Oriental Insurance Co. Ltd vs Ram Babu Sahani & Ors on 14 July, 2015

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Gauhati High Court

Oriental Insurance Co. Ltd vs Ram Babu Sahani & Ors on 14 July, 2015

PRESENT HON'BLE MR. JUSTICE N. CHAUDHURY For the Appellant : Mr. A Ahmed, Advocate For the Respondents : None appears Date of hearing Date of Judgment : 14.07.2015 JUDGMENT AND ORDER(ORAL) In this appeal under Section 30 of the Workmen's Compensation Act, 1923 ( now renamed as 'Employees Compensation Act, 1923') has been preferred by the Insurance Company challenging the Judgment and award dated 3.1.2007 passed by the W.C. Commissioner, Nagaon in NWC Case No.184 of 2003 thereby passing the award of Rs.1,20,960/- in favour of the workman after having found that the workman suffered 25% physical disability resulting in loss of earning capacity to the extent of 30%.

2. One Rambabu Sahani approached the W.C. Commissioner, Nagaon by filing a petition under Section 3 and 4 of the W.C. Act, 1923 stating that he was working as cleaner in a motor vehicle belonging to one Pawan Kumar More. The vehicle was registered as NLW 1731 and when it was proceeding on 24.7.2003 from Hojai towards Nagaon , it met MFA No.18 of 2007 Page 2 of 14 with an accident near Badalgaon at about 4 pm due to head on collision with a mini bus. The said mini bus is alleged to have come in rash and negligent manner resulting in the accident due to which the claimant sustained multiple grievous injuries on his both bone of right elbow joint. He also suffered injuries on other parts of the body. Immediately he was taken to B.P.Civil Hospital at Nagaon. In connection with this accident, GD entry No. 582 dated 24.7.2003 was registered by the Nagaon Police Station. The workman claimed that he became permanently disabled due to the accident and totally lost his earning capacity. He claimed that he was 20 years of age at the time of accident and that he was drawing monthly salary of Rs.1,000/- in addition to daily allowance of Rs.100/-.

3. Since the vehicle was insured with the present appellant, the insurance company was made a party being opposite party No. 2. The opposite party No. 2 filed written statement denying the accident and injuries sustained by the workman and thereupon the W.C. Commissioner proceeded to decide the case on merit. The workman examined himself as PW-1 and one Dr. Dipesh Das as PW-2. A number of documents were also exhibited in support of the contention of the claimant. Opposite party No.2 examined one Swapan Kumar Bhattacharjee as DW-1 who is the Assistant Manager in Nagaon Branch of the insurance company. In course of his evidence, the claimant stated that he was working as MFA No.18 of 2007 Page 3 of 14 handyman in Truck No. NLW 1731 belonging to Pawan Kumar More. He was paid Rs.3500/- per month. He was working for 11/12 months prior to the accident. On 24.7.2003 while the vehicle was proceeding from Hojai , it met with an accident owing to head on collision with a 709 mini bus and due to the accident he suffered fracture injuries on his right elbow apart from other injuries. He was treated at Nagaon Civil Hospital and the owner of the vehicle did not give him any money towards the treatment. He claimed that thereafter he went to Dr. Dipesh Das for treatment who conducted his treatment and also issued certificate. He exhibited the accident information report as Exhibit-1, X-ray report as Exhibit-2 and physical disability certificate as Exhibit-3 and A/D card intimation to vehicle owner as Exhbit-4 and 5. The insurance company cross examined the witness at length . A suggestion was put to him that he was neither a handyman to the ill-fated vehicle nor was he present in the vehicle when it met with the accident. He supported his pleading that daily allowance of Rs.100/- was given to him by the owner of the vehicle for his food in addition to his regular salary. He stated that after getting treatment from the Civil Hospital, he was treated by one Dr. Poddar and thereafter Dr. Das treated him. He claimed that even till the date of deposition he had pain at his elbow.

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4. Dr. Dipesh Das was examined as PW-2 by the claimant. He stated that he is the doctor of Dalang ghat 16 A.P Battalion. He also sits at Jasmine Pharmacy and G.D. Nursing Home. He admitted that Exhbit-3 medical certificate was given by him to Rambabu Sahani. According to him, Rambabu Sahani came to him for the first time on 27.7.2003 for treatment of the injuries suffered by him on 24.7.2003. He examined the x-ray report and found that there was fracture of the right lateral epicondoyle. Apart from that there was other injury on his body and accordingly Exhbit-3 certificate was given. He stated that patient continued coming to him for treatment and on 16.8.2005, he was last examined by him. At that time, the patient had developed frozen shoulder complication of right upper limb. He specifically deposed in course of examination in chief that because of this disease, the patient was not capable of doing work with right hand as before. He stated that according to him, the workman had suffered physical disability to the extent of 25 % for which he had lost earning capacity to the extent of 30%. He further stated that in his assessment this physical disability was of permanent nature. He proved his signature on Exhibit-3 disability certificate as Exhibit-3(1). The insurance company cross examined this witness at length. He disclosed in course of cross-examination that even on the last day he found swelling at the elbow joint of the patient. He claimed that the workman was treated by him for the period w.e.f. 27.7.2003 till MFA No.18 of 2007 Page 5 of 14 16.8.2005. But there was no record in support of the same. The certificate was given on 16.8.2005. At this stage a specific question appears to have been asked to him as to how the disability of frozen shoulder is assessed. He replied that disability in case of frozen shoulder is assessed by examining the capacity of a patient to rotate his affected hand around the shoulder. In course of cross examination, he further disclosed that on 27.7.2003, he prescribed plastering of the elbow for 45 days and the same is disclosed in the prescription. He stated that frozen shoulder may be due to injuries on nerve as well as joint and in the case in hand, patient had developed frozen shoulder due to injury of the joint. He stated that he is an MBBS and made the assessment of disability exercising guesswork.

5. DW-1 Swapan Kumar Bhatacharjee has proved insurance policy. He has not led any evidence on the nature and character of the injuries suffered by the claimant.

6. On the basis of the aforesaid evidence led by parties, the learned trial court decided all four issues holding that the claimant examined qualified medical practitioner as required under Section -4 (i) © (ii) of the Workmen's Compensation Act, 1923, that the claimant suffered physical disability to the extent of 25% and that his loss of earning capacity was MFA No.18 of 2007 Page 6 of 14 as high as 30%. The learned tribunal accepted the claim of the workman that he was 20 years of age in the absence of any other evidence to the contrary. Although there was no salary certificate but taking into account the prevailing rate of minimum wage for the workman, he accepted the salary of the workman as Rs.3000/- per month. Thereupon the compensation was assessed as follows: - 60% of Rs.3000 X 224 X 30% = Rs.1,20,960/- . He also awarded a simple interest of 9% per annum on this amount from the date of accident till the date of realization and this was quantified at Rs.48,988/-. This judgment and award passed on 3.1.2007 has been called in question by the insurance company in the present appeal. It is stated at the bar that the insurance company has already deposited whole of the awarded amount with the jurisdictional W.C. Commissioner. However, it is not clear as to whether any amount has been disbursed to the workman in the meantime.

7. This court while admitting this appeal under Section 30 of the W.C.Act framed as many as two following substantial questions of law:-

(i) Whether the assessment of disability and the loss of earning capacity of the claimant made by the doctor is admissible under the law while the doctor himself has admitted that he has made the assessment on the basis of guesswork?

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(ii) Whether the learned Commissioner is justified in taking the monthly salary of claimant as Rs.3,000/- while the claimant himself has stated that he was paid a monthly salary of Rs.1,000/- and daily allowance of Rs.100/- while daily allowance cannot be included in the wages is a settled principles of law?

8. I have heard Mr. A Ahmed, learned counsel for the appellant. None appears for the workman. It appears that service of notice of the workman was accepted by substituted process by publication in newspaper. But no one has put up appearance on behalf of the workman. I have perused the LCR including the evidence led by the parties. .

9. At the threshold, Mr. Ahmed , learned counsel for the appellant submits that the substantial question No.2 framed at the time of admission of the appeal has become redundant in the meantime in view of the judgment of the Hon'ble Supreme Court in the case of Am eeruddin & anr. -vs- United India Insurance com pany ltd,.( 2011) 1 SCC 304. He has accordingly not argued the substantial question No. 2 and has only argued question No.1. According to Mr. Ahmed, the qualified medical practitioner did not have any material before him while issuing disability certificate Exhibit-3 and it was a mere MFA No.18 of 2007 Page 8 of 14 guesswork. He has placed reliance on the judgments of this court in the case of :-

(1) New India Assurance Co.Ltd. -vs- Sanjit Kumar -2000 (2) GLT 567 (2) Oriental Insurance Co.Ltd. -vs- Md.Naseer & anr --2009 (6) SCC 280 (3) New India Assurance Co.Ltd. -vs- SK Safique -2002 (3) TAC 131 (4) D.M United Insurance Co.Ltd. -vs- Prabhat Kumar Dhal & ors.

-2000 (1) TAC 594

10. In para-4 of the case of New India Assurance Co.Ltd. -vs- Sanjit Kumar (supra), this court has held that Workman Compensation Act provides the mode and method to determine compensation . Court is not at liberty to follow any other mode or method other than the one prescribed under the Act. In that case, court determined percentage of loss of earning capacity at 50% and para- 4 of the judgment shows that this court did not find favour with such finding of the tribunal and accordingly appeal was allowed setting aside the award of the tribunal. The case was remanded to the Commissioner to assess the compensation afresh, if need be, by asking the doctor to appear before him and give his opinion with regard to loss of earning capacity. It is clear from para-4 of this judgment that the case was remanded to the W.C. Commissioner requiring opinion of qualified medical practitioner which was not available before passing of the impugned judgment. In the case in hand, the qualified medical practitioner was examined as PW-2 and he gave his unequivocal opinion of MFA No.18 of 2007 Page 9 of 14 physical disability as well as loss of earning capacity of the workman. The present case, therefore, does not appear to have any similarity whatsoever with the case of Sanjit Kumar(supra).

11. In the case of Oriental Insurance Co.Ltd. -vs- Md.Naseer & anr(supra) , the Hon'ble Supreme Court has held in para-35 that in that case, there was nothing on record to show that qualified medical practitioner had given any opinion as to permanent and complete loss of use of the right leg of the workman. There was no opinion in regard to disability of the workman as a driver. Under such circumstances, the judgment of the High Court was set aside holding that the High Court was not correct in determining the loss of income at 100% in the absence of an opinion by qualified medical practitioner. A perusal of para-35 of the judgment shows that in that reported case , qualified medical practitioner did not give any opinion at all in regard to physical disability as well as loss of earning capacity. The question as to correctness of the opinion given by qualified medical practitioner did not arise before the Hon'ble Supreme Court in the aforesaid reported case. In the case in hand, there is an opinion of the qualified medical doctor. The reported judgment does not show that correctness or otherwise of the opinion of the qualified medical practitioner was under

consideration or enquiry before the Hon'ble Supreme Court. In sharp contrast to such factual matrix in the present case, there is an opinion of the qualified medical practitioner and the appellant wants this court to believe that such MFA No.18 of 2007 Page 10 of 14 opinion was incorrect. The case of Oriental Insurance Co.Ltd. -vs- Md.Naseer & anr(supra) therefore does not appear to be of any help for the purpose of deciding the sole substantial question of law involved in this case.

12. In the case of New India Assurance Co.Ltd. -vs- SK Safique(supra) , Calcutta High Court found that there was no supporting evidence or document on record in regard to nature of treatment conducted on the workman. Even medical documents of the case was neither called nor exhibited to ascertain the nature of injuries and type of treatment given in hospital. Since there was no material whatsoever in regard to injuries and treatment of the workman , a Division Bench of Calcutta High Court remanded the case to the W.C. Commissioner for giving an opportunity to the claimant to adduce further evidence in support of nature of injuries suffered by him and his claim of total disablement. It is not clear as to why this judgment has been relied on in the present case. This is because in the present case, not only the qualified medical practitioner has been examined as PW-2 but prescription, x-ray report and medical certificate in regard to treatment of the workman have been exhibited in the case. I have perused the records and found the prescription as well as medical report in addition to the oral evidence of the qualified medical practitioner. In his examination in chief PW-2 (Dr.Dipesh Das) has claimed that as per his assessment the workman had been physically disabled to the extent of 25% resulting in 30% loss of his earning capacity. In course of his cross- MFA No.18 of 2007 Page 11 of 14 examination, he disclosed the procedure by which the quantum of physical disability was estimated. This being the position, the case of New India Assurance Co.Ltd. -vs- SK Safique(supra) also does not appear to be of any help for the purpose of adjudication of the present appeal.

13. Mr. A Ahmed, learned counsel for the appellant thereafter placed reliance in the case of D.M United Insurance Co.Ltd. -vs- Prabhat Kumar Dhal & ors.(supra). In that case, as disclosed from para-6 and 7, the claimant did not examine the doctor to prove his injury. There was no evidence to assess the loss of earning capacity. Since more than 5 years have elapsed in the meantime, the Orissa High Court in that case granted compensation of Rs.10,000/- under the facts and circumstances and closed the appeal. In the case in hand, PW-2 is the doctor who claimed to have examined and treated the patient for 2 years continuously after the accident had taken place which is in sharp contrast with the facts of the case of Prabhat Kumar Dhal & ors. In that case, attending physician was not examined and a Specialist was examined to prove the records. Section-4(1)©(ii) of the E.C. Act, 1923 provides that in case of injury not specified in Schedule-1, percentage of compensation payable in case of permanent total disablement would be proportionate to the loss of earning capacity and this loss of earning capacity is to be assessed by the qualified medical practitioner. The Section requires that the loss of earning capacity has to be permanent and caused due to the injuries sustained by the workman. This is MFA No.18 of 2007 Page 12 of 14 because W.C. Commissioner not being an expert in regard to medical science cannot make the assessment himself as to physical disability or loss of earning capacity occurring to a workman due to injury. In so doing, he has to rely on an expert in the field and this is what has been done by providing for assistance of qualified medical practitioner. The qualified medical practitioner is understood to be equipped with necessary knowledge and expertise to make the estimate of physical disability. He has to apply his discretion depending upon the material available to arrive at a decision in regard to physical disability and loss of earning capacity. In the case in hand, the objective standard applied by PW-2 was examining the extent of capacity of the patient in rotating his right hand. PW-2 stated in course of cross examination that in case of frozen shoulder a person cannot freely move his hand and so standard of capacity to rotate the hand was applied by him to ascertain the extent of disability of the claimant in the present case. Having applied this standard he found that the workman was disabled to the extent of 25%. This shows that assessment made by the qualified medical practitioner was not a mere arbitrary exercise. He followed certain standard to arrive at a finding. In that view of the matter, the discretion applied by the medical expert cannot be questioned by this court . Law requires that W.C.Commissioner is to find out loss of earning capacity on the aid and advice of qualified medical practitioner. The qualified medical practitioner will not only judge the nature of physical disability but also the effect of the disability upon the earning capacity of the workman. Definitely, the nature and character of the MFA No.18 of 2007 Page 13 of 14 occupation pursued by workman will be guiding factor for the qualified medical practitioner in assessing the loss of earning capacity. The extent of physical disability may not be same as that of loss of earning capacity in a given case. In the present case, in the assessment of the qualified medical practitioner , loss of earning capacity was 30% although physical disability was 15 %. In view of cross examination of the PW-2, it cannot be said that assessment made by qualified medical practitioner was a mere arbitrary guesswork. This being the position, the sole substantial question of law cannot arise from the facts and circumstances of the present case.

14. Consequently, the appeal is devoid of any merit. It is accordingly dismissed. No order as to cost.

15. The amount deposited by the insurance company with the jurisdictional W.C. Commissioner shall forthwith be disbursed to the workman by sending notice at his address without further delay.

JUDGE Nivedita MFA No.18 of 2007 Page 14 of 14

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Gauhati High Court