Gauhati High Court
Oriental Insurance Co. Ltd vs Billal Khan & Anr on 25 July, 2017
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
M.F.A. No. 216 OF 2010
Oriental Insurance Company Limited
... Appellant
-Versus-
Billal Khan & Another
..Respondents
BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA
For the appellant : Mr. S. Dutta, Sr.Adv.
Ms. M. Choudhury,
Mr. P. Choudhury, Advocates.
For the respondents : Mr. IA Talukdar, Adv.
Date of hearing & judgment : 25.07.2017
JUDGMENT AND ORDER (ORAL)
Heard Mr. S. Dutta, the learned counsel for the appellant as well as Mr. IA Talukdar, the learned counsel for the respondent No.1/claimant.
2. This appeal under Section 30 of the Workmen's Compensation Act, 1923 (now, Employee's Compensation Act, 1923), is directed against the judgment dated 14.05.2008 passed by the learned Commissioner, Workmen's Compensation, Nagaon in connection with W.C. Case No.128/2000.
3. The claimant's case, in brief, is that the respondent No.1/claimant, namely, Bilal Khan, had filed a claim petition before the Commissioner, Workmen Compensation, Nagaon, on 20.10.2000. It was MFA No.216/201 Page 1 of 13 stated therein that the claimant was a handyman of vehicle (709 Mini Bus) bearing Registration No.AS-02-A-2325. At the relevant time, said vehicle was driven by the driver having a valid license. The vehicle was owned by the respondent No.2, namely, Siddartha Kumar Chetia, holding a valid insurance policy of the appellant. In course of his employment, the vehicle met with a head on collusion with a Tourist Bus bearing Registration No.AS-01-H-7141, as a result of which, he sustained grievous injuries on his person. The Samaguri P.S. Case No.103/2000 under Sections 279/337/338/427 IPC was registered. It is stated that the notice under Section 10 of the Workmen's Compensation Act was not required to be issued as the police has received the information of the accident and removed the vehicle from the place of occurrence. The claimant claimed to be earning a fixed amount Rs.2000/- inclusive of food allowance of Rs.20/-, and accordingly, a claim for Rs.2,00,000/- was made. The claimant examined as many as 3 witnesses including himself and a registered Medical Practitioner. In course of evidence, the respondent/claimant exhibited the accident information report as Exhbt.1, patient slip of Samaguri CHC is exhibited as Exhbt.2, papers relating to treatment at Nagaon were exhibited as Exhbts.3 & 4. Exhbt.5 is the certificate of disability. The written statement filed by the owner of the vehicle is exhibited as Exhbt.6 and the respondent No.1, as PW.1 signed and his signatures are exhibited as Exhbt.6(1) and Exhbt.6(5) as the signature of Siddartha Kumar Chetia. X-ray plate purportedly exhibited is marked as Material Exhbt. 1.
4. PW.3 i.e. the Doctor had admitted Exhbt.5 to be his disablement certificate and his signature as Exhbt.5(1) and also admitted his signatures as Exhbt.3(1),(2) and (3). The signature appears in Exhbt.4 i.e. X-ray report was exhibited as Exhbt.4(1) was the signature of Dr. J. Debnath, the Radiologist of the Civil Hospital. The material Exhbt.1 tallied with Exhbt.4. He assessed the disability as 15% and loss of earning capacity was assessed as 40% which was done as per the examination MFA No.216/201 Page 2 of 13 carried out on 05.08.02 and the disablement certificate was given on clinical examination of the respondent No.1. PW.2, one Sri Raju Das, is a co-handyman of the vehicle.
5. The learned Commissioner, Workmen's Compensation accepted the evidence of PWs and the income of the respondent No.1 assessed as Rs.2000/- and thereby assessed the compensation as 60% of Rs.2000/- X 224.00 X 40% = Rs.1,07,520/-, holding the respondent/claimant to be entitled to the interest at the rate of 12% per annum from the date of adjudication till the date of realization. Aggrieved by the said judgment, the present appeal was filed.
6. This appeal was admitted by the order dated 21.06.10 on the following substantial questions of law:
"(i) Whether the finding of the Director, that the respondent No.1 partially disabled to the extent of 15% and consequently may incur 40% loss of earning capacity is total guesswork and not based on any sound medical evidence. The injuries sustained are absolutely simple in nature and the claimant has already recovered from such injuries. The learned member of such premise ought to have awarded taking recourse to Section 4(1)(d) instead of 4(1)(c)(ii);
(ii) Whether the learned Commission1er failed to take into consideration that the assessment of the Doctor shall have no value unless such assessment of the Doctor is not in conformity to the percentage of loss of earning capacity relating to different injuries in schedule 1, even if the compensation is awardable under Section 4(1)(c)(ii) of the Act;
(iii) Whether the injury sustained is simple injury and it is a case of either permanent or temporary and/or total or partial. The learned Commissioner has to record a clear finding as to whether the disablement is permanent or temporary and whether it is total or partial. In the instant case learned Commissioner miserably failed to record such finding as MFA No.216/201 Page 3 of 13 contemplated under the statue and such failure has vitiated the entire decision."
7. Challenging the findings recorded by the learned Commissioner, the learned senior counsel for the appellant has referred to the Doctor's certificate (Exhbt.5). It is submitted that as per the evidence of Doctor, PW.3, when he issued the said certificate on 05.08.2002, he relied only on the previous X-ray report dated 31.07.2000 i.e. the material Exhbt.4(1). It is submitted that the said X-ray report Exhbt.4(1) indicates that a fracture on right 9th and 10th ribs. It is submitted that in order to make Exhbt.5 as an admissible document, PW.3 was required to take a fresh x-ray and was required to opine on the basis of the subsequent X-ray. It is submitted that by a clinical examination, it would not be possible for any doctor to opine with certainty that the fracture was not healed and it would cause any disability whatsoever after a period of 2 years, which arises out of a fracture which occurred on 30.07.2000. It is submitted that the assessment of disability was done whimsically and accordingly, the loss of income was wrongly assessed at 40%. It is further submitted that as per the Employee's Compensation Act, 1923, loss of income must be calculated not only by taking into account the work which the employee was doing at the time of accident but it is also required to take into account whether he has suffered loss of income in respect of any other work which he could have carried out for his livelihood. It is stated that as there is no evidence as regards loss of income capacity in any occupation, which the respondent No.1 could have done, the finding in this regard by the learned Commissioner, Workmen's Compensation is not sustainable.
8. The learned senior counsel for the appellant has relied on the case of Haji Mohammad Ikramul Haq vs. State of West Bengal, AIR 1959 SC 488 to project that if the evidence was merely an opinion un- supported by any reasons, the court ought not to place any reliance upon it. The relevant paragraph-4 is quoted below:
MFA No.216/201 Page 4 of 13 "The High Court found that premises No. 22Chittaranjan Avenue was a little better than the premises in dispute and they (premises in dispute) were " somewhat better than the premises No. 5 Chittaranjan Avenue ". In these circumstances it cannot be said that the High Court committed any error of principle in taking an average of the two premises No. 22 and 5 Chittaranjan Avenue. The evidence of U. P. Malik was merely an opinion unsupported by any reasons and in the circumstances of this base the High Court has rightly not placed any reliance upon it."
9. It is further submitted that although the learned Commissioner has referred to the Mat. Exhbt.3 i.e. X-ray plate, which finds place in recording of the evidence of PW.1, but the said Mat. Exhbt. is not available in the record. It is submitted that as per cross-examination of PW.1, it was doubted that the said X-ray plate was not of respondent No.1. Nonetheless, the said Material Exhbt.-1 has not been sent along with the LCR to this Court. Hence, adverse inference may be drawn against the X- ray (Exhbt.1) and the X-ray report (Exhbt.4). It is further submitted that the loss of earning capacity as well the extent of disability was only by way of guesswork and, as such, the learned Commissioner, at best, could have awarded compensation under Section 4(1)(d) instead of Section 4(1)(c)(ii) of the Act. It is submitted that the Doctor was not an Orthopedic specialist, as such he did not qualify to be an expert in respect of orthopedic disability and therefore, the entries made in Exhbt.5 is liable to be discarded. He has further referred to Exhbt.5 and submits that there is nothing in Exhbt.5 to indicate whether the disablement suffered by the respondent No.1 was permanent or temporary or whether it was partial. Therefore, the learned Commissioner erred in law and also on facts in accepting Exhbt.5 for the purpose of awarding compensation to the respondent No.1 under Section 4(1)(c)(ii) of the Act.
10. Per contra, the learned counsel for the respondent No.1 has argued in defence of the impugned judgment and the compensation MFA No.216/201 Page 5 of 13 awarded in favour of respondent No.1. The main strength of his argument is that the issue which has not been raised in this appeal are not covered by the cross-examination of the Doctor (PW.3). Hence, the issues raised in the present appeal are all afterthought to avoid paying compensation to the claimant. It is further submitted that the only requirement in the Employee's Compensation Act is that the assessment of disability and the loss of earning must be done by a qualified Medical Practitioner and, as such, there is no prohibition in law by which the PW.3, who is a qualified Medical Practitioner could not have assessed the disability and the loss of earning capacity. He further submits that in the absence of any guidelines to that effect under the Employees Compensation Act, 1923, any Doctor can make an assessment of the assessment of disability and the extent of loss of earning capacity after examining the patient.
11. The learned counsel for the respondent No.1 has referred to the case of National Insurance Company Ltd. vs. Bapu Mohan (MD) and another, 2015(2) GLT 848 to project that the provisions of Section 4(1)(C)(i) applies when there is a permanent disability and if the injury is partial in nature then the provision of Section 4(1)(d) of the Act applies. He has further referred to pargarph-10 of the impugned judgment to project that Section 4(1)(c)(ii) required that in the case of non-schedule injuries, assessment has to be made by the aid of qualified Medical Practitioner. It is submitted that as the respondent No.1 has proved his disability and loss of income by producing admissible evidence (i.e., Exhbt.5) which was proved by PW.3, a qualified Medical Practitioner and, as such, there was no other evidence which was left out, as such, the learned Commissioner had rightly awarded the compensation in this case and therefore, there was no scope for any interference by this Court with the impugned judgment passed by the learned Workmen's Commissioner, Nagaon.
MFA No.216/201 Page 6 of 1312. On perusal of the evidence of PW.1, he has not stated anything about the loss of earning capacity. On perusal of the evidence of PW.3, it appears that he has given a statement in examination-in-chief that injuries of like nature may cause disability for a person for manual work and he assessed permanent disability at 15%. It has not been sated that in this particular case, the claimant /respondent No.1 had actually suffered permanent disability. In this regard, neither the respondent No.1 nor the Doctor i.e., PW.3 got any subsequent X-ray done to ascertain whether the fracture was not completely healed or not. If the Doctor has clinically examined the respondent No.1, then he should have recorded about which were the disorders which he could feel on clinical examination. For example, if there is a fracture and if it is not healed, there will be a sign of inflammation existing in place of such injury, but such evidence is not found in the present case in hand. There is no doubt that as per Exhbt.4(1), there was a fracture in 9th and 10 rib. Therefore, if a doctor certifies disability on the basis of Exhbt.4(1), it would be a wrong or inadmissible certificate.
13. In this case, it would be appropriate to quote paragraphs- 27, 28 and 29 of the case of National Insurance Company Limited vs. Bimal Nath, 2009(1) GLT 370:
"(27) For the reasons recorded above, with all respect, I am unable to persuade myself to agree with the view expressed by the Andhra Pradesh High Court, Orissa High Court, Punjab and Haryana High Court and Himachal Pradesh High Court in the aforesaid decisions, as those, in my considered view, are not the authority for the proposition that the compensation under Section 4 (1) (c) (ii) of the Act in respect of non-schedule injury has to be determined only with reference to the work that was being done by the workman and not the loss in the earning capacity in every employment which the workman was capable of undertaking at the time of the accident. Those decisions, in my view, have been rendered keeping in view the facts involved in those cases and without laying down any law, as indicated above.MFA No.216/201 Page 7 of 13
(28) In Company Law Board vs. Upper Doab Sugar Mills Ltd. Etc, 1977 AIR 831, the Allahabad High Court has opined that, to constitute 'permanent partial disablement', within the meaning of Section 2 (1) (g) of the Act, it must be such disablement which reduces the earning capacity of a workman in every employment which he was capable of undertaking at the time of the accident and, therefore, it has to be seen as to whether the earning capacity of a workman has been reduced in every employment which he was capable of undertaking at the time of accident and not merely in the particular employment in which he was engaged at the time of accident, resulting in the disablement. Similar view has also been taken by the Bombay High Court in Ahmed Abdul Vs. H.K. Sehgal , AIR 1965 Bombay 32, and by the Punjab High Court in Bhagat Singh Ram Saran Vs. Punjab State trough Officer-in-Charge, Bhakra Nangal Dam , Hoshiarpur, AIR 1966 Punjab 397, while considering the definition of 'partial disablement' and 'total disablement' as defined in Section 2 (1) (g) and in Section 2 (1) (l) of the Act, respectively. A Division Bench of the Calcutta High Court in Calcutta Licensed Measurers Bengal Chamber of Commerce vs. Md. Hossain, AIR 1969 Calcutta 378, while considering the definition of 'partial disablement' in Section 2 (1) (g) of the Act, has observed that in case of disablement of a temporary nature, loss of earning capacity which is spoken is in any employment in which he was engaged at the time of accident resulting in the disablement, in other words, the employment in which the workman was engaged at the time of accident is immaterial and in case of disablement of permanent nature, the reduction of earning capacity is spoken with regard to every employment in which the workman was capable of undertaking at the time of accident resulting in disablement.
The same view has been reiterated by Calcutta High Court in Ram Naresh Singh vs. Lodhna Colliery Col Ltd., 1973 LAB. I.C. 1956. A Division Bench of the Orissa High Court in C. David vs. Gobind Chandra Mishra and another, 1997 LAB. I.C. 1864, has also opined that to award compensation under Section 4 (1) (c) (ii) of the Act, the Commissioner has to see whether the earning capacity of the injured has been reduced in every employment and not merely in the particular employment in which he was engaged at the time of accident. A Single Bench of Karnataka High Court in The Mysore Sugar Company Ltd. vs. B.T. Krishnamurthy, 1997 LAB I.C. 1838, has also taken the same view. I agree with the view expressed in those decisions, for the reasons recorded above.
MFA No.216/201 Page 8 of 13(29) A Full Bench of Karnataka High Court in Shivalinga Shivanagowda Patil vs. Erappa Basuppa Bhavihala and etc., 2004 LAB. I.C. 286, while considering the provisions of the Act, including the definition of partial disablement' under Section 2 (1) (g) and of 'total disablement' under Section 2 (1) (l) and the entitlement of the amount of compensation under Section 4 of the Act, has opined that to determine as to whether the workman has suffered from total disablement, whether of a temporary or permanent nature, what has to be seen, whether the injury incapacitates the workman from performing all the work in which he was capable of performing at the time of accident resulting in such disablement and not in reference to the work which he was performing before the accident. A Full Bench of the Kerala High Court in Vanajakshan (died) Reveendra Sadanam vs. M.D. Joseph Muringa Poratha House, 2004 LAB.I.C. 339, has also taken the same view."
14. It is further observed that Exhbt.5, the medical certificate which is the plank of the present claim was prepared on 05.08.2002. The verification appended to the said petition was surprisingly signed on 30.11.2000. Therefore, on the date of filing of the claim petition, there is nothing on record to show that the respondent No.1/claimant had become a permanently disabled person. Therefore, this Court is not inclined to accept Exhbt.5 as a valid document for entertaining the claim as the said document was prepared during the pendency of the claim petition and therefore, it is a tailor made document.
15. It may be pertinent to mention that as this Court has discarded the medical certificate i.e., the Exhbt.5, the case of Bimal Nath (supra) is of no help to the respondent No.1/claimant under the facts and circumstances of the case herein.
16. The various orders passed in NWC Case No.128/2000 do not disclose that the medical certificate dated 05.08.2002 was filed on record by taking leave of the court. Moreover, the appellant herein had filed his written statement on 28.08.2001 and on that date also this vital document MFA No.216/201 Page 9 of 13 was not before the learned Commissioner or in the record of NWC Case No.128/2000.
17. I have also perused the LCR very meticulously and I have not find any petition by virtue of which leave was taken from the learned Commissioner to introduce any exhibits along with evidence. As a matter of fact, no document was filed along with the claim petition. Neither any original document nor any true copies. Therefore, all the exhibits appear to have been brought on record at a subsequent stage without any leave.
The medical certificate i.e., Exhbt.5 is quoted herein below:
"Examined one Billal Khan, Age- 20 years, resident of village
-Dimungun in the district of Nagaon (Assam) and found the following disorders:
(i) Fracture Rt. 9th and 10 ribs.
X-Ray ......(illegible) No. R-2 grievous in nature occurred by R.T.A. From above findings his disability 15% and loss of income 40%."
18. The said certificate (Exhbt.5) does not state that whether the disability was temporary or permanent or whether the loss of income would cover the person/ employee for his existing or any other employment which would have been undertaken. Moreover, the Mat. Exhbt.1 is also not found on record, therefore, this appears to be a fit case for issuing a direction to the State Government through the Chief Secretary and the Secretary, Labour Department to issue a guideline for proper maintenance of the records of trial cases before the court of learned Commissioner, Employees Compensation all throughout the State so as to prevent a procedural lapse, which may cause a genuine workman to suffer as in the present case in hand, wherein the accident took place in the year 2000 and now even 17 years elapsed, the workman is languishing for want of adequate compensation.
MFA No.216/201 Page 10 of 1319. Hence, in view of the discussions above, the substantial question of law No.1 is decided in the affirmative by holding that the assessment of disability of the workman at 15% and loss of earning capacity by 40% is a guesswork. It may be pertinent to refer that the Hon'ble Supreme Court of India in the case of Golla Ranjana vs. The Divisional Manager & another, (2017) 1 SCC 45: (2016) 0 Supreme (SC) 920 has observed that the Commissioner, Employees Compensation is the last authority on facts. Hence, in view of the said case, it would be appropriate to remand the matter back before the said learned Commissioner, Employees Compensation, Nagaon to see if the claimant /respondent No.1 is entitled to any compensation.
20. There is nothing in Exhbt.5 to show that there was any record of clinical finding by the Doctor. Moreover, the assessment of loss of income, prima facie, appears to be in excess if compared to other injuries covered by Schedule I Part-II of Employees Compensation Act, 1923. Hence, substantial question No.2 is decided in the positive and against the respondent No.1. On this count also, the matter needs to be remanded for fresh decision.
21. As the matter has been remanded for fresh decision, the matter arising out of substantial question of law No.3 may be also decided afresh by the learned Commissioner, Employees Compensation, Nagaon.
22. In view of the discussion above, I am constrained to hold that the respondent No.1/claimant has not been able to prove the extent of his disability and loss of income in respect of the non-schedule injuries as at the time of filing of the claim case. On the date of filing of the cliam, there was no document to show the disability and the Exhbt.5 which was procured on 05.08.2002 was a subsequently prepared document of which MFA No.216/201 Page 11 of 13 there was no notice to the appellant herein and it could not even relied upon.
23. Considering the fact that the accident had occurred on 30.07.2000, this Court is not inclined to allow any recovery from the respondent No.1, who had stated to have withdrawn a sum of Rs.53,760/- pursuant to the interim order passed by this Court.
24. Hence, as indicated above, this Court is inclined to issue direction to the State Government through the Chief Secretary and the Secretary, Labour Department to issue guidelines for proper maintenance of the records of trial cases before the court of learned Commissioner, Employees Compensation, as follow:
1) That all the Commissioner of Employees Compensation may be directed to ensure that a list of documents is also filed along with the claim petition as on the date of filing of the claim petition together with self attested photocopy of such document; and
2) All the exhibits should be recorded in form of a list together with Material Exhibits and such list should be maintained.
And if any exhibit is returned, the same must be recorded in the order-sheet so that the exhibits can be available before the appellate court while hearing the appeal.
25. In view of the discussion above, this appeal stands allowed. The matter is remanded back for a fresh decision by the Commissioner, Employee's Compensation, Nagaon. For which, it is provided that if the claimant/respondent No.1 desires a fresh trial, he may approach the learned Commissioner, Employee's Compensation, Nagaon within a outer period of 2(two) months from today and by producing a certified copy of this judgment, may pray for a re-trial and seek further instructions from the said learned Tribunal. However, without permitting the appellant for MFA No.216/201 Page 12 of 13 recovery from the claimant as it can be possible that the respondent No.1/claimant, who was a handyman by profession at the relevant time, might have spent the money and considering the fact that the accident occurred 17 years ago.
26. The parties shall bear their own costs.
27. Let the LCR be returned urgently.
JUDGE MKS MFA No.216/201 Page 13 of 13