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2020 DIGILAW 376 (GAU)

Orientalinsurance Co. Ltd. v. Jogdur Rahman

2020-03-12

ACHINTYA MALLA BUJOR BARUA

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JUDGMENT Achintya Malla Bujor Barua, J. - Heard Mr. SK Goswami, learned counsel for the appellant. By the order dated 02.01.2020, notice on the workman respondent No.1 was accepted to have been served by drawing presumption under the General Clauses Act. LCR has also been received. None appears for the respondents. Considering the factor that this is an appeal of the year 2009, we intend to proceed with the hearing in the absence of the respondent No.1. 2. A claim was made u/s 4(1)(c) of the Workmen''s Compensation Act in respect of an accident that took place on 28.05.2002 while the offending vehicle of which the respondent No.1 was a driver was proceeding from Nagaon to Dibrugarh with a load of cement. By the award dated 04.02.2009, the Commissioner, Workmen''s Compensation, Nagaon in N.W.C Case No.155/2002 had awarded a compensation of Rs.75,571/- including interest in favour of the respondent No.1. Against the said award dated 04.02.2009, this appeal has been preferred by the appellant Insurance Company. 3. Two grounds were urged upon in the appeal. The first being that the component of allowances in the wages of the workman cannot be included for determining the compensation and secondly, medical evidence could not determine the loss of earning capacity of the workman and therefore, there was a guess work made by the Commissioner himself without there being any evidence on record. 4. As regards the first ground, Mr. SK Goswami, learned counsel for the appellant Insurance Company fairly states that in the meantime in its decision in Mohd. Ameeruddin and another vsUnited India Insurance Company Limited and another, (2011) 1 SCC 304 , the Supreme Court had laid down the proposition that even the component of allowances is included for determining the salary/wages for the purpose of determining the amount of compensation to be awarded to a workman, amongst others. 5. As regards the second ground, Mr. SK Goswami, learned counsel for the appellant Insurance Company takes us through the evidence of PW-2 Dr. Jadav Sarma, wherein in cross examination, it was deposed that the respondent No.1 workman had suffered injuries in his chest and fracture of clavical and because of that although the shoulders can be moved, but he cannot assess as to what extent the workman had lost his earning capacity. Jadav Sarma, wherein in cross examination, it was deposed that the respondent No.1 workman had suffered injuries in his chest and fracture of clavical and because of that although the shoulders can be moved, but he cannot assess as to what extent the workman had lost his earning capacity. Accordingly, the evidence on record does not disclose the loss of earning capacity of the respondent No.1 workman and the Commissioner in the award had made his own assessment as regards the loss of earning capacity at 20% without there being any material on record. 6. Law in this respect has been settled in United India Insurance Company Ltd. vs- Abdul Ali (Md.) & Anr, (2015) 2 GauLT 885 , wherein in paragraphs 3 and 4, it has been held as follows:- wxyz 3. Mr. A. Sarma, learned counsel for the appellant would argue that obviously there was no evidence by any qualified medical practitioner to ascertain the loss of earning capacity of the victim. Even the certificate exhibited as Exhibit-17 is silent about the magnitude of physical disability of the claimant. The W.C. Commissioner took up the cudgel in his own hand and made the assessment by himself merely at the ipse dixit of the claimant. This according to the learned counsel for the appellant is clearly contrary to the law laid down under Section 4 (1)(c) (ii) of the W. C Act, 1923. He has placed reliance on two judgments of this Court as follows: zyxw wxyz i) National Insurance Company Ltd. Vs. Ismaeli & Anr, (2010) 1 GauLT 571 : (2009) 6 GLR 669 zyxw wxyz ii) Oriental Insurance Company Ltd. Vs. Laliane Swomi & Anr., 2010 2 GauLT 399 . In both these judgments the Hon''ble Single judges held that in the absence of evidence by a qualified medical practitioner W.C. Commissioner himself cannot asses the loss of earning capacity of a claimant. zyxw wxyz 4. I have perused the judgment and the copy of documents provided by the learned counsel for the parties. I have perused Exhibit-17, medical certificate. Medical certificate is conspicuously silent about the quantum of permanent disability and magnitude of the loss of earning capacity of the injury sustained by the claimant. zyxw wxyz 4. I have perused the judgment and the copy of documents provided by the learned counsel for the parties. I have perused Exhibit-17, medical certificate. Medical certificate is conspicuously silent about the quantum of permanent disability and magnitude of the loss of earning capacity of the injury sustained by the claimant. The judgment shows that WC Commissioner himself made the assessment in contravention of the law laid down by this court in the aforesaid and other judgments apart from clear and unambiguous recital in Section 4(1)(c) (ii) of the Workmen''s Compensation Act, 1923. The judgment, therefore, is vitiated by jurisdictional error. It is accordingly set aside. zyxw 7. As the Commissioner is not empowered to decide on the loss of earning capacity of an injured workman, we are of the view that the award dated 04.02.2009 of the Commissioner, Workmen''s Compensation, Nagaon in N.W.C Case No.155/2002 would be unsustainable as the loss of earning capacity of the respondent No.1 workman was made by the Commissioner without there being any material on record to arrive at such conclusion. 8. Accordingly, the award dated 04.02.2009 in N.W.C Case No.155/2002 is set aside and the matter stands remanded back to the Commissioner, Workmen''s Compensation, Nagaon for a fresh adjudication after obtaining the required evidence on the question of loss of earning capacity of the respondent No.1 workman. As the respondent No.1 workman has not appeared before this Court and the matter is being remanded back, the Commissioner, Workmen''s Compensation, Nagaon shall issue notice to the workman for further proceeding. For the purpose, the appellant Insurance Company shall appear before the Commissioner, Workmen''s Compensation, Nagaon on 22.04.2020 and the matter be decided within a period of two months thereafter. 9. As the appellant Insurance Company had deposited an amount of Rs.37,786/- before the Registry of this Court, the same amount be allowed to be withdrawn by the appellants. 10. The appeal stands allowed to the extent indicated above. Send back the LCR immediately.