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2019 DIGILAW 1051 (GAU)

National Insurance Co. Ltd. v. Iman Ali

2019-09-17

ACHINTYA MALLA BUJOR BARUA

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JUDGMENT : Achintya Malla Bujor Barua, J. Heard Mr. A. Dey, learned counsel who appears on instruction from Mr. R. Sarma, learned counsel who originally appeared for the appellant Insurance Company. It is stated that Mr. R. Sarma has in the meantime been appointed as a Member of the Foreigners Tribunal and therefore, he is not appearing any further in the matter. Mr. A.U. Ahmed, learned legal aid counsel appears for the claimant respondent. 2. A claim was filed before the Commissioner, Workmen's Compensation, Tezpur bearing W.C. Case No 12/2008 in respect of the injury sustained by the claimant in an accident that took place on 22.12.2006 in respect of vehicle No.AS-21/3248 of which the claimant was an employee. In the proceeding before the Commissioner, the claimant workman examined himself as PW-1 and deposed that he was employed as a labourer by the owner in truck bearing No.AS-21/3248 for the purpose of loading and unloading of goods. For the employment, he was paid a salary of Rs.4,000/- per month and Rs.50/- as daily allowance. He further deposed that while he was performing his duties as a labourer, the truck met with an accident on 22.12.2006 and as a result, the claimant sustained injuries. 3. Pw-2 who was the doctor who attended to the injuries of the claimant deposed that as a result of the injuries, the claimant had developed osteoarthritis of his hip joint, because of which he has difficulty in working. PW-2 the doctor deposed that the claimant had developed 35% physical disability which was permanent in nature and as a result he had a loss of 45% of his earning capacity and because of the injuries sustained, the claimant would have difficulty in doing his earlier job. In cross examination, the core evidence led by the doctor had not been confronted other than putting a view that he was not a oethopaedic surgeon or that the type of injury that the claimant had sustained may also be suffered by falling on a hard substance and further that because of the nature of treatment he received the condition of the injured got aggravated. 4. 4. When there is a specific evidence that the injuries had resulted because of the accident, a mere suggestion that the similar injury can also be obtained by falling on hard substance cannot by itself be said to have demolished the evidence led by the claimant that the injury sustained by him had resulted because of the accident. Secondly, we find that the medical assessment that the claimant had suffered 35% physical disability which was permanent in nature and that he had a loss of his earning capacity by 45% had neither been confronted nor demolished. The insurance company takes a stand that in their evidence they have denied that the vehicle concerned had a valid insurance policy with them. The said stand is being taken by relying on the examination-in-chief of Arabinda Chakraborty, Administrative Officer of the Insurance Company who had deposed as DW-1. DW-1 deposed that the claim is not maintainable as no motor accident took place with regard to truck bearing No.AS-21/3248. The said stand of DW-1 in deposition is contrary to the other evidence available on record more particularly, the police report etc. and from such point of view, it can also be construed that DW-1 had given false evidence before the Court. Be that as it may, it was further deposed by DW-1 that in spite of his best search in their office, he could not find out any document to show that the vehicle was insured with the appellant Insurance Company. 5. To this extent we have taken note of that it is the specific stand of the claimant and also revealed from the accident information report that the vehicle concerned was insured with the appellant insurance company vide Policy No.200200/31/06/670000403 at Jorhat branch which was valid up to 29.04.2007. In this respect we have taken note of that the accident took place on 22.12.2006 and therefore, it was within the validity period of the said insurance policy. When the claimant had provided the specific information as regards the policy number and the branch from with which the policy was obtained, which again finds place in the accident information report of the authority, it was for the insurance company to either specifically deny the existence of such policy or accept the same to have been issued by them. When the claimant had provided the specific information as regards the policy number and the branch from with which the policy was obtained, which again finds place in the accident information report of the authority, it was for the insurance company to either specifically deny the existence of such policy or accept the same to have been issued by them. There cannot be an in between stand by DW-1 that inspite of his best search in their office he could not trace out the document and such statement of DW-1 cannot be treated to be an evidence indicating that there was no such policy being issued. 6. By the judgment and order dated 31.12.2010, the Commissioner, Workmen's Compensation had awarded compensation of Rs.2,35,947/- with further interest of 12% per annum for the delay if any, in making the payment. The present appeal has been preferred against the said judgment by the appellant insurance company reiterating their stand that firstly no accident had taken place and secondly, there was no valid policy issued by them. As indicated above, the materials available on record does not support either of the two grounds. The accident information report, police report as well as evidence of the claimant clearly reveals that the accident had taken place on 22.12.2006 in respect of vehicle No.AS21/3248 and therefore, the ground taken by the insurance company that no such accident took place is found to be unsustainable. As regards the other ground taken that no valid insurance policy was issued by them, we find that the evidence to that aspect by DW-1 is found to be inadequate to arrive at any such conclusion. In the absence of any specific evidence being brought on record that the policy indicated therein was not issued by the appellant insurance company, merely because DW-1 failed to find out the policy in their office, cannot be a reason to arrive at a conclusion that no such policy was issued. Accordingly, we do not find any merit in the appeal and the same stands dismissed. 7. From the records of the Commissioner, Workmen's Compensation we do not find any information as to how much of the awarded amount had been paid by the insurance company nor the insurance company is able to provide us with the information. Accordingly, we do not find any merit in the appeal and the same stands dismissed. 7. From the records of the Commissioner, Workmen's Compensation we do not find any information as to how much of the awarded amount had been paid by the insurance company nor the insurance company is able to provide us with the information. Accordingly, it is directed that if any payment had been made in the meantime, the insurance company shall pay the balance of the awarded amount to the insured claimant workman within a period of six weeks from today along with the interest of 12% awarded by the Commissioner till the date of actual payment. If some amount had already been deposited but not withdrawn by the claimant, the claimant would be at liberty to withdraw the same. In doing so, if the amount was deposited in the Office of the Commissioner, Workmen Compensation Tezpur, and the amount had not been withdrawn by the claimant till date, the office of the Commissioner shall pay the claimant workman the amount of interest that had accrued from the date of deposit till the date of payment. The appeal stands dismissed. Before parting with the record, we appreciate the valuable services rendered by Mr. A.U. Ahmed, learned legal aid counsel. Accordingly, it is directed that an amount of Rs.7,000/- be paid to him for appearing in the final hearing by the State Legal Service Authority upon production of a copy of this order as provided in the notification dated 19.07.2016.