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2019 DIGILAW 961 (GAU)

National Insurance Company Limited v. Rana Ali

2019-08-29

ACHINTYA MALLA BUJOR BARUA

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JUDGMENT : Achintya Malla Bujor Barua, J. 1. Heard Ms. S. Roy, learned counsel for the appellant. Also heard Mr. S. Banik, learned Amicus Curiae and Mr. A.K. Hussain, learned counsel for the owner of the vehicle. 2. Being aggrieved by the judgment dated 01.04.2011 in Case No. WC 24/2006 of the Commissioner, Workmen's Employee's Compensation, Dhubri, the present appeal has been preferred. The only ground taken in the appeal is that the percentage of injury sustained by the workman had not been assessed by a proper authority, but the Commissioner of Workmen on its own took up the responsibility and assessed it to be 30%. 3. For the purpose, reliance has been placed on the pronouncement of this Court in New India Assurance Co. Ltd. vs. Sanjit Kumar and Another, (2000) 2 GLT 567 which has been held that power is not available with the Commissioner, meaning thereby, that power to assess the injury and the earning capacity is not available with the Commissioner. Technically the Insurance Company is ready in taking such ground, but the effect thereof is that although it was the case of injury of the year 2002 and the judgment is of the year 2011, the injured workman had not received any amount till date. 4. The condition of the injured workman can also be well imagined from the point that he could not even appear before the Court and later on, we are required to appoint an Amicus Curiae. We do not understand that if the amount of injury being assessed by the Commissioner was the sole ground why the Insurance Company would not show humanitarian gesture and offer some amount for the time being to the workman and got the matter remanded back immediately for a proper assessment of the percentage of injury by the proper authority. We express the said view inasmuch as, a part from the technical ground being taken, there is no other infirmity in the order of the Commissioner of the workmen, more particularly regarding the injury sustained by the workman or as regards his entitlement to compensation otherwise. 5. We express the said view inasmuch as, a part from the technical ground being taken, there is no other infirmity in the order of the Commissioner of the workmen, more particularly regarding the injury sustained by the workman or as regards his entitlement to compensation otherwise. 5. We also take note of that even though the percentage of the injury and loss of earning of capacity was assessed by the Commissioner of Workman, no material has been produced either by the Insurance Company or from the owner of the vehicle that injury so assessed was incorrect or it was in excess of what workman had actually suffered. Although technically by following the proposition laid down by this Court in New India Assurance Co. Ltd. vs. Sanjit Kumar and Another, (supra), the assessment of percentage of injury and loss of earning capacity could not have been made by the Commissioner and the matter ordinarily would require to have been remanded back for proper assessment by the appropriate authority but considering the fact that this was an injury of the year 2002 and now we are in the year 2019, we are of the view that even if it is remanded back for fresh assessment it would be technically difficult to do so because of the changes during the intervening years that may have taken place with regard to the physical state of the claimant. 6. By invoking the principle of law that an order of the Court should not require the parties to do something which would not be possible or which would be impractical, we refuse to interfere with the judgment dated 01.04.2011 in Case No. WC 24/2006 of the Commissioner, Workmen's Employee's Compensation, Dhubri. 7. The appeal stands disposed of in the above manner. 8. Before parting with the record, we appreciate the valuable service rendered by Ms. S. Roy, learned Amicus Curiae. Accordingly, it is directed that an amount of Rs. 7,500/- as legal fees be paid to him by the High Court Legal Service Committee upon production of a copy of his judgment and order.