deposited after a sum of Rs. 96,644/- with a request not to disburse the amount as the appellant had decided to file an appeal. 15. The second order dated 12.02.2008 was passed for releasing a sum of Rs. 56,311/- to the claimant. The third order dated 28.04.2008 was passed to record that the appellant had deposited after a sum of Rs. 96,644/- with a request not to disburse the amount as the appellant had decided to file an appeal. It is further recorded therein that unless the stay order is produced within 15 days the deposited sum would be released. 16. It is seen that in the present case no evidence was recorded, and no satisfaction of the learned Commissioner was recorded as to the percentage of physical disability of the respondent No.1. Moreover, no reason has been assigned for accepting the permanent disability of 40% and rejection of the assessment done by the medical team of the appellant regarding the physical disability at 20%. 17. The impugned judgment and order dated 04.02.2008 suffers from the vice of noncompliance of principles of audi alterem partem and the award was passed without hearing the appellant. The award has been passed in total disregard of the provision of section 4 of the Workmen's Compensation Act, 1923 which requires that the loss of earning capacity is also required to be assessed by a qualified medical practitioner. 18. As no evidence of any of the parties are recorded and there is no pleading on record in so far as the appellant is concerned, there is no scope for any discussion of the evidence and pleading of the parties in the impugned judgment. In the present case as the loss of earning capacity was taken at 40%, however, in the substantial question of law No.1 as formulated on 12.05.2010, the quantum of 100% is reflected in the said question. Hence, it is deemed necessary to reframe the said substantial question. The reframed substantial question of law No.1 is now reads as follows:- 1. Whether the learned Commissioner is justified in taking the loss of earning capacity of the workman at 100% 40% on the basis of the disability certificate issued by the authority of Silchar Medical College and Hospital without there being any assessment of such loss of earning capacity by a registered Medical Practitioner as required under Section 4(1)(c)(ii) of the Workmen's Compensation Act, 1923? 19. 19. As it is the requirement of law under section 4 of the Workmen's Compensation, 1923 that the assessment of loss of earning capacity would be done by a qualified medical practitioner, accordingly, the said question is answered in the negative by holding that the learned Commissioner was not justified in assessing the loss of earning capacity at 40% without such assessment by a qualified medical practitioner. 20. In respect of substantial question of law No.2 it is well settled that the interest under section 4 A (3) of the Workmen's Compensation Act, 1923 is to be awarded from the date of default after adjudication and it is not from the date of accident. Therefore, the second substantial question of law is also answered in the favor of the appellant by holding that the interest is required to be awarded after one month from the time allowable from the date of adjudication and it is not payable from the date of accident in cases of injury. 21. It is held in the case of Golla Ranjanna V. Divisional Manager & Anr., (2017) 1 SCC 45 that the learned Commissioner, Workmen's Compensation is the last authority on facts. Accordingly, following the said ratio, this is a fit case for remanding the matter back to the learned Commissioner, Workmen's Compensation for fresh adjudication in accordance with law. 22. This order of remand is in consonance with Order XLI Rule 23 A CPC. 23. Accordingly, the impugned judgment and award dated 04.02.2008 passed by the learned Commissioner, Workmen's Compensation, Silchar in W.C. Case No. 74/2007 is set aside and the matter is remanded back to the learned Commissioner, Workmen's Compensation, Cachar, Silchar for fresh adjudication. On receipt of records, the learned Commissioner shall give opportunity of hearing to both sides by allowing the parties to submit their pleadings and by leading their evidence, if so advised. 24. The appellant who is duly represented by their learned Standing Counsel before this Court is directed to appear before the learned Commissioner, Workmen's Compensation, Cachar, Silchar on 05.03.2018 and by producing a certified copy of this order, shall seek necessary instructions from the said learned Commissioner. 25. As the impugned judgment has been set aside, the learned Commissioner, shall refund back the amount of Rs. 91,644/- (Rupees Ninety one thousand six hundred and forty four only) back to the appellant herein i.e. Union of India. 25. As the impugned judgment has been set aside, the learned Commissioner, shall refund back the amount of Rs. 91,644/- (Rupees Ninety one thousand six hundred and forty four only) back to the appellant herein i.e. Union of India. In so far, as the amount has already been disbursed to the respondent No.1, namely Kamrul Haque Laskar is concerned, the same would be subject to the outcome of the fresh adjudication by the learned Commissioner. 26. The appeal stands allowed to the extent as indicated above. 27. As it is an old pending case, the learned Commissioner may expedite the hearing on receipt of the record.