Gauhati High Court
Oriental Insurance Co. Ltd vs Lachit Pator & Ors on 29 August, 2018
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND
ARUNACHAL PRADESH)
MFA 253 of 2010
Oriental Insurance Co. Ltd. ....Appellant
Versus
Lachit Pator & ors. .... Respondents
BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA
For the Petitioner : Mr. S. Dutta, Adv.
: Ms. M. Choudhury, Adv.
: Mr. D. Baruah, Adv.
: Mr. D. Chakraborty, Adv.
: Mr. M. Choudhury, Adv.
For the Respondents : Mr. A.R. Agarwala, Adv.
Date of hearing : 29.08.2017
Date of judgment : 29.08.2017
MFA 253 of 2010 Page 1 of 12
JUDGMENT AND ORDER (ORAL)
Heard Mr. S. Dutta learned counsel senior counsel assisted by Ms. M. Choudhury learned counsel appearing for the appellant as well as Mr. A.R. Agarwala learned counsel appearing for the respondent No.1/ claimant.
2. This is an appeal under section 30 of the Workmen's Compensation Act, 1923 (now Employee's Compensation Act, 1923). The appeal is against the judgment and award dated 26.11.2008 passed by the learned Commissioner, Workmen's Compensation, Nagaon in W.C. Case No.01/2006.
3. The brief fact of the case is that the respondent No.1/ claimant was working as a handyman in a vehicle bearing registration No. AS-25/A-9153 owned by the respondent No.2. On 27.06.2005, the said vehicle met with an accident at Kapitali and the respondent No.1 suffered grievous injuries on his left wrist, left fore arm, L.S. spine, right shoulder joint and left knee. He was initially shifted to B.P. Civil Hospital, Nagaon where he remained as an outdoor patient from 27.06.2005 to 04.07.2005. Thereafter, he was admitted to another Nursing Home where he remained as an outdoor patient on 06.07.2005 and was discharged on 30.07.2005.
4. The accident case was registered as Nagaon Traffic P.S. GDE No.553 dated 27.06.2005. Stating that the respondent No.1 was earning a sum of Rs.3000/- per month including his daily allowances. He claimed compensation from his employer. At the time of the accident the vehicle was insured with the appellant and as he did not receive compensation the claim application named W.C. case No.01/2006 was instituted.
MFA 253 of 2010 Page 2 of 125. In course of trial, the learned Commissioner, Workmen's Compensation did not frame any issue. The respondent No.1 examined 2 (two) witnesses including himself and the Doctor. No witnesses were examined by the appellant herein. The respondent No.1 exhibited the following documents:-
Exhibit-1 - Accident Information Report, Exhbit-2 - Discharge certificate from BPCH Nagaon, Exhibit-3 - Disablement certificate, Exhibit-4 - Discharge certificate from Gohain Nursing Home, Exhibit-5 to 16- X-Ray reports, Exhibit-17 to 23- Prescription, Material exhibits- X-ray plates. (7 nos).
6. It would be pertinent to mention here that although in the judgment as well as in the examination of PW1, there is a reference that 7 (seven) numbers of X-ray plates were exhibited, but none of the 7 (seven) X-ray plates has been sent to the Court along with the LCR. The LCR does not contain any judicial order or a note in the order, indicating why those X-ray plates were not sent to this Court.
7. The learned Commissioner, by heavily relying on the exhibits, specifically the medical report (exhibit-2), arrived at a finding that in view of the evidence on record, the respondent No.1 would not be able to perform his job as a handyman. The learned Commissioner took a view that the loss of earning capacity would be in proportion to the injuries and therefore took a view that the respondent No.1 had lost his earning capacity upto 60%. By relying on the case of New India Assurance Company Ltd. Vs Anwar Hussain, 2002 III CLR 679, the quantum of compensation was calculated on the basis of accepting the monthly salary of respondent No.1 at Rs.3000/- computing the compensation at:-
MFA 253 of 2010 Page 3 of 1260% of Rs.3000/- x 216.98 x 60% = Rs.2,34,263/-, (Rupees Two lakhs thirty four thousand two hundred and sixty three only), further holding that the respondent No.1 is entitled to Simple interest @ 12% per annum on the amount of compensation from the date of adjudication till the date of realization, directing the appellant to pay the amount within a period of 30 days from the date of order.
8. The learned senior counsel appearing for the appellant has doubted the genuineness of exhibit-3 which is the discharge certificate issued by the first hospital where the respondent No.1 was admitted. It is submitted that there is a visible over writing on the date of admission by hand and the said certificate was mutilated at the place where date was mentioned and it was carefully pasted from the back side so as to remove the reflection of the writing from the back side of the page. He has also doubted as regard to the correctness of the X-ray report at exhibit-5 on the ground that these certificates were merely secondary evidence and in the absence of the X-ray report, no reliance can be placed on them by this Appellate Court.
9. He has further submitted that the evidence of the respondent No.1 being contrary to the documents on record could not have been accepted by the learned Commissioner. He has referred to the entries made in exhibit 2 i.e. medical certificate to project that the said certificate could not have been read as a disability certificate because it merely referred to the alleged deformity suffered by the respondent No.1without identifying the nature of deformity. There is no documentary evidence which can show that the entries made in exhibit 2 with regard to chronic osteoarthritis of left knee was a disease which was actually suffered by the respondent No.1.
10. The learned senior counsel for the appellant has also discounted the evidence of the Doctor i.e. PW2 on the ground that in his evidence he has deposed that Board had determined his physical disability by 40% whereas there is nothing in exhibit-2 i.e. medical certificate that MFA 253 of 2010 Page 4 of 12 the respondent No.1 had suffered any physical disability to the extent of 40%. By referring to the provision of section 4(1)(c)(ii) of the Employees Compensation Act, it is submitted that the loss of earning capacity is also required to be assessed by a qualified medical practitioner. It is submitted that in the present case in hand there is nothing in exhibit-2 to assess the loss of earning capacity by the respondent No.1. He has further relied on the case of National Insurance Company Limited Vs. Bimal Nath 2009 (1) GLT 370 to project that it was required to be proved to the satisfaction of the learned Commissioner that the loss of earning capacity must have been in respect of any employment which the injured was capable of performing. It is further stated that the learned Commissioner, Workmen's Compensation did not have the power and jurisdiction to assess the loss of earning capacity and the disability himself, which would be in contravention to the provisions of section 4(1)(c)(ii) of the Employee's Compensation Act, 1923.
11. By referring to the cross-examination of PW1, it is brought to the notice of this Court that at the last line of the cross-examination, it is referred to the issuance of Medical Board that the PW1 who is the respondent No.1 herein had admitted that he did not go to the Doctor for examination. Therefore, it is submitted that exhibit-2 was a procured document without the respondent No.1 subjected to himself to examine by Medical Board.
12. The learned Senior counsel for the appellant has submitted that in this case as the Commissioner had assessed the disability as well the loss of earning capacity himself, the same cannot be sustained. In view of the ratio laid down before this Court in the case of Bimal Nath (supra) and therefore it is a fit case either to allow the appeal by dismissing the claim petition or by ordering to remand back the matter to the learned Commissioner, Workmen's Compensation, Nagaon for a re- trial.
MFA 253 of 2010 Page 5 of 1213. Per contra the learned counsel for the respondent has argued in support of the impugned judgment and award. By referring to exhibit 6, 7, 8, 10, 11, 12 and 13 it is submitted that the respondent No.1 had suffered multiple fractures all over his body specially in the left wrist joint, fracture of the right shoulder joint, fracture in the middle third of left femur with satisfactory reduction, fracture in the left patella and an inter medullary nail-joint was also done.
14. It is further submitted that the respondent No.1 was an employee who was only working as a handyman and the provisions of the Employee's Compensation Act, 1923, being a beneficial legislation, instead of strict interpretation of the medical documents, a lenient view should be taken because of the nature of the grievous injuries suffered by the respondent No.1. It is submitted that as the deformity was assessed at 40%, there was no infirmity on the part of the learned Commissioner to assess the loss of earning capacity at 60%, because owing to the reduction of the left leg the same is equivalent to the amputation of the leg and therefore the respondent No.1 had become useless. Also have a medical report and it was rightly assessed with the loss of earning capacity which was 60%.
15. Having heard the learned counsel for the parties for the appellant and the respondent No.1 this Court has gone through the materials on record. On perusal of the exhibit-2 it appears that as per the entries made therein, the respondent No.1 was examined by the District Medical Board, Nagaon on 06.08.2007. It was certified that the respondent No.1 is physically handicapped due to Chronic Osteoarthritis of left knee (deformity 40%). In fact that the respondent No.1 was serving from Chronic osteoarthritis is not seen from any of the other exhibits filed by the respondent No.1. The said certificate (exhibit-2) is found to be issued on 20.08.2007, which is much later to the claim of the said petition. The claim petition appears to be filed on 02.01.2006 as per the order sheet of the W.C. case No.1/06, which is much later to the filing of the written MFA 253 of 2010 Page 6 of 12 statement on 19.09.2006 by the appellant herein, as revealed from order- sheet of LCR.
16. In the opinion of this Court although there is no doubt that the provisions of Employee's Compensation Act, 1923 is a beneficial legislation, it does not mean that the appellant Insurance Company should not be made aware of the vital documents on which the claim is required to be processed like the Doctor's certificate (Exhibit-2). It is not open for the claimant/ respondent No.1 to rely on the documents which is not a part of the record to prove the disability or the loss of earning capacity which was not the document based on which the claim application was filed. The Doctor (PW2), who had issued exhibit-2 and proved the signature of PW2 did not mention in the exhibit-2 as to how he had arrived at a finding that the respondent No.1 had the decease of chronic osteoarthritis.
17. Having noticed that the PW2 was the author of exhibit-2, it was not open to him to give evidence contradictory to writing given in exhibit-2 that the medical board had determined as physical disability by 40%. The said oral evidence is hit by the principles of section 92 of the Evidence Act, 1872 because the entry contained therein is that -
"deformity 40%". Therefore, unless it appears from a document that 40% deformity amounted to 40% disability, the evidence in so far as 40% disability, not mentioned in Exhibit-2 concerned, is not found to be admissible.
18. Appreciating the cross-examination of PW1 wherein the said witness had clearly admitted that he did not visit the Doctor for examination is sufficient enough to create a doubt in the mind of this Court as regard to neutrality of the contents of exhibit-2 because by the own admission of PW1 he did not visit the Doctor for examination.
19. At this stage, the learned counsel for the respondent has referred to the case of Golla Rajanna Vs. Divisional Manager, (2017) 1 SCC MFA 253 of 2010 Page 7 of 12 45 : (2016) 0 Supreme (SC) 920, has submitted that it has been held that by the Hon'ble Supreme Court of India that the Commissioner, Employee's Compensation was the last authority on facts and therefore the re- appreciation of the evidence by the Hon'ble Court and recorded its own finding on the facts dealt by the learned Commissioner was without jurisdiction. The relevant paragraphs 10 and 11 of case of Golla Rajanna (supra) are quoted below:-
"10. The Workmen's Compensation Commissioner, having regard to the evidence, had returned a finding on the nature of injury and the percentage of disability. It is purely a question of fact. There is no case for the insurance company that the finding is based on no evidence at all or that it is perverse. Under Section 4(1)(c)(ii) of the Act, the percentage of permanent disability needs to be assessed only by a qualified medical practitioner. There is no case for the respondents that the doctor who issued the disability certificate is not a qualified medical practitioner, as defined under the Act. Thus, the Workmen's Compensation Commissioner has passed the order based on the certificate of disability issued by the doctor and which has been duly proved before the Workmen's Compensation Commissioner
11. Under the scheme of the Act, the Workmen's Compensation Commissioner is the last authority on facts. The Parliament has thought it fit to restrict the scope of the appeal only to substantial questions of law, being a welfare legislation. Unfortunately, the High Court has missed this crucial question of limited jurisdiction and has ventured to re-appreciate the evidence and recorded its own findings on percentage of disability for which also there is no basis. The whole exercise made by the High Court is not within the competence of the High Court under Section 30 of the Act."MFA 253 of 2010 Page 8 of 12
20. In this regard this Court does not dispute the ratio of the case of Golla Ranjanna (supra). But the said judgment does not preclude the Appellate Court to assess whether the finding recorded by the learned Commissioner, Workmen's Compensation was correct and can be sustainable in the eye of law. Thus, it is one thing to appreciate the correctness of a judgment and another thing to substitute the view of this Court on the finding of facts by the learned Commissioner. In the discussion as made above, this Court has not substituted its own view as to what the percentage of disability or the loss of earning capacity has been suffered by the respondent No.1. This Court is merely appreciating the fact that the finding recorded by the learned Commissioner on the basis of the documents and oral evidence on record to find out whether the same is sustainable either on facts or in law.
21. The principles of beneficial legislation would not mean that the principles of section 92 of the Evidence Act, 1872 should be ignored and the oral evidence which is in distinctly in contrast to the writing in exhibit-2 be ignored and allow the oral evidence to prevail over the documentary evidence on record. By interpreting the principles of beneficial legislation, this Court cannot shut its eyes that the Physically Handicapped certificate which was not in existence on date when the claim petition was filed to be allowed to admit for the first time at the stage of evidence without following Rule 21 of Workmen's Compensation Rules, 1924 and thereby to permit the main adversarial party i.e. the appellant to be taken by surprise.
22. In this regard the submission made by the learned counsel for the respondent is that it is a usual practice being followed before the learned Commissioner, Employees Compensation in the State to allow documentary evidence to be put on record for the first time along with the evidence on affidavit in course of examination of the claimant. If that is the practice being followed, it is high time that the rule of law should be permitted to prevail.
MFA 253 of 2010 Page 9 of 1223. It is provided in the provisions of Rule 21 of the Workmen's Compensation Rules, 1924 that when an application for relief is based upon a document, the document shall be appended to the application. In the present case in hand, the Doctor's certificate i.e. exhibit-2 is a document on which the entries claim petition has been passed. The said documents have not been brought on record by taking leave by the learned Commissioner, Workmen's/ Employees Compensation. The introduction of such document without leave of the Court is hit by the provision of Sub-rule 3 of Rule 21 of Workmen's Compensation Rules, 1924 which provides that any document which is not produced at or within the time specified in sub-rule (1) or (2) as the case be, shall not, without the sanction of the Commissioner, be admissible in evidence on behalf of the party who should have produced it. This provision is found to be similar to the provisions contained in Order VII Rule 14(3) CPC.
24. That being the position of law, this Court cannot take cognizance of the practice being followed by the Commissioner, Workmen's/ Employees Compensation, to allow a document to be proved for the first time in course of evidence. The said practice being found contrary to the provision of Rule 21 of the Workmen's Compensation Rules, 1924 cannot be countenance or subscribed by the seal of approval of this Court.
25. In view of above and on finding that the respondent No.1 in the present case in hand had suffered grievous injuries on his person which has been specifically demonstrated by the learned counsel for the respondent, this Court is of the considered opinion that by following the case of Golla Rajanna (supra), this is a fit case where the matter should be remanded back to the last Court on facts, i.e. the learned Commissioner, Employees Compensation, Nagaon for a fresh trial.
MFA 253 of 2010 Page 10 of 1226. This Court is conscious of the fact that the accident took place in the year 2006 and this order of remanding back the matter is being made after 11 years from the date of accident. However, being bound by the ratio of the case of Golla Rajanna (supra), this Court is prohibited from interfering in the fact finding and therefore there is no alternative but to remand back the matter to the learned Commissioner, Employees Compensation, Nagaon for a fresh trial.
27. Liberty is granted to the petitioner to approach the Court of Commissioner, Employees Compensation, Nagaon if so advised within the outer period of 3 (three) months from today by producing a certified copy of the order. It is provided that if the respondent No.1 approaches the learned Commissioner, the said learned Commissioner would try the matter afresh by giving reasonable opportunity to the parties to prove their respective case. This is being done because if the respondent No.1 is not inclined to pursue the remanding of further trial it would be unnecessary for the learned Commissioner to restore the case on remand. Moreover, considering the probability that the respondent No.1, might have changed his residence, and if a case is restored suo-motu, he may not be served with a notice from the Court on his earlier address which would lead to more delay or even with invite dismissal of his case without his actual knowledge. Therefore instead of ordering a suo-motu re-trial, it is made clear that by this order of remand, it is left open for the respondent No.1 to agitate the matter on remand, if so advised.
28. As an outer limit time of 3(three) m onths time has been granted to the respondent No.1 to approach the Commissioner, Employees Compensation, Nagaon, the appellant shall not make any effort for recovery of the amount already disbursed to the respondent for a period of 4 (four) months from today.
MFA 253 of 2010 Page 11 of 1229. At this stage, the learned counsel for the respondent No.1 by relying on the case of National Insurance Co. Ltd Vs. Bimal Nath, 2009 (1) GLT 370, has stated that as, the respondent No.1 had suffered an accident and had spent a lot of money on his treatment. The amount of interim payment of 50% of the award was withdrawn by the respondent No.1 was totally spent out, as such, by following the ratio of the case of Bimal Nath (supra), the appellant may not be permitted to make recovery of any amounts from the respondent No.1. Having read the relevant paragraph 38 of the judgment in the case of Bimal Nath, it appears that the claimant therein was found to be entitled to a certain compensation, but he had withdrawn money in excess to his entitlement, which, in the facts of that case was not permitted to be recovered. This is not the situation in the present case in hand. As the judgment passed by the learned Commissioner has been set aside, this Court has no power to order that no recovery should be made, which would amount to doling out of public money, which cannot be done in exercise of appellate jurisdiction under section 30 of the Employee's Compensation Act, 1923. Therefore, the direction for stay of recovery for a period of 4 (four) months as stated in paragraph 28 above is maintained.
30. Return back the LCR together with the office note including that the 7 nos. of X-ray plates, being the material exhibits, were not received by this Court.
JUDGE Parimita MFA 253 of 2010 Page 12 of 12