Calcutta High Court
New India Assurance Co. Ltd. vs Bishwanath Das And Anr. on 20 July, 1999
Equivalent citations: 2000ACJ1138
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, Actg. C.J. and M.H.S. Ansari, J.
1. This appeal under Section 30 of the Workmen's Compensation Act is directed against a judgment dated 7/20.2.1997 passed by the Commissioner, Workmen's Compensation, West Bengal (2nd court) in Claim Case No. 755 of 1995.
2. Although the matter has been listed under the heading application, as we find substantial question of law is involved in this appeal, we take up the matter for hearing and the same is being disposed of.
3. The fact of the matter lies in a very narrow compass. The applicant-respondent herein was a khalasi in vehicle No. WB-03-8097. While the said vehicle was going from Digha to Ranaghat there was a head-on collision in between the said vehicle and another vehicle coming from opposite direction as a result whereof, he sustained injuries on his neck, both legs, hands and shoulders. The claimant herein had examined a doctor, PW 2, who has assessed his injury as 100 per cent as the victim is unfit for the job of khalasi.
4. The learned Commissioner framed the following issues for his consideration: "Issue No. 7: Was there any accident arising out of and in course of the applicant's employment under the O.P. as alleged?
Issue No. 2: What was the actual age and rate of monthly wage of the applicant at the time of accident?
Issue No. 3: Has the applicant sustained any permanent partial disablement involving loss of earning capacity? If so, to what extent?
Issue No. 4: Is the insurance company, OP 2, liable to pay compensation?
5. Curiously enough issue Nos. 1 and 3 were taken up for hearing together and were disposed of by one para judgment which is as follows:
These two issues are taken up together as they are co-related and interlinked. The applicant has stated in his application that he was a khalasi of vehicle No. WB-03-8097 belonging to Kamal Banerjee. On 18.8.1994 at about 2.30 a.m. in the night there was a head-on collision with another vehicle coming from opposite direction in a place within Ranaghat P.S. The applicant received injuries on his neck, back, both shoulders and upper limbs. After the accident he was removed to Ranaghat Sub-Divn. Hospital, thereafter he was referred to J.N. Hospital at Kalyani, where he was treated as an indoor patient for 13 days. He has been using neck-belt as per advice of the doctor. Dr. M.N. Parbat, PW 2, has assessed 100 per cent disability as the applicant is unfit to work as khalasi. Exh. 5 goes to show that khalasi of Matador van was seriously injured. Hence, issue Nos. 1 and 3 should be decided in favour of the applicant. Therefore, issue Nos. 1 and 3 are decided in favour of the applicant.
6. The only substantial question of law which arises for consideration in this appeal is as to whether compensation has to be granted upon taking into consideration the provisions of Part I of the First Schedule made in terms of Section 2(1) and Section 4(1) of the Workmen's Compensation Act. It is true that the said list may not be exhaustive in the sense that the list of injuries stated therein would be deemed to result in permanent total disablement.
7. Mr. K.K. Das, learned counsel for the appellant has placed reliance upon a decision of a learned single Judge of Andhra Pradesh High Court in New India Assurance Co. Ltd. v. Sammayya alias M. Shankar , wherein upon taking into consideration various decisions of the Apex Court and other High Courts it was held:
Before the Amendment Act 22 of 1984, the law did not require that the loss of earning capacity of the applicant workman should be assessed by a qualified medical practitioner. The legislature in its wisdom thought it necessary and fit to make a provision, enabling the assessment of loss of earning capacity of the workman by a qualified medical practitioner and this amendment came into force with effect from 1.7.84. When the statute commands the Commissioner, who is the adjudicatory authority under the Act, to exercise power vested in him in a particular manner and subject to certain conditions statutorily laid, then the adjudicatory authority/ Commissioner is statutorily bound to follow the same and if there is any departure from the prescribed procedure or violation of the conditions, then it could be straightaway stated that the Commissioner has committed an illegality. At the same time, it should be noted that each and every violation of a condition or conditions or violation of rule or rules of procedure would not tantamount to commission of an error of jurisdiction. Even before the Amendment Act 22 of 1984, the Commissioner had jurisdiction to compute the compensation payable to an injured employee. The only change brought about by the Amendment Act 22 of 1984, providing for assessment of loss of earning capacity by a qualified medical practitioner is an amendment regulating only the procedure to be followed by the Commissioner and it is not an amendment restricting or abridging the Commissioner's power otherwise available to him under the provisions of the Act in the matter of determination of compensation payable to the workman under Section 4 of the Act.
8. While arriving at such conclusion the learned Judge has referred to Full Bench decision of the Kerala High Court in New India Assurance Co. Ltd. v. Sreedharan . By reason of Act 22 of 1984, the loss of earning capacity of the appellant workman should be assessed by a qualified medical practitioner. The said amendment, keeping in view the well-known doctrine of head and soul, must be given due importance and significance. Such an amendment must be held to have been made keeping in view the medical practices which were prevalent as prior thereto. A bare perusal of the judgment under appeal would show that the learned Commissioner did not bestow any consideration as regards the said factor at all. PW 2 has not been found to be a qualified doctor to assess loss of earning capacity for determination of compensation. It is not the case of the applicant-respondent that he comes within the purview of the six injuries referred to in Part I of Schedule I appended to Workmen's Compensation Act. It was, therefore, obligatory on the part of the Commissioner to arrive at a finding of fact as to whether PW 2 was a qualified doctor and in any event he should have referred to the report for the purpose of coming to conclusion as to whether such report should be accepted on its face value.
9. Mr. Banik, learned counsel for the claimant-respondent, however, has placed strong reliance upon a decision of Karnataka High Court in S. Chinnaswamy v. Periaswamy 1983 ACJ 64 (Karnataka). In that case it was held that a substantial question of law must be involved in an appeal, so that the same may be entertained by the High Court under Section 30(1) of the Act. The learned Judge, inter alia, held that the question as to whether there was disability caused and to what extent is also a question of fact. The said decision was rendered prior to the amendment of 1984 made in the Workmen's Compensation Act. Mr. Banik also relied upon a decision of a Division Bench of Karnataka High Court in Oriental Insurance Co. Ltd. v. Vasantha Pitambar . In that case also although the accident had taken place after coming into force of the Amendment Act 22 of 1984, it does not appear that the said amendment fell for consideration before the learned Judges. In that case, simply reliance had been placed upon the judgment of Apex Court in Chunilal V. Metha & Sons. Ltd. v. Century Spinning & Mfg. Co. Ltd. (which decision evidently was rendered prior to amendment) to hold that the disability caused and to what extent is a question of fact. Non-application of the relevant provisions of law on the materials on record, in our opinion, gives rise to a substantial question of law. Substantial question of law must be determined on the facts of each case. The learned Commissioner has neither analysed the evidence on record nor considered the effect of the Amendment Act 22 of 1984 so as to enable him to pose a correct question. Failure on his part to pose a correct question in order to arrive at a correct finding of fact amounts to a misdirection of law.
10. For the reasons aforementioned, we are of the opinion that the judgment under appeal cannot be sustained. It is set aside accordingly. The appeal and the application are allowed. The proceedings are remanded to the learned Commissioner for Workmen's Compensation, West Bengal, with a direction to consider the claim of the claimant-respondent afresh strictly in accordance with the provisions of the Act and the Rules framed thereunder after affording opportunity to the parties to lead additional or fresh evidence at an early date and preferably within a period of two months from the date of communication of this order.
11. However, out of amount deposited, the Commissioner shall allow the respondent-claimant herein to withdraw 50 per cent of the amount without prejudice to the rights and contentions of the parties. The balance amount shall, however, be kept in deposit and shall be invested in a short term fixed deposit in any nationalised bank and the interest accruing thereupon shall enure to the benefit of the successful party.