Gauhati High Court
Oriental Linsurance Co. Ltd vs On The Death Of Sajur Uddin Majumdar @ Saj ... on 1 August, 2017
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM &
ARUNACHAL PRADESH)
MFA 134 of 2004
Oriental Insurance Co. Ltd. ... Appellant
- Versus -
On death of Md. Sajur Uddin Majumder, his LRs. ... Respondents
BEFORE HON'BLE MR. JUSTICE KALYAN RAI SURANA Advocates for the Petitioners : Mr. Siddhanta Dutta, Ms. M. Choudhury, : Mr. R. Kaur.
Advocates for the Respondents : Mr. M. Talukdar (for Respondents 1(i) and 1(ii).
Date of hearing : 13.07.2017.
Date of Judgment and Order : 01.08.2017.
JUDGMENT AND ORDER (CAV)
Heard Mr. Siddhanta Dutta, learned counsel for the appellant and Mr. M. Talukdar, the learned counsel for the substituted respondents No.1(i) and 1(ii). The name of Respondent No.2 had been struck of by order dated 23.06.2016.
2) By filing this appeal under Section 30 of the Workmen's Compensation Act, 1923 (now called as Employees' Compensation Act, 1923 and hereinafter referred to as "the Act"), the appellant- insurer has challenged the judgment and award dated 11.09.2003 passed by the learned Commissioner, Workmen's MFA 134 of 2004 Page 1 of 13 Compensation, Cachar, Silchar in W.C. Case No. 17/1999, awarding a compensation of Rs.1,89,185/- together with simple interest at the rate of 9% p.a. from 16.09.1998, i.e. the date of the accident till realization.
3) The present appeal was admitted by order dated 05.01.2005 on the following substantial questions of law:-
a. Whether the Commissioner, Workmen's Compensation was justified for determining the compensation at 70% against the medical evidence and other evidence on record?
4) The original respondent No.1 was the claimant before the learned Commissioner Workmen's Compensation, Cachar at Silchar. His learned counsel entered appearance in this appeal on 23.06.2016 and informed this court that the respondent No.1 had died on 05.09.2014. Accordingly, his legal representatives were allowed to be substituted/ impleaded by order dated 01.12.2016, passed by this Court in I.A.(C) 1542/16. A perusal of the trial record (LCR) by this court reveals that the claimant/ respondent No.1 had died not on 05.09.2014, but on 15.10.2004. This was never pointed out to this court even by the learned counsel appearing for the substituted respondents. Therefore, though irregular, but as this Court had allowed the substitution, without the said mistake being pointed out, the said irregularity has not vitiated the present proceeding.
5) The case of the original respondent No. 1/ claimant in brief before the said learned Commissioner was that he was engaged as handyman in a bus bearing registration No. NL-06-B-0092, drawing monthly salary of Rs.2,400/-. On 16.09.1998 while working in the said bus, at about 6.30 pm, at a place called Harengajao, near Sunflower School, he sustained injuries in the accident arising out of and in course of his employment and as a result of his accident, he suffered grievous injuries all over his body including his left hand and left leg. The left hand had become useless due to stiff fingers movement and three fingers of left foot had to be amputated at Silchar Medical College & Hospital (hereinafter referred to as 'SMCH' for short). He MFA 134 of 2004 Page 2 of 13 claimed that the injuries had totally incapacitated him for all works, resulting in total permanent disablement.
6) The employer admitted that the claimant was under his employment, but denied his liability as the vehicle was insured with the appellant herein. In course of his evidence, the claimant had examined himself and one Orthopedic Doctor from the SMCH. He exhibited the following documents:-
a. Ext.1 is the Discharge Certificate of SMCH.
b. Ext.2 is the letter from Harengajao P.S. to Silchar P.S. for information of the said accident.
c. Ext.3 is the Police Report.
d. Ext.4(1) to 4(17) are the prescriptions and cash memos. e. Ext.5 to Ext.10 are the discharge certificates from SMCH. f. Ext.11 is the disability certificate given by the SMCH.
7) The learned counsel for the appellant had addressed this court on the evidence of the Claimant Witness No.1 i.e. the claimant and Claimant Witness No.2, who was the Assistant Professor, Department of Orthopedic, SMCH, who had treated the claimant. It is submitted that the only issue in the present case is that while the qualified medical practitioner had assessed the total practically disability rating at 25%, without assessing the loss of earning capacity of the claimant, the learned Commissioner, Workmen's Commission erred in law in personally looking to the condition of the claimant had decided the disability at 70% and further erred in law in awarding compensation at: 60% of wage X relevant factor at above 19 years of 50%. It is submitted that by accepting the wages of the claimant at the rate of 2,000/- per month, the compensation was quantified at Rs.1,89,184.80. It was submitted that as the Commissioner had no power to assess the physical disability, the learned Commissioner had erred in law in discarding the opinion of the qualified medical practitioner to assess the physical disability at 70%.MFA 134 of 2004 Page 3 of 13
8) Per contra, the learned counsel for the respondent, by justifying the award had placed reliance on the following case law:-
a. Basappa V. T. Ramesh & Anr., (2014) 10 SCC 789.
b. Saberabibi Yakub Bhai Shaikh & Ors. V. National Insurance Co. Ltd., 2014 (1) TAC 385 (SC).
c. Mohan Soni V. Ram Avtar Tomar & Anr., 2012 (1) TAC 385 (SC). d. Raj Kumar V. Ajay Kumar & Anr., (2011) 1 SCC 343.
e. K. Janardhan V. United India Insurance Co. Ltd., (2008) 8 SCC 518. f. Oriental Insurance Co. Ltd. V. Md. Jamaluddin, 2015 (4) GLT 738.
9) Having heard the learned counsel for both sides, this court has perused the materials on record. The record shows a dismal picture. The case appears to be a badly conducted case and with a great restrain, this court is compelled to state that from the record, it appears that the counsel conducting the case was not even aware of the basics or elementary principles of proving an accident case. Not only the actual case of the claimant was totally wrongly projected, but it appears that the counsel was not even what are the materials to be proved in case before Workmen's Compensation. The facts as revealed from the trial record (LCR) is as follows:-
a. The case was not of a road accident as we normally understand. b. The bus where the claimant was working, while on journey, was hit by lighting strike on 16.09.1998 and the bus was electrocuted. Resultantly, the claimant, who was standing on the foot-board of the bus got severely electrocuted and burnt. As a result, his two fingers on the left foot got cut of and other fingers became useless. The claimant suffered severe burnt injuries on left hand, chest and abdomen. As a result, the entire left side of the claimant's body suffered paralysis. He became senseless and fell down and he woke up in Harangagao Hospital.
c. The driver fled away and there was no one to look after him. The police contacted his house and his brother shifted him to SMCH. He was given regular treatment for burn and paralysis. Documents show long treatment.MFA 134 of 2004 Page 4 of 13
d. He was diagnosed of suffering from Hodgkin's Lymphoma (i.e. cancer) with Paraplegia. He was also hospitalized at Guwahati Medical College & Hospital lastly on 21.02.2002. The SMCH Authorities ultimately referred him to the Christian Medical College & Hospital at Vellore by issuing a certificate dated 11.09.2002. There the diagnosis of suffering from cancer was confirmed and chemotherapy course was started. e. Ultimately, his sufferings ended by his death on 15.10.2004. f. The case was filed on 21.06.1999, while the claimant was still undergoing treatment and the actual cause of his accident, extent of his pain and sufferings were not pleaded. Although medical evidence of his subsequent treatment for Hodgkin's disease were filed on record, but no attempt was made to prove the same.
10) Sadly, although documents were filed, the subsequent suffering from cancer was not pleaded. However, the claimant had stated about the injury and his disease in his deposition. Yet, for the reasons best known to his counsel, his learned counsel did not urge any of these matters in course of his argument. No attempt was made to re-examine the claimant to prove his subsequent medical complications, which appears to be the result of his accident.
11) Under these circumstances, it appears that the Commissioner, Workmen's Compensation, Silchar having seen the claimant, was compelled to discard the medical certificate assessing the disability at 25% and assessed it for 70%.
12) With the said state of injury and the resultant disease, there is no doubt in the mind of this court that the case of the claimant was wrongly handled and despite the detailed oral evidence of the claimant, his counsel did nothing to prove any of the supporting documents, prescriptions, diagnostic reports and discharge certificates showing his actual condition and the resultant disease of cancer which MFA 134 of 2004 Page 5 of 13 ultimately took the life of the claimant, who was only 19 years old at the time when he filed the complaint case.
13) In the case of Golla Ranjana Vs. Divisional Manager, (2017) 1 SCC 45:
2016 0 Supreme(SC) 920, the Hon'ble Supreme Court of India has held as follows:-
"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."
14) In the case of Raj Kumar (supra), on which the learned counsel for the respondent No.1 has relied, the Hon'ble Supreme Court of India has observed as follows:-
MFA 134 of 2004 Page 6 of 13"10. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terns of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation (see for example, the decisions of this court in Arvind Kumar Mishra v. New India Assurance Co.Ltd., (2010) 10 SCC 254: 2010 (10) SCALE 298 and Yadava Kumar v. D.M., National Insurance Co. Ltd., (2010) 10 SCC 341: 2010 (8) SCALE 567).MFA 134 of 2004 Page 7 of 13
9. Therefore, the Tribunal has to first decide whether there is any permanent disability and if so the extent of such permanent disability. This means that the tribunal should consider and decide with reference to the evidence:
(i) whether the disablement is permanent or temporary;
(ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement;
(iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person.
If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.
10. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities MFA 134 of 2004 Page 8 of 13 and functions so that he continues to earn or can continue to earn his livelihood.
16. The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to `hold an enquiry into the claim' for determining the `just compensation'. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the `just compensation'. While dealing with personal injury cases, the Tribunal should preferably equip itself with a Medical Dictionary and a Handbook for evaluation of permanent physical impairment (for example, the Manual for Evaluation of Permanent Physical Impairment for Orthopedic Surgeons, prepared by American Academy of Orthopedic Surgeons or its Indian equivalent or other authorized texts) for understanding the medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view the first schedule to the Workmen's Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen.
17. If a Doctor giving evidence uses technical medical terms, the Tribunal should instruct him to state in addition, in simple non-medical terms, the nature and the effect of the injury. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If the percentage of permanent disability is stated with reference to a limb, the Tribunal will have to seek the doctor's opinion as to whether it is possible to deduce the corresponding MFA 134 of 2004 Page 9 of 13 functional permanent disability with reference to the whole body and if so the percentage.
18. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give `ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross- examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability.
19. We may now summarise the principles discussed above:
(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of MFA 134 of 2004 Page 10 of 13 loss of earning capacity is the same as percentage of permanent disability).
(iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.
(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors."
15) The learned counsel for the respondent has not been able to show any authority on the point that the learned Commissioner can discard the certificate issued by a qualified medical practitioner and carry out its own assessment. The other cases cited by the learned counsel for the respondent does not appear to help him on the substantial question of law as framed by this court, which is the only point to be decided herein by this Court.
16) Although as per the call of the conscience, this Court has full sympathy for the claimant, who was not well represented by his counsel, yet this Court is constrained to hold that the Commissioner had no jurisdiction to carry out visual assessment to arrive at a conclusion contrary to the Medical Certificate (Ext.11). If on visual assessment, the learned Commissioner had reasons to disagree with the contents of the Certificate, having seen his disability of loss of fingers, the disability could have been held to be permanent total and/or partial disablement as per Schedule-I or II appended to Workmen's Compensation Act, 1923 (now Employees Compensation Act, 1923) by putting court question to the doctor for the purpose of getting explanation and/or arriving at the truth. Under the provisions of section 23 of the Employees Compensation Act, 1923, the Commissioner is a Civil Court and, as MFA 134 of 2004 Page 11 of 13 such, in appropriate cases, it is also empowered to call any witness or an expert as witness under the provisions of Order XIV Rule 14 CPC.
17) However, in the absence of any authority on the proposition that the Commissioner is authorized to carry out its own assessment of disability, the substantial question of law - whether the Commissioner, Workmen's Compensation was justified for determining compensation at 70% against the medical evidence and other evidence on record is decided in the negative and in favour of the appellant.
Consequently, the impugned order is not found to be sustainable.
18) As it appears from the case of Golla Ranjana (supra) that the Commissioner, Employees Compensation is the last authority on facts. Moreover, as it is seen that the claimant's case was mishandled by his counsel, and finding that the claimant has ultimately died due to Hodgkin's Lymphoma (i.e. cancer), relatable to the accident (i.e. electrocution by lightning, burn, loss of fingers of leg, stiffness of arms, paralysis, etc. as indicated above), which the claimant had suffered while on duty and working as handyman of the vehicle bearing Registration No. NL-06-B- 0092, this is found to be a fit case for remanding the matter back for trial before the Commissioner, Workmen's Compensation, Silchar as it prima facie appears that the claimant had suffered disability of permanent nature. In the opinion of this Court, this is not a case where the original claimant had suffered personal injury alone, but immediately after the judgment was delivered, the claimant had also died, which appears to be the result of his unfortunate accident.
19) To facilitate fresh trial on remand, it is provided that if the legal representatives of the deceased claimant, including the respondents No.1(i) and 1(ii) chose to pursue the matter, are so advised, they may appear before the Commissioner, Employees Compensation, Silchar within the outer period of 2 (two) months from today and by producing the certified copy of this order, seek a fresh trial and on such request being received, the learned Commissioner, Employees MFA 134 of 2004 Page 12 of 13 Compensation shall re-hear and decide the matter afresh by giving reasonable opportunity to the parties to lead fresh evidence.
20) It is submitted that pursuant to the interim orders passed by this court, a sum of Rs.75,674/- has been disbursed to the respondents No.1(i) and 1(ii). The amount already disbursed, shall not be recovered, because the claimant, who is a totally disabled handyman, must have spent huge money on his continuous treatment at Silchar Medical College & Hospital, Silchar, Guwahati Medical College & Hospital, Guwahati, Christian Medical College & Hospital, Vellore, which if properly accounted for, is expected to exceed far beyond the sum disbursed. The pain and sufferings of his family members, who have lost a 19 year old earning member or the family, so tragically and in his prime youth is unimaginable.
21) There shall be no order as to costs.
22) Interim order shall stand vacated.
23) Let the LCR be returned back urgently together with a copy of this order.
JUDGE
Mkumar
MFA 134 of 2004 Page 13 of 13