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2018 DIGILAW 321 (GAU)

Oriental Insurance Co Lts v. Munindra Bharali

2018-02-20

KALYAN RAI SURANA

body2018
JUDGMENT : KALYAN RAI SURANA, J. 1. Heard Mr. A. Ahmed, learned counsel for the appellant. None appears on call for the sole respondent/claimant. 2. This appeal under Section 30 of the Workmen's Compensation Act, 1923 has been filed against the judgment and award dated 26.03.2003 passed by the learned Commissioner, Workmen's Compensation, Guwahati in W.C. Case No. 89/2002, by which a compensation of Rs. 2,24,618/- was awarded to the respondent on account of injuries sustained in a road traffic accident which occurred on 31.03.2002. By order dated 10.01.2018, this Court had proposed to hear this appeal on the following substantial question of law: (i) Whether the percentage of physical disability and the percentage of loss of earning capacity assessed by PW.2 on the very date of the accident could have formed the basis for arriving at the compensation amount? (2) Whether grant of interest from the date of filing of the application is sustainable in law? 3. The case as projected in the claim petition in brief is that the respondent No. 1 claimed to employed by one Sri Bilash Chandra Bharali (O.P. No. 1 in the claim petition) as a driver of bus bearing registration No. AS-25/7979. While plying the bus with passengers from Guwahati towards Barpeta on 31.03.2002 at about 12.15 PM, the bus met with an accident at Hajo under Hajo P.S. in the district of Kamrup due to brake failure. As a result of the accident, the driver of the vehicle sustained grievous injuries. In view of the accident, a case, being Hajo P.S. Case No. 7/2002 under Sections 273/337/338/427 IPC was registered. The respondent had claimed that he was getting monthly salary of Rs. 4,500/- per month and he was 27 years old at the time of the accident and that the bus was duly insured with the appellant. The owner of the vehicle did not contest the case. However, the appellant who was the opposite party No. 2 in the claim petition, filed their written statement and by denying the contents of the claim petition, the respondent was put to strict proof of their claim. 4. Although no issues were framed for trial, the respondent examined himself as PW.1 and the Doctor who had issued the Injury Report (Exbt.6) has examined as PW.2. 4. Although no issues were framed for trial, the respondent examined himself as PW.1 and the Doctor who had issued the Injury Report (Exbt.6) has examined as PW.2. the respondent exhibited the following documents, viz., Prescriptions (Exbt.1 to 4), X-Ray Report (Exbt.5), Injury Report (Exbt.6), Accident Information Report (Exbt.7). 5. The learned Commissioner, on appreciating the evidence on record, held that the respondent was earning a salary of Rs. 4,000/- per month and relied on the Injury Report (Exbt.6) wherein the Doctor had found physical disability of 50% and loss of earning capacity at 45% as well as in the statement of the Doctor that the respondent could not be able to drive motor vehicle for the injury sustained. As per Doctor's evidence, the age of the claimant was taken to be 30 years as on 31.03.2002 and taken into account the monthly salary of Rs. 4,000/- per month, the compensation was computed as follows: 60% of Rs. 4,000/- X 207.98 X 45% = Rs. 2,24,618/-. In addition to the said amount, the respondent was held to be entitled to get interest @ 9% p.a. from 30.04.2002 i.e. date of filing of claim petition till payment. It was ordered that compensation of Rs. 2,24,618/- be deposited by the appellant within a period of 30 days. 6. The learned counsel for the appellant submits that the Doctor (PW.2) did not take into consideration whether loss of earning capacity was in relation to any employment which the respondent could have undertaken and it is also submitted that the accident had occurred on 31.03.2002 and though the Injury Report (Exbt.6) was issued on 12.06.2002, the Doctor (PW.2) had mentioned that he had examined the respondent on 31.03.2002 and, as such, it is submitted that the Doctor (PW.2) could not have certify 40% physical disability and 50% loss of earning capacity on the date of the examination, which is the date of the accident also. In support of his submissions, the learned counsel for the appellant has relied on the following cases, (i) Oriental Insurance Co. Ltd. Vs. Mohd. Nasir & another, (2009) 6 SCC 280 , (ii) New Indian Assurance Co. Ltd. Vs. Sreedharan, (1995) ACJ 373, (iii) C. David Vs. Govind Chandra Mishra & another, 1997 1 TAC 873 (Orissa), (iv) New India Assurance Co. Ltd. Vs. Smt. Kulwant Kaur & Ors.,2000 1 TAC 379 (MP) and New Indian Assurance Co. Ltd. Vs. Mohd. Nasir & another, (2009) 6 SCC 280 , (ii) New Indian Assurance Co. Ltd. Vs. Sreedharan, (1995) ACJ 373, (iii) C. David Vs. Govind Chandra Mishra & another, 1997 1 TAC 873 (Orissa), (iv) New India Assurance Co. Ltd. Vs. Smt. Kulwant Kaur & Ors.,2000 1 TAC 379 (MP) and New Indian Assurance Co. Ltd. Vs. S.K. Safique & another,2002 3 TAC 131 (Cal.) 7. The substantial question of law No. 1 is taken up first. A perusal of the documents exhibited, especially the Injury Report (Exbt.6) reflects that although the certificate was issued on 12.06.2002, Doctor (PW.2) had referred to his examination of the respondent on 31.3.2002 where he had found three injuries on the respondent, which are as follows: (i) A contusion on left elbow joint. X-ray examination shows fracture of lower end of left humerous, also called supercenlyler fracture. (ii) A bruise on frontal regional scalp. (iii) A lacerated would on right foot. 8. It is noted with concern that the Doctor (PW.2) did not take the responsibility of stating the status of the respondent on the date of examination i.e. on 12.06.2002, rather he has referring to the examination of 31.03.2002. Naturally, when an accident is suffered on 31.03.2002, the respondent will have certain discomfort on the same day, but as the Doctor (PW.2) has not stated that on 12.06.2002, the respondent was still suffering any disability, the Injury Report (Exbt.6) does not qualify the respondent to have suffer permanent partial disability within the meaning of section 4(1)(c)(ii) of the Workmen's Compensation Act. The correctness of the contents of the certificate dated 12.06.2002 (Exbt.6) is highly questionable. The X-Ray report on record which is marked as Exbt.5 shows that at least the X-Ray report was prepared on 01.04.2002. Therefore, on 31.03.2002 when the Doctor (PW.2) had examined the respondent, there was no X-Ray Report on record, as such, the Doctor (PW.2) could not have certified that he had seen the X-Ray Report which did not exist on 31.03.2002. Therefore, on 31.03.2002 when the Doctor (PW.2) had examined the respondent, there was no X-Ray Report on record, as such, the Doctor (PW.2) could not have certified that he had seen the X-Ray Report which did not exist on 31.03.2002. Hence, the contents of the Injury Report (Exbt.6) has to be completely disregarded as inadmissible because of the aforesaid discussed two reasons, viz., (i) the Doctor (PW.2) did not take the responsibility of certifying that the disability of the respondent had continued on 12.06.2002, the date on which the Injury Report (Exbt.6) was issued, and (ii) in Injury Report dated 31.03.2003 (Exbt.6), the doctor had referred to X-Ray report, which itself came into existence on 01.04.2003. One more fact is revealed from the perusal of the prescriptions at Exbt.2, 3, 4 and X-Ray Report (Exbt.5) and the Injury Report (Exbt.6). All these exhibits contain a similar signature. Therefore, the Doctor (PW.2) appears to be author of the prescriptions, the X-Ray Report (Exbt.5) as well as the Injury Report (Exbt.6). The Doctor (PW.2) does not say in his evidence that apart from Doctor engaged in the Barpeta Civil Hospital he was also a Radiologist in the said hospital. Hence, in the absence of any statement by the Doctor (PW.2), it appears that the X-Ray Report (Exbt.5) was made for the purpose of creating evidence before the learned Commissioner, Workmen's Compensation. This observation is made because the X-Ray Plate itself is not found on record. In the opinion of this Court, the X-Ray Plate is the primary evidence and the X-Ray Report, in the opinion of this Court is merely a secondary evidence, which is nothing but the Doctor/Radiologist's reading of the X-Ray Plate. Therefore, in the absence of the X-Ray Plate on record, no value can be put to an X-Ray Report alone. Moreover, it has been settled by this Court in the case of National Insurance Co. Ltd. Vs. Bimal Nath, (2009) 2 GauLR 62 , that the assessment of disability must be after considering whether the loss of earning capacity would affect the loss of earning capacity on all work/employment which the injured could have carried out. The said exercise having not been done, the said Injury Report (Exbt.6) could not have been taken as a basis of holding that there was a definite loss of earning capacity. 9. The said exercise having not been done, the said Injury Report (Exbt.6) could not have been taken as a basis of holding that there was a definite loss of earning capacity. 9. In view of the discussion above, the substantial question of law No. 1 is decided in the negative and in favour of the appellant by holding that the percentage of disability and the loss of earning capacity assessed by Doctor (PW.2) on the very date of the accident could not be found the basis for arriving at a compensation amount. 10. Coming to the substantial question of law No. 2 as formulated above, this Court in the case of Anupama Singha , by relying on the cases of (i) National Insurance Co. Ltd. Vs. Mubasir Ahmed and another, (2007) 2 SCC 349 , (ii) Oriental Insurance Co. Ltd. Vs. Siby George and others, (2012) 12 SCC 540 and (iii) New Indian Assurance Co. Ltd. VS. Brisha Samura and others, (2013) 1 GauLR 158 , had held that interest shall be payable after one month from the date of judgment and award. This Court is bound by the said ratio. Hence, the substantial question of law No. 2 is answered in negative and in favour of the appellant by holding that the learned Commissioner had erred in law by imposing of paying interest from the date of the accident. 11. In view of the discussion above, the judgment and award dated 26.03.2003 passed by the learned Commissioner, Workmen's Compensation, Guwahati in W.C. Case No. 89/2002 is not found sustainable and the same is set aside. 12. It is submitted that pursuant to the order passed by this Court, a sum of Rs. 1,20,000/- has been deposited before the learned Commissioner, Workmen's Compensation, Guwahati and the same has been disbursed to the respondent. Needless to say that it would be open for the appellant to recover the said amount from the respondent. 13. This appeal stands allowed. The parties shall bear their own cost. 14. Let the LCR be returned forthwith.