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2018 DIGILAW 7 (GAU)

National Insurance Co. Ltd. v. Basanta Sarma

2018-01-03

KALYAN RAI SURANA

body2018
JUDGMENT : Kalyan Rai Surana, J. Heard Ms. S. Roy learned counsel for the appellant as well as Mrs. S.D. Saikia learned counsel for the respondent No. 1 and Mr. A.D. Choudhury learned counsel for the respondent No. 2. 2. This appeal under section 30 of the Workmen's Compensation Act, 1923 is directed against the judgment and award dated 20.08.2007 passed by the learned Commissioner, Workmen's Compensation, Guwahati in W.C. Case No. 77/2004. This appeal was admitted by order dated 07.01.2011 on the following substantial question of law:- (1) Whether the claimant who has renewed his driving license after the accident, the learned Commissioner was justified in coming to a finding that the claimant suffered temporary disability after the renewal of the license and awarded compensation? 3. The case of the respondent No. 1/claimant in brief is that he was working as a driver in Bus No. AS-15/2702 owned by the respondent No. 2 herein. On 30.01.2004 at about 8:30 pm, while ferrying passengers from Pathsala to Markha, the bus met with an accident at Birkale Chowk under Pathsala Police outpost and as a result of the accident, the respondent No. 1 sustained grievous injuries. He claimed that he was 35 years of age at the time of accident and was receiving monthly salary of Rs. 4800/- per month. 4. In the claim petition, the respondent No. 1 prayed for compensation at Rs. 1,50,000/- (Rupees One lakh fifty thousand only) with interest. The respondent No. 2 herein admitted the statements made by the respondent No. 1 and disclosed that his vehicle was duly insured with the appellant. The present appellant took usual pleas in the written statement and the onus of proving the claim was put on the respondent No. 1/claimant. 5. In support of his claim, the appellant examined himself as PW1 and exhibited the following documents:- 1. Medical Prescription (Exbt.1 to 5) 2. Medical Certificate (Exbt. 6 and 7) 3. X-Ray Report (Exbt.8) 4. Police Report (Exbt.9), 5. X-Ray plate (Exbt.10). 6. The Doctor who was then working as a Medical and Health Officer No. 1, Kumargaon S.D., was examined as PW-2. The appellant did not adduce any evidence. 7. Medical Prescription (Exbt.1 to 5) 2. Medical Certificate (Exbt. 6 and 7) 3. X-Ray Report (Exbt.8) 4. Police Report (Exbt.9), 5. X-Ray plate (Exbt.10). 6. The Doctor who was then working as a Medical and Health Officer No. 1, Kumargaon S.D., was examined as PW-2. The appellant did not adduce any evidence. 7. Referring to the evidence on record, it was held that as the percentage of loss of earning capacity of the injured had not been assessed by a qualified medical practitioner, the claimant was not entitled to compensation under section 4(1) (c) of the Workmen's Compensation Act. However, he was found to be entitled to the compensation under section 4(1) (d) of the said Act. It was held that the monthly salary of the respondent No. 1 was Rs. 4000/-, the duration of disability was taken to be 5 years and the compensation was computed as follows:- 50% x Rs. 4000 x 60= Rs1,20,000/- (Rupees One lakh twenty thousand only) 8. The direction was issued to make payment of the compensation within 30 days from the date of receipt of the order in default the appellant was made liable to pay interest on the amount of compensation at 9% with effect from the date of accident till the date of deposit. 9. The learned counsel for the appellant has referred to the cross-examination of PW-1, wherein it is admitted that "after the accident I have renewed the driving license upto 2007 for 3 years". 10. He has further admitted that the Doctor had not specifically mentioned in his certificate that he could not drive or could not do any other work. It is submitted that at the time of renewal of the driving license, the respondent No. 1 was required to declare his own fitness and such fitness was required to be certified by a qualified medical practitioner. Therefore, once the driving license was got renewed, it must be presumed that the respondent No. 1 was fit to hold a driving license and, as such, it is submitted that the assumption of disability for 5 years was without any valid reason. 11. Per contra, the learned counsel for the respondent No. 1 as well as the respondent No. 2 submits that the renewal of driving license was only a casual question put at the time of cross-examination. 11. Per contra, the learned counsel for the respondent No. 1 as well as the respondent No. 2 submits that the renewal of driving license was only a casual question put at the time of cross-examination. The driving license was neither called for by the appellant, nor the record of the DTO was called for and, as such, the provision of Workmen's Compensation Act, being a beneficial legislation, is required to be interpreted liberally and the award is not liable to be interfered with. 12. Moreover, it is submitted that the substantial question formulated is required to be recast because the question whether the claimant suffered temporary disability after the renewal of license is a question of fact and cannot be termed as a question of law. Therefore, it is submitted that as the learned Commissioner had assessed the compensation under section 4(1) (d) of the Workmen's Compensation Act, the issue raised by the appellant could not be a ground to negate the claim as well as the award passed by the learned Commissioner. 13. On a perusal of the record it appears that there is a specific admission by the respondent No. 1 (PW-1) that after the accident he had renewed his driving license. The renewal of driving license is done as per the requirement of section 50 of the Motor Vehicles Act, 1988. The Central Motor Vehicles Rules, 1989 prescribed for the form of application for renewal of license. A judicial notice can be taken of the fact that application for driving license, the fitness of the applicant is also certified by a medical practitioner. 14. Therefore, in light of the admission by the respondent No. 1 in his cross-examination that his license was renewed after the accident, as professional driving license is for a period of 3 years as per the section 14(2) (a) of the Motor Vehicles Act, 1988, the assessment of disability for a period of 5 years equivalent to 60 months is not sustainable. On a further perusal of the record, the Doctor who was working as a Medical and Health Officer, No. 1, Sarupeta PHC is found to mentioned in the Medical Certificate (Exbt.6) which is dated 02.02.2004, certifying that the X-ray showed the fracture of the metacarphyl of the right hand bone. On a further perusal of the record, the Doctor who was working as a Medical and Health Officer, No. 1, Sarupeta PHC is found to mentioned in the Medical Certificate (Exbt.6) which is dated 02.02.2004, certifying that the X-ray showed the fracture of the metacarphyl of the right hand bone. The said certificate is not prima-facie admissible because as per the X-ray plate (Exbt.8), it appears that the said X-ray was taken on 04.02.2004 and the Radiologist report (Exbt.8) was also given on 04.02.2004. Therefore, the entries made in the Medical Certificate dated 02.02.2004 (Exbt.6) cannot be accepted as a correct entry. The correctness of the said report having not found to be satisfactory, it would be open for the appellant to take such steps as had been advised for causing an inquiry into the correctness of the said certificate. 15. Having seen that the original license had not been exhibited and the appellant did not take any steps for calling of the relevant records of the DTO to prove their stand, this is not a case wherein this Appellate Court can give its own finding on the period of the disability suffered by the respondent No. 1. 16. It is a well settled law that if a party to be case admits and the statements in the course of cross-examination, no additional proof is required to the fact as in the present case, the respondent No. 1 had renewed his driving license after the accident. Therefore, the only fact which requires to be determined is the date of such renewal so that the period of temporary partial disablement can be determined. In the absence of the date of renewal of the license this Court does not like to venture into that aspect of the matter. 17. In this regard this Court relies on the ratio laid down by the Hon'ble High Court in the case of Golla Ranjanna v. Divisional Manager & Anr., (2017) 1 SCC 45 , wherein it has been held that the Commissioner, Workmen's Compensation is the last authority of facts. 18. In view of the above that the respondent No. 1 is found to have admitted in his cross-examination for the renewal of his driving license after the accident, this Court is of the considered view that the substantial question of law was correctly framed by this Court and does not require any re-consideration. 19. 18. In view of the above that the respondent No. 1 is found to have admitted in his cross-examination for the renewal of his driving license after the accident, this Court is of the considered view that the substantial question of law was correctly framed by this Court and does not require any re-consideration. 19. The said question is answered in the negative and in favour of the appellant by holding that in view of the specific admission made by the respondent No. 1/claimant as PW1 that he had renewed his driving license after the accident, the learned Commissioner had not justified in assuming that the period of disability remained for a period of 5 years except finding is not in accordance with the evidence on record. 20. Hence, this Court has no hesitation in setting aside the impugned judgment and award dated 20.08.2007 passed by the learned Commissioner, Workmen's Compensation, Guwahati in WC Case No. 77/04. 21. However, in view of the ratio laid down in the case of Golla Ranjanna (Supra) it is found to be a fit case for remanding the matter back to the learned Commissioner, Workmen's Compensation, Guwahati who would hear the matter fresh by giving fresh opportunity to all sides to prove their respective stand by adducing fresh evidence. 22. This order of remand is under Order 41, Rule 27 A CPC. 23. Accordingly, this appeal stands allowed to the extent as indicated above. The parties who are duly represented by the learned counsels would appear before the learned Commissioner, Workmen's Compensation, Guwahati on 28.02.2018 and by producing a certified copy of this order the parties shall seek further instructions from the said learned Commissioner. 24. Accordingly, the impugned order dated 20.08.2007 passed by the learned Commissioner, Workmen's Compensation, Guwahati in WC Case No. 77/04 is set aside and the matter is remanded back. 25. Send down the LCR forthwith. 26. There shall be no order as to cost.