Gauhati High Court
New India Assurance Co. Ltd vs Gopal Shill on 6 November, 2018
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM &
ARUNACHAL PRADESH)
MFA 103 of 2007
NEW INDIA ASSURANCE CO. LTD. .....Appellant
-Versus-
SRI GOPAL SHILL & ANR. .....Respondents
BEFORE HON'BLE MR. JUSTICE KALYAN RAI SURANA Advocates for the Petitioners : Mrs. M. Choudhury, Mr. S. Dutta, : Ms. R. Kaur.
Advocates for the Respondents : None appear.
Date of hearing and order : 06.11.2017.
JUDGMENT AND ORDER (Oral)
Heard Mrs. M. Choudhury, learned counsel for the appellant. None appears on call for the respondents although notice was served on them.
2. This appeal under Section 30 of the Workmen's Compensation Act, 1923 has been filed against the judgment and award dated 07.06.2007 passed by the learned Commissioner, Workmen's Compensation, Golaghat in W.C. Case No. 15/2005. The appeal has been admitted for hearing on the following substantial question of law by order dated 10.10.2007.
(i) Whether the Commissioner can assess the loss of earning capacity from his own?
(ii) Whether interest on default can be made payable from the date of accident?MFA 103/2007 Page 1 of 9
(iii) Whether insurance company is liable to pay penalty under Workmen's Compensation Act, 1923?
3. The brief facts of the case is that the respondent No. 1 is the driver of truck bearing registration No. AS-25-A-2997. On 24.06.2005 at about 10.30 PM while coming from Guwahati, at Lotabari on NH-37, an offending vehicle bearing registration No. AS-01-M-8605 came in a very high speed and dashed against his vehicle with full force. As a result of the accident, both the vehicles got damaged and the respondent No. 1 suffered the following injuries, (i) comminuted fracture of left femur shaft, (ii) chest injury and other injuries. He was given treatment at K.K. Civil Hospital, Golaghat from 25.06.2005 to 27.06.2005 as indoor patient. Thereafter, he was admitted at Assam Medical College Hospital, Dibrugarh on 28.06.2005 where he had undergone treatment till 01.07.2005. On 01.07.2005, he was admitted at a private Hospital at Dibrugarh and discharged on 09.07.2005. The fracture was set by fixing a 'K' Nail on 06.07.2005. He was discharged after 9 days as indoor patient with an advice slip to do ankle exercise, to keep the limb in Thomas splint for one month. His leg had been shortened because of resultant reduction of bones and he suffered pain all the time. The respondent No. 1 had projected that as a result of the accident, he had become permanently disabled and lost his earning capacity by 100%. As he did not receive any compensation from his employer, he had filed a case for compensation before the learned Commissioner, Workmen's Compensation. The respondent No. 1 i.e. the owner of the vehicle and the respondent No. 2 i.e. the insurer/appellant herein had contested the case by filing their respective written statement. The respondent No. 2, who is the owner of the vehicle had admitted in his written statement that the respondent No. 1 was the driver of the vehicle and at the time of the accident, he was on duty. He had stated that the respondent No. 1 had a valid driving licence and he was authorized to drive heavy motor vehicle. It was also admitted that he monthly income/salary of the respondent No. 1 was Rs.4,000/- per month excluding the daily allowance and the truck was playing with valid documents and insurance. In the written MFA 103/2007 Page 2 of 9 statement, the appellant took the usual plea and denied that the respondent No.1 had become permanently disabled.
4. In support of his case, the respondent No. 1 examined two witnesses. The respondent No. 1 examined himself as CW.1 and the Doctor as CW.2. The respondent No. 1 had exhibited following documents:
1). Accident Report (Exbt.1)
2). Certified copies of G.D.E. No. 514 dated 24.06.2005 (Exbt.2)
3). Discharge Certificate of K.K. Civil Hospital, Golaghat (Exbt.3)
4). Discharge Certificate of AMCH, Dibrugarh (Exbt.4)
5). Discharge Certificate of Archana Trauma & Orthopaedics Hospital & Research Centre (Exbt.3)
6). Diagnosis [Exbt.5(i)]
7). ORIF with K.Nail [Exbt.5(ii)]
8). Advice on discharge [Exb.5(iii)]
9). Cash expenditure statement with cash memos, bills, prescriptions and vouchers (Exbt.6 to 6)
10). Driving license (Exbt.7)
11). Certificate of physical disabilities issued by Dr. Syed Nazim Hussain, K.K. Civil Hospital, Golaghat (Exbt.8).
5. No defence evidence was given. The learned Commissioner on evaluating the evidence on record arrived at a finding that it was a case of personal injury suffered by the workman and he was entitled to compensation to the extent of his loss of earning capacity fixed in accordance with law. The learned Commissioner accepted the evidence of the respondent No. 1 wherein he had stated that he was bed ridden and unable to walk without support and his left leg has become shortened. Owing to the nature of injury, the learned Commissioner accepted the evidence of the Doctor (CW.2) by holding that the respondent No. 1 had suffered disability i.e. loss of functioning of left leg by 60% which was grievous and permanent in nature. Accordingly, the disability was accepted at MFA 103/2007 Page 3 of 9 60% and the loss of income/earning capacity was also assessed at 60%, as assessed by the Doctor (CW.2). The age of the respondent No. 1 was taken as 25 years, as mentioned in the discharge certificate of K.K. Civil Hospital, Golaghat and Assam Medical College Hospital, Dibrugarh. The monthly wages of the workman was taken to be Rs.4,000/- as per employer's certificate. The learned Commissioner held that the loss of earning capacity suffered by the respondent No. 1 was 60%. The total compensation was worked out as follows:
Rs.4,000/- X 60% X 216.91 = Rs.3,12,350/-.
6. The appellant was directed to deposit the said compensation amount within 30 days from the date of the award, failing which the amount would carry interest @ 9% per annum from the date of accident along with 50% penalty of the awarded amount.
7. The learned counsel for the appellant has submitted that in the present case, the Doctor (CW.2) did not assess the loss of earning capacity and therefore, there being no assessment of loss of earning capacity by the Doctor, it was not open to the learned Commissioner to assess the loss of earning capacity in the absence of any valid certificate to that effect. It is further submitted that the loss of earning capacity must be assessed not only on the basis of the income of the injured respondent No. 1 in his capacity as a driver, but such loss must be in relation to any other employment which the respondent No. 1 was able to carry out for his livelihood. It is further submitted that the appellant could not have been fastened the liability to pay penalty from the date of the accident and such award can only become due from the date of default in paying the liability arising out of award passed by the learned Commissioner.
8. In support of her argument, the learned counsel for the appellant relied on the order dated 03.01.2017 passed by this Court in the case of New India Assurance Co. Ltd. Vs. Paltu Sah & Ors., 2017 (1) GLT 214. By relying on the said judgment she submits that as the facts in both cases were similar, the MFA 103/2007 Page 4 of 9 substantial question framed by this Court in the present case can be answered in terms of such judgment rendered in the case of Paltu Sah & Ors (supra). It would be relevant to refer to paragraph 7 to 11 thereof, which is quoted below:
"7. This Court finds force in the argument of Mrs. Choudhury, which is based in the ratio laid down by this Court in the case of Sanjit Kumar (supra). By the said judgment, this Court has held as follows:-
"4. The Workmen's Compensation Act provides the mode and method to determine the compensation. The Court cannot adopt some mode or method which is not provided in the Act. In the portion of the award quoted above, the Court determined the percentage of loss of earning capacity at 50%. That power is not available with the Commissioner. So, this award shall stand quashed and the matter now shall go back to the Commissioner to assess the compensation afresh and in order to do that, he may even ask the doctor to appear before him and give his opinion with regard to percentage of loss of earning capacity."
8. In view of the said ratio as laid down by this Court, this Court is of the opinion that as regards the first substantial question of law, the Commissioner under the said Act does not have the power to make its own assessment of the loss of earning capacity of its own without there being any medical evidence in that regard and, as such, the first substantial question of law is answered in the negative and in favour of the appellant in terms of the ratio laid down in the case of Sanjit Kumar (supra).
9. As regards the second substantial question of law as to whether the interest on the compensation amount can be made payable from the date of accident, Mrs. Choudhury relies on the judgment of this Court in the case of Oriental Insurance Company Limited -Vs- Paren Narzary and another, reported in 2012 (4) GLT 718, wherein this Court has held that the starting point of interest of which the payment of compensation falls due and it cannot be made payable from the date of accident.
MFA 103/2007 Page 5 of 910. In that view of the ratio as laid down by this Court, this Court is of the opinion that the second substantial question of law be also decided in the negative and against the respondent No. 1 as it has already been held in the case of Oriental Insurance Company Limited (supra) that interest cannot be fastened from the date of accident.
11. In respect of the third substantial question of law, as to whether the Insurance Company can be fastened with the liability to pay penalty, Mrs. Choudhury relies in the case of Ved Prakash Garg -Vs- Premi Devi and others, reported in (1997) 8 SCC 1, wherein it has been held as follows:-
"19. As a result of the aforesaid discussion it must be held that the question posed for our consideration must be answered partly in the affirmative and partly in the negative. In other words the insurance company will be liable to meet the claim for compensation along with interest as imposed on the insured employer the Workmen's Commissioner under the Compensation Act on the conjoint operation of Section 3 and Section Act on the conjoint operation of Section 3 and Section 4A sub-additional amount of compensation y way of penalty imposed on the insured employer by the Workmen's Commissioner under Section 4(3).
(b) is concerned, however, the insurance company would not remain liable to reimburse the said claim and it would be the liability of the insured employer alone."
9. In the injury report (Exbt.8), the Doctor (CW.2) did not certify the loss of earning capacity of the respondent No. 1. This Court, in the case of New India Assurance Co. Ltd. Vs. Sanjit Kumar and another, 2000 (2) GLT 567 has held that the power to determine the percentage of loss of earning capacity is not available with the Commissioner. The relevant passage thereof is already quoted above. The ratio laid down in the case of Paltu Sah & Ors. (supra) was subsequently followed by this Court.
MFA 103/2007 Page 6 of 910. In view of above, on finding that the present case is similar on facts as the case of Paltu Sah & Ors. (supra), this Court is of the opinion that as regards first substantial question of law, that the learned Commissioner, Workmen's Compensation does not have the power to make its own assessment of the loss of earning capacity without there being a medical evidence to that effect as provided for in Section 4(i) (c)(ii) of the Workmen's Compensation Act, 1923. Hence, first substantial question of law is answered in the negative and in favour of the appellant by holding that the learned Commissioner, Workmen's Compensation does not have the power to assess the loss of earning capacity on its own.
11. Moreover, on the perusal of the material on record, it appears that although the respondent No. 1 had submitted the employer's certificate to show his income of Rs.4,000/- per month as salary excluding daily allowance, but the said document has not been exhibited for the reasons best known to the respondent No. 1. Therefore, as the said document has remained un-exhibited, there was no material before the learned Commissioner to hold that the respondent No. 1 was drawing a salary of Rs.4,000/- per month, notwithstanding the fact that there was no denial by the appellant herein because it is the burden of the claimant to prove his income.
12. As regards the second substantial question of law, this Court in the case of Oriental Insurance Co. Ltd. Vs. Paren Narzary and another 2012(4) GLT 718, it was held that the starting point of payment of interest on the awarded sum would commence on the date when the compensation become due. In the present case in hand, the learned Commissioner had directed the appellant to pay the compensation within 30 days from the date of the judgment and award. Hence, in the opinion of this Court, which is based on the ratio laid down by this Court in the case of Paren Narzary and another (supra), as followed in the case of Paltu Sah & Ors (supra), the onus of is paying interest on the awarded sum MFA 103/2007 Page 7 of 9 would arise only after expiry of 30 days from the date of the award as the injuries complained of in the present case is a non-schedule injury. In view of the discussion above, the second substantial question of law is answered in negative and in favour of the appellant by holding that the liability to pay interest on default would commence from the date on which the award was due for payment.
13. In respect of the third substantial question of law as to whether the insurance compensation is liable to pay penalty under Workmen's Compensation Act, 1923, the said question is well settled by the Hon'ble Supreme Court in the case of Ved Prakash Garg -Vs- Premi Devi and others, reported in (1997) 8 SCC
1. The relevant paragraph 19 is already quoted above. The said ratio was followed by this Court in the case of Paltu Sah & Ors (supra). In terms of the said ratio, this Court is of the view that the appellant cannot be fastened with the liability to pay penalty from the date of the accident and the award of penalty can only be made after such payment had become due. Hence, the third substantial question of law is also answered in the negative and in favour of the appellant.
14. Having answered all three substantial question of law in the manner as aforesaid, this Court is of the view that another question arises as to whether the compensation can be determined by this Court. In this connection, the Hon'ble Supreme Court in the case of Golla Ranjanna Vs. Divisional Manager, (2017) 1 SCC 45 has held that the Commissioner is the last authority of facts. Therefore, being bound by the said ratio, the matter is required to be relegated back to the learned Commissioner, Workmen's Compensation for assessment of compensation afresh by permitting both the parties to lead fresh evidence.
15. Accordingly, the impugned judgment and award dated 07.06.2007 passed by the learned Commissioner, Workmen's Compensation, Golaghat in W.C. Case MFA 103/2007 Page 8 of 9 No. 15/2005 is hereby set aside and this appeal is allowed by remanding the matter back to the said learned Commissioner as indicated above.
16. The learned counsel for the appellant submits that in the meanwhile the appellant had deposited the entire compensation amount of Rs.3,12,350/- before the learned Commissioner, Workmen's Compensation, Golaghat in terms of the award. It is provided that the said amount shall be adjusted against the final award which is to be passed afresh by the learned Commissioner, Workmen's Compensation, Golaghat after re-assessment the loss of earning capacity in the manner as indicated above. As the accident had occurred on 24.06.2005, the learned Commissioner, Workmen's Compensation, Golaghat shall make an attempt for an early disposal of the case.
17. The appellant is directed to appear before the learned Commissioner, Workmen's Compensation, Golaghat on 05.12.2017 and by producing the certified copy of this order, shall seek further instruction from the said learned Commissioner.
18. There shall be no order as to costs
19. Let the LCR be returned forthwith.
JUDGE Mkumar MFA 103/2007 Page 9 of 9