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2019 DIGILAW 554 (GAU)

United India Insurance Company v. Naren Deka

2019-05-07

SUMAN SHYAM

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JUDGMENT : 1. Heard Ms. M. Choudhury, learned counsel for the appellant. I have also heard Mr. M. H. Rajbarbhuiya, learned counsel representing the respondent No.1/claimant. None has appeared for the respondent No.2 despite issuance of notice. 2. This appeal filed under section 30 of the Workmens Compensation Act, 1923 is directed against the judgment and award dated 24.05.2007 passed by the learned Commissioner, Workmens Compensation, Nagaon in connection with N.W.C. Case No.120/2001 whereby the learned court below has awarded a sum of Rs.1,71,234/- along with simple interest at the rate of 9% per annum from the date of the accident till realisation, to be paid to the respondent No.1 for the permanent disability and loss of earning capacity suffered by him. 3. The appeal was admitted to be heard by formulating the following two substantial questions of law :- "1. Whether the wages defined under Section 2(n) of the Workmen Compensation Act, 1923 include the daily allowances paid to the workman concerned? 2. Whether the amount awarded by the learned Commissioner, Workmen Compensation is in accordance with the provisions of the Workmen Compensation Act, 1923?" 4. The claimant/respondent No.1 was engaged as a driver in vehicle No.AS-02/6433 (609 Mini Bus), owned by the respondent No.2, which had met with an accident on 12.04.2001 at about 9.30 a.m. in the Dhing-Nagaon Road near Dhing Chamuagaon. A police case being Dhing P.S. Case No.28/2001 under sections 279/304A/337/338/427 IPC was registered. The respondent No.1 claims to have suffered injury in the accident as a result of which he was immediately shifted to the Dhing Civil Hospital wherein he had received treatment. Claiming that the injuries suffered by him in the accident had resulted into his permanent partial disablement leading to loss of earning capacity, the respondent No.1 as claimant, had filed the aforesaid claim case being N.W.C. Case No.120/2001 praying for payment of compensation. 5. During the course of trial, the doctor, who had treated the claimant as an outdoor patient viz., Dr. Durgeswar Borah, was examined as PW 2. In his deposition, the PW -2 had stated that the injuries suffered by the claimant are mentioned in Exhibit-8 i.e. the disablement certificate, according to which, there was swelling tenderness on the right ankle, tenderness on the left wrist and tenderness on the L.S. spine. Durgeswar Borah, was examined as PW 2. In his deposition, the PW -2 had stated that the injuries suffered by the claimant are mentioned in Exhibit-8 i.e. the disablement certificate, according to which, there was swelling tenderness on the right ankle, tenderness on the left wrist and tenderness on the L.S. spine. It was also deposed by the PW-2 that the claimant had developed "Sciatica syndrome" which has lead to 25% of permanent disablement thereby reducing his earning capacity by about 40%. 6. Taking note of the materials available on record including the evidence adduced by the doctor (PW 2) the learned Commissioner had reached the conclusion that the loss of earning capacity suffered by the claimant would entitle him to compensation. As such, taking the age of the claimant to be 32 years on the date of accident and his salary to be Rs.3500/- per month, a sum of Rs.1,71,234.00 (Rupees One Lakh Seventy-One Thousand Two Hundred and Thirty-Four) along with interest as mentioned above has been awarded by the learned Commissioner in favour of the respondent No.1 by the judgment and order under challenge. 7. It is submitted at the bar that at the stage of admission of this appeal a sum of Rs.50,000/-, out of the awarded amount, had been deposited by the appellant Insurance Company and the said amount has also been withdrawn by the claimant. 8. By placing reliance on a decision of this court rendered in the case of Oriental Insurance Co. Ltd. vs. Bimal Pathar reported in (2018) 5 SCC 172 Ms. Choudhury submits that compensation for loss of earning capacity cannot be worked out on the basis of mere guess work of the doctor based on his whims, without there being any material on record to support the same. It is also the submission of the learned counsel for the appellant that the allowances earned by the claimant ought not to have been taken to be a part of the salary of the claimant while calculating the amount of compensation payable in this case. 9. Refuting the aforesaid argument, Mr. It is also the submission of the learned counsel for the appellant that the allowances earned by the claimant ought not to have been taken to be a part of the salary of the claimant while calculating the amount of compensation payable in this case. 9. Refuting the aforesaid argument, Mr. Rajbarbhuiya, learned counsel for the claimant/respondent No.1, submits that the plea sought to be raised by the appellant before this Court was never urged before the learned Commissioner nor has the appellant put any questions to the witness (PW-2) so as to enable him to explain the basis of his assessment on the extent of loss of earning capacity of the claimant. Under the circumstances, submits Mr. Rajbarbhuiya, the questions of law sought to be raised by the appellant may not be entertained by this court at this distant point of time keeping in mind the beneficial object of the Act of 1923. 10. I have considered the submissions made by the learned counsel for the parties and have also gone through the materials available on record. 11. In so far as the first question urged by the appellant is concerned, it is to be noted herein that in the decision relied upon by the appellants counsel rendered in the case of Bimal Pathar (supra), the learned Single Judge has clearly held that daily allowances earned by the workman can be construed to be part of the salary for the purpose of computing compensation. Since the said decision has been relied upon by the appellant and considering the observations made by the learned Single Judge in paragraph 12 of the judgment, the first substantial question of law stands answered against the appellant and in favour of the respondent No.1. 12. Coming to the next substantial question of law, it is to be noted herein that the doctor PW-2 has not only given his opinion as regards the nature of injuries suffered by the claimant but has also opined that the loss of earning capacity suffered by him was to the extent of 40%. The appellant had the opportunity to cross-examine the PW-2 but nowhere has the appellant posed any question to the said witness as regards the basis on which such assessment has been made. The appellant had the opportunity to cross-examine the PW-2 but nowhere has the appellant posed any question to the said witness as regards the basis on which such assessment has been made. Not only that, the appellants counsel had not even challenged the opinion given by the doctor PW -2 by making any suggestion during the cross-examination that his opinion was not based on any cogent material available on record. Notwithstanding the same, the appellant has taken a ground before this Court that the basis on which the PW-2 had given his opinion is non-existent. 13. Although it is true that exercising jurisdiction under section 30 of the Workmens Compensation Act, 1923 this Court acts as the court of first appeal and would be entitled to re-appreciate the evidence so as to record a finding on the issues framed in the proceeding, yet, in exercise of such appellate jurisdiction, this court would not entertain a factual dispute which was not specifically raised by the parties at the stage of trial. As mentioned above, during cross-examination of the doctor PW-2, no suggestion was made by the counsel for the appellant to the effect that the opinion given by him as regards the nature of injury or the extent of loss of earning capacity or loss of earning capacity was incorrect. As such, the testimony of the PW-2, on the above count, must be held to have remained unimpeached during his cross-examination. Such being the position, the learned Commissioner, in the opinion of this Court, was well within his jurisdiction and competence to rely upon such testimony of the PW-2 and form an opinion leading to the judgment and award dated 24.05.2007. 14. Although by relying upon the decision in the case of Bimal Pathar (supra) Ms. Choudhury has strenuously urged that no guess work by the doctor would be permissible in such matters, yet, I find that in that case even the X-ray report based on which the doctors opinion was given, was not brought on record to show the nature of injuries. It was in such fact situation that this court had made the relevant observation in paragraphs 10 and 11 holding that doctors opinion merely on guess work and whims without any supporting materials would not be tenable. It was in such fact situation that this court had made the relevant observation in paragraphs 10 and 11 holding that doctors opinion merely on guess work and whims without any supporting materials would not be tenable. However, in the present case, not only is the X-ray report available on record but the other medical testimonies including the disability certificate were also produced by the claimant during trial. However, such evidence were not assailed by the appellant during the course of trial. Such being the position, I am of the view that the second substantial question of law urged by the appellants counsel also cannot be entertained by this court. 15. In view of the discussions made herein above, this appeal is held to be devoid of any merit and the same is accordingly dismissed. The appellant to take steps for release of the balance amount involved under the award within six weeks, after adjusting the amount already paid to the claimant/respondent No.1. Send back the LCR. No order as to cost.