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Madhya Pradesh High Court

Oriental Insurance Comany vs Hifazat Hussain Ansari on 27 October, 2022

Author: Vivek Agarwal

Bench: Vivek Agarwal

                                                                  1
                                             IN THE HIGH COURT OF MADHYA PRADESH
                                                          AT JABALPUR
                                                               BEFORE
                                                 HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                                         ON THE 27th OF OCTOBER, 2022

                                                    MISC. APPEAL No. 1541 of 2002

                                        BETWEEN:-
                                        ORIENTAL INSURANCE COMPANY LIMITED
                                        THROUGH    DIVISIONAL MANAGER  1415
                                        WRIGHT TOWN, JABALPUR

                                                                                               .....APPELLANT
                                        (BY SHRI N.S.RUPRAH, ADVOCATE)

                                        AND
                                        RESPONDENT NO.1-APPLICANT
                                        HIFAZAT HUSSAIN ANSARI AGED 53 YEARS S/O.
                                        ALI SHER MIYAN ANSARI, TILWARAGHAT,
                                        JABALPUR

                                        RESPONDENT NO.2
                                        M/S.SHIVIR  MINERAL INDUSTRIES                2319
                                        BEDINAGAR, NAGPUR ROAD, JABALPUR

                                                                                             .....RESPONDENTS
                                        (RESPONDENT/CLAIMANT BY SHRI NARENDRA CHAUHAN,
                                        ADVOCATE)

                                      Th is appeal coming on for hearing this day, t h e court passed the

                                following:
                                                                   ORDER

This Miscellaneous Appeal under Section 30 of the Workmen's Compensation Act, 1923 is filed by the appellant/Insurance Company being aggrieved of order dated 27.6.2002 passed by learned Commissioner for Wo r k m e n ' s Compensation-cum-Labour Court, Jabalpur in Case Signature Not Verified No.54/1999/Non-Fatal (Hifazat Hussain Ansari versus M/s.Shivir Mineral SAN Digitally signed by AMIT JAIN Industries & Another).

T h e claimant was 53 years of age at the time of the accident. On 2 2.7.1999, while working as Mishtri to grind dolomite into powder in the Factory, he had fallen down causing breakage of right knee cap. He had taken treatment at Suvidha Hospital, Jabalpur and thereafter in his village at Bihar from Dr.Sanjay Ghosh & Dr.R.N.Sinha. At the time of the accident, the maximum ceiling of income was Rs.2,000/-.

Learned counsel for the appellant/Insurance Company submits that the Labour Court has recorded a finding of cent percent disability of the claimant, which is factually incorrect and the said finding needs to be set aside.

Learned counsel for the appellant/Insurance Company places reliance on the judgment of Hon'ble the Supreme Court in National Insurance Company Limited versus Mubasir Ahmed & Another (2007) 2 SCC 349 wherein it is held that if there is permanent partial disablement on account of the injuries not specified in Schedule-I then loss of earning capacity is not a substitute for percentage of physical disablement. It is one of the factors to be taken into account. The High Court without indicating any reason or any basis observed that there was 100% loss of earning capacity and such conclusion without any reason or any basis is not sustainable in the eyes of law. He also places reliance on the judgment of Hon'ble the Supreme Court in Oriental Insurance Company Limited versus Mohammad Nasir & Another (2009) 6 SCC 280 wherein it is held that the extent of disability should have been determined taking into consideration the facts & circumstances of the case but not in an arbitrary & illegal manner.

Learned counsel for the respondent/claimant supports the impugned Signature Not Verified SAN order dated 27.6.2002 passed by learned Commissioner for Workmen's Digitally signed by AMIT JAIN Date: 2022.10.31 10:32:15 IST Compensation-cum-Labour Court, Jabalpur in Case No.54/1999/Non-Fatal 3 (Hifazat Hussain Ansari versus M/s.Shivir Mineral Industries & Another).

I have heard learned counsel for the parties and gone through the record. Dr.Ravi Choudhary, about whom Shri N.S.Ruprah, learned counsel for the appellant/Insurance Company submits is a notorious person and he has been blacklisted by the High Court for his notoriety to issue fake Disability Certificates, was examined as Member of the District Medical Board and he certified 40% permanent disability of the claimant. As per the Disability Certificate (Exhibit P/2), the claimant has an old non union fracture of right patella with monoparasis right lower limb with partial ankylosis right knee joint and was certified to be unfit for physical labour. Dr.Ravi Choudhary admits that in Exhibit P/1, the muscles were termed to be normal. In Exhibit P/2, it is not mentioned as to how old was the fracture?. Exhibit P/1 narrates normal spacing in the joints. He admits that he had given his opinion on the basis of the letter written by the claimant as to whether he is fit to work as a labouer or not but admittedly did not produce the said certificate. He also admits that he had given his opinion on the basis of the muscles and had not seen the claimant working as a labourer. The aforesaid finding of Dr.Ravi Choudahry is contrary to Exhibit P/1 wherein it is mentioned that the soft tissue within normal joint space appears to be normal. Exhibit P/1 issued by Dr.M.P.Singh, Suvidha Hospital, Jabalpur has not been confronted or contradicted by Dr.Ravi Choudhary.

The Full Bench of this High Court in Kamal Kumar Jain versus Tazuddin & Others 2004 ACJ 1191 has held that the fracture simplicitor cannot be termed as privation of any member or joint and the injured cannot be held to be suffering from permanent disablement unless it is proved that the Signature Not Verified SAN union of bones is not possible or that after union of bones, the disability has Digitally signed by AMIT JAIN Date: 2022.10.31 10:32:15 IST occurred or on account of malunion, the injured has suffered permanent/partial 4 disablement. While reiterating the principle of assessment, it is held that the loss of income should be determined on the basis of the evidence available on record.

T h e Labour Court can refer to the Schedule under the Workmen's Compensation Act, 1923 to determine the loss of earning capacity or the percentage of loss of partial disability or the permanent disability if evidence about partial or permanent disability is insufficient.

When the facts of the present case are taken into consideration in the light of the Full Bench Judgment of this High Court in Kamal Kumar Jain versus Tazuddin & Others (supra) then the ends of justice will meet if 40% permanent disablement is taken into consideration because the Labour Court has failed to marshal the evidence and refer to the Schedule appended to the Workmen's Compensation Act, 1923.

Accordingly, the compensation will be as under:-

T h e claimant was 53 years of age at the time of the accident and, therefore, the factor of 142.68 will be applicable. If 40% permanent disablement is taken into consideration then the total compensation payable will come out to Rs.68,486.40 in place of Rs.1,71,216/-. Thus, there will be reduction to the tune of Rs.1,02,729.60 (Rupees One Lakh Two Thousand Seven Hundred Twenty Nine and Sixty Paise Only). The other terms & conditions of the order shall remain intact.

In above terms, this Miscellaneous Appeal stands disposed of. Let record of the Labour Court be sent back.

(VIVEK AGARWAL) 5 JUDGE amit Signature Not Verified SAN Digitally signed by AMIT JAIN Date: 2022.10.31 10:32:15 IST