Gauhati High Court
National Insurance Co. Ltd vs Ram Ashish Shah & Anr on 9 March, 2017
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM &
ARUNACHAL PRADESH)
MFA 11/2010
National Insurance Co. Ltd. .....Petitioner
Vs
Robin Boro ........Respondent
With MFA 10/2010 National Insurance Co. Ltd. .....Petitioner Vs Ram Ashish Shah & Another .....Respondents BEFORE HON'BLE MR. JUSTICE KALYAN RAI SURANA Advocates for the Petitioner : Mr. R C Paul, Ms. S Roy, Mr. B C Das ...... Advocates Advocates for the Respondent : Mr. I A Talukdar, Md. S Islam, Mr. N Amin ........ Advocates Date of hearing & Judgment : 09.03.2017 JUDGMENT AND ORDER (Oral) Heard Ms. S Roy learned counsel for the appellant as well as Mr. I A Talukdar, learned counsel appearing for the respondent No. 1/claimant.
Page 1 of 11 MFA 11/2010 with MFA 10/20101. Both the appeals arise out of same accident. Therefore, for the purpose of general/common facts involved in both the appeals, this court is relying on the facts as arise in MFA No. 11/2010.
2. This is an appeal under Section 3 of the Workmen's Compensation Act, 1923, now renamed as Employee's Compensation Act (herein after referred to as "the said Act") is directed against the judgment and award dated 7.12.2006 passed by the learned Commissioner Workmen's Compensation, Nagaon in WC Case No. 7/2002. By the said judgment, compensation of Rs. 1,39,463/- was awarded in favour of the respondent No.1/claimant. The facts which are not in dispute is that the respondent No. 1 was working as a handyman of truck bearing Reg. No. AS- 25/1932. The said vehicle was on its way from Nagaon to Guwahati on 28.11.2001, when it met with an accident at a place called Senchowa at about 11:30 pm and the truck had turned turtle on the roadside. In the said accident, the respondent No. 1 sustained grievous injuries. In respect of the said accident, the GD Entry No. 648 dated 29.11.2001 was registered with the Traffic Branch of Nagaon Police Station. At the time of accident, the respondent No. 1 was receiving a fixed salary of Rs. 3,000/- excluding food allowances. The said truck was insured with the appellant under a valid insurance policy which was valid up to 3.5.2002.
3. As the respondent No. 1 did not receive any compensation, he approached the Commissioner for Workmen's Compensation, Nagaon by filing NWC 7/2002. In course of trial, the following 5 (five) issues were framed by the learned Commissioner :
i. Whether the claimant is the workman in the vehicle No. AS-
25/1932 ?
ii. Whether the claimant sustained injuries in the accident during the course of and arising out his employment ?
iii. If so, what was his physical disability and loss of earning capacity thereof ?Page 2 of 11 MFA 11/2010 with MFA 10/2010
iv. Whether the vehicle No. AS-25/1932 was duly insured with the OP No. 2 at the relevant time of accident ?
v. Whether the claimant is entitled to compensation ? If so, who will be liable to pay and what will be the quantum ?
4. Considering the evidence of the parties by the impugned judgment and award, the respondent No. 1/claimant was found to be entitled to a sum of Rs. 1,39,463/- towards compensation along with 9% interest thereon. By an order dated 10.2.2010 this court had admitted the hearing on the substantial questions of law as set out in the memo of appeal. The said substantial questions of law are as follows :
i. Whether, the injury sustained by the claimant not being one as specified in Schedule I Part - II of the Workmen's Compensation Act, 1923 and there being no evidence and finding at all to show that the alleged disablement of the claimant reduces his earning capacity in every employment which he was capable of undertaking at the time of accident, the learned Commissioner was justified in granting compensation in accordance of the provision of Section 4(1)(C)(ii) of the Act.
ii. Whether, the Medical Practitioner having purportedly assessed the loss of earning capacity of the claimant at 36% without due regard to the percentage of loss of earning capacity in relation to the injuries specified in Schedule- I of the Workmen's Compensation Act, 1923, the learned Commissioner has been justified in acting upon the said purported assessment and granting compensation under Section 4(1)(C)(ii) of the Act. iii. Whether, in the absence of contract between the insurer and the insured as regards the payment of interest, the learned commissioner was justified in fastening the liability upon the appellant Company to pay interest @ 9% on the awarded amount.Page 3 of 11 MFA 11/2010 with MFA 10/2010
5. The learned counsel for the appellant has submitted that she would be limiting her argument on substantial questions of law No. 1 & 2 only. She submits that the respondent No. 1, at the time of accident, was a handyman and suffered a fracture in the left shoulder joint. She submits that the injury of that nature is not sufficient to cause "permanent partial disablement"
within the meaning of Section 4(1)(c)(i), but it falls within the scope of Section 4(1)(c)(ii) of the said Act. She further submits that in such a case, the loss of earning capacity must be assessed by a qualified medical practitioner. She submits that in the present case, it is a clear admission by the doctor (PW2) in his cross-examination that he was not aware what work the respondent No. 1 was doing. She submits that in the medical certificate (Ext.5), it is neither mentioned that the respondent No.1 was incapacitated to carry out the work which he was doing at the time of the accident nor it has been stated that the respondent No. 1 would not be able to carry out his normal earning capacity in every employment which he was capable of undertaking at that time. The learned counsel for the appellant also stated that as the said medical certificate (Ext.5) was issued without knowing the work which the respondent No. 1 was carrying out. Hence, the said certificate was not in consonance with the provisions of the said Act. She also refers to the cross-examination of PW2, i.e. the doctor who has admitted in his cross-examination that only by looking at the shoulder joint's dislocation, he had stated that he was presuming that Osteo-Arthritis will develop. He has further admitted that in a case where respondent No. 1 was not brought by the police and if a road traffic accident occurs there must be C.H. Legal Medico Register and while issuing Ext.A, he did not see the aforesaid register. The said witness further stated that if there was any document showing the examination of the patient while issuing certificate, he did not see that in the court on that day and he further submits that the certificate had issued only on external examination. The learned counsel for the appellant also refers to the statement made by the PW2 in cross- examination that the doctor had deposed to the effect that the 20% disability could be permanent or temporary and he issued the certificate by knowing that the disability was permanent and immediately thereafter he Page 4 of 11 MFA 11/2010 with MFA 10/2010 stated that if the respondent No. 1 had taken treatment from an Orthopedic Doctor, he could have got some relief, and thereafter the said doctor had further deposed that the said disease cannot be completely cured but on good treatment, the 20% disability can get reduced. By referring to the said cross-examination, the learned counsel for the appellant has stated that the medical certificate (Ext.5) was issued casually and without following the Medical standard procedure or practice, as a doctor would never give an opinion based on external examination by totally ignoring even the x-ray plate which was placed before him.
6. The learned counsel for the appellant further refers to the evidence of the respondent No. 1/claimant as PW1 to project that even he did not make any statement that he was rendered incapable of doing any other employment or that there was any reduction in his earning capacity in any other employment which he was capable of doing. The learned counsel for the appellant has placed reliance on the judgment of this Court in the case of National Insurance Company Ltd. -Vs- Bimal Nath and Others, 2009 (1) GLT 370, where this Court has meticulously explained and incorporated the provisions of Section 2(1)(g), 2(1)(l), 4(1)(c)(2) and 4(1)(d) of the said Act. As the ratio of the said decision, it was to be proved that the workman was suffering a reduction of earning capacity with regard to every employment which he was capable of undertaking at the time of accident that resulted in disablement and therefore, the learned Commissioner has to see whether the earning capacity of the insured has been reduced in every employment and not merely in the particular employment which he was engaged at the time of accident. The learned counsel for the appellant submits that in the present case, as no case was made out for assessment of the compensation under Section 4(1)(c)(ii) of the said Act, the respondent No. 1 would become only entitled to compensation to be assessed under Section 4(1)(d) of the said Act, and therefore, for the purpose of assessment of the parties be relegated before the learned Commissioner to work out the compensation as per Section 4(1)(d) of the said Act.
Page 5 of 11 MFA 11/2010 with MFA 10/20107. Per-contra, the learned counsel for the respondent No. 1 has referred to the cross-examination of PW1 and PW2 to project that the insurer did not cross-examine both the witnesses on any of the points which has now been raised in the appeal. He has submitted that no contradiction could be brought about during the cross-examination and the evidence of the PW1 and PW2 is un-impeached. It is submitted that the doctor (PW2) had correctly assessed the disability at 20%, which was based on the physical examination and the respondent No. 1 and the said doctor was reasonable in assessing the loss of earning capacity at 35%. He submits that as there was a fracture in the left shoulder joint, it is by the nature of the injury itself that it is evident that the respondent No. 1 had became incapable of carrying out the work as a handyman of the truck which involved strenuous physical labour. Therefore, it can be presumed that the respondent No. 1 had also become incapable of carrying out any other employment. The learned counsel for the respondent has placed reliance in the case of Oriental Insurance Co. Ltd vs Mohd. Nasir & Anr, 2009 (6) SCC 280. He placed the reliance on paragraph 26, 38 and 39 thereof to project that the compensation as awarded by the learned Commissioner was just and proper.
8. On the perusal of the materials on record and upon hearing the learned counsels for both the parties, this Court is inclined to see the evidence on record. As per the deposition of PW1, it is evident that he has not stated in his evidence that there was a reduction in his earning capacity in the employment in which he was engaged at the time of accident or that there was a deduction in his earning capacity in every employment which he was capable of undertaking on the basis of the skill he was possessing. It is also seen from the cross-examination that the respondent No. 1 had objected from taking any treatment at the cost of the insurer. However, the said statement was under objection. It does not appear from the impugned order that any cause has been shown for objecting to the said statement. On the perusal of the evidence of PW2, it is seen that the x-ray plate only shows dislocation at the left shoulder. However, the subsequent development of Osteo-Arthritis at the point of injury was diagonised only on Page 6 of 11 MFA 11/2010 with MFA 10/2010 the basis of physical examination alone. The PW2 has not given any evidence to show that he had a skill to diagonize Osteo-Arthritis without an x-ray examination just by a physical examination. Hence, the evidence of PW2 insofar as it relates to the diagnosis of onset of Osteo-Arthritis must be rejected as unsustainable. As per the evidence of the doctor, the respondent No. 1 was examined on 29.11.2001 and thereafter on 27.1.2003. On the contrary in his cross-examination, he had stated that the last treatment was provided to the respondent No. 1 on 16.8.2002 and further states that the certificate was issued on 27.1.2003 and he was not aware whether in between the said period the respondent No. 1 had taken any treatment or not. In his cross-examination, he stated that he had given a certificate on 29.1.2001 but he did not see the document on the basis of which the examination was done. The certificate of injury was given on the basis of external examination without asking the respondent No. 1 to undertake any medical x-ray examination. He admitted that 20% disability could be permanent or temporary. He was further of the view that if a treatment was taken from an Orthopedic doctor, the respondent No. 1 could have got some relief. In the opinion of this court, certificate given by a doctor showing disability is not at all acceptable when he was himself sure that if the patient had taken treatment from Orthopedic doctor the patient could have got some relief. If that be so, his practice of treating a person knowing that others specialist could have treated him better is a practice which is required to be depricated. It shows that the doctor had administered medicines to patient knowing that an Orthopedic surgeon would have given a better treatment. Having said so, this Court has refrained itself from making them in further comment on the said conduct of the doctor without giving any notice to him defend his action. In his evidence, the PW2 has admitted that he had given the certificate without considering what work the respondent No. 1 was doing. Therefore, this Court is of the opinion that the medical certificate (Ext.5) cannot be accepted as an admissible evidence to assess the compensation under Section 4(1)(c)(ii) of the said Act. In so far as the case of Mohd Nasir and Another (supra) is concerned, it appears to this Court that the question Page 7 of 11 MFA 11/2010 with MFA 10/2010 involved in the said case is contained in paragraph-14 which is extracted below :
" A question has been raised as to whether the percentage of loss of earning capacity and the physical disability shall be the same. A question has furthermore been raised as regards the applicability of the multiplier specified in the Second Schedule appended to the 1988 Act on the premise that the same would not be applicable in respect of the claim petition which is filed under Section 166 of the Act."
The Hon'ble Supreme Court while answering the said question had allowed SLP(C) No. 11215/2006, SLP(C) No. 74/2007, SLP(C) No. 2854/2008, SLP(C) No. 16171/2006, SLP(C) No. 21012/2006, while allowing all the said cases, the commonality in the orders is that the doctor having found the disability to the extent of the certain percentage could not have determined the loss of earning capacity at a higher percentage and on the said ratio, all the aforesaid SLPs were allowed. Therefore, this Court is of the opinion that the aforesaid citation does not lay down the ratio that if there is no cross- examination on the vital issues of the claimant and the doctor who deposed as witnesses, the evidence submitted by the claimant would remain unrebutted making him entitled for the compensation as prayed for.
9. This Court is of the view that the issues raised in the present appeal is squarely covered by the decision in the case of Bimal Nath (supra). On the basis of evidence on record, this court is of the view that the injury can at best qualify the respondent No. 1 to a compensation assessable under Section 4(1)(d) of the said Act and the said injury is suffered by the respondent No. 1 would fall in the category of temporary disablement, whether total or partial, resulting from the injury entitling the respondent No. 1 only to half monthly payment of the some equivalent to 25% of monthly wages of the employee, to be paid in accordance with the provisions of sub-Section (2) of Section 4 of the said Act.
Page 8 of 11 MFA 11/2010 with MFA 10/201010. Thus, the two substantial questions No. 1 and 2, are answered in favour of the appellant and against the respondent No. 1 by holding that the learned Commissioner was not correct in assessing and granting compensation under Section 4(1)(c)(ii) of the said Act.
MFA 11/201011. As consented to by the learned counsel for the parties, instead of relegating the parties back before the learned Commissioner, this Court by accepting the monthly income of the respondent No. 1 at Rs. 3,000/- is of the view that as per the provisions of Section 4(1)(d) of the said Act, he would be entitled to a compensation at Rs. 750/- in every half month, amounting to Rs. 1,500/- every month for a maximum period of 5 years, aggregating to a sum of Rs. 90,000/-. Therefore, the respondent No. 1 is found entitled to sum of Rs. 90,000/- as compensation. Accordingly, the appellant shall deposit the said awarded amount before the Registry of this Court within a period of 4 weeks from today which would be subject to adjustment with any deposit which the appellant may have deposited before the Registry of this Court. The said amount would carry interest at the rate of 12% as per Section 4(A)(3)(a) of the said Act. Upon such deposit being made, the Registry may allow the respondent No. 1 to withdraw the compensation on proper identification by his learned counsel as per the practice being followed by the Registry.
12. The appeal is accordingly allowed to the extent as indicated above and the award passed by the learned Commissioner, Workmen's Compensation, Nagaon, stands modified accordingly.
13. There shall be no order as to cost.
14. The registry may return the LCR.
Page 9 of 11 MFA 11/2010 with MFA 10/2010 MFA 10/201014. In the present case, the respondent No. 1 is working as a driver of the same offending vehicle as in the connected MFA No. 11/2010 and his monthly salary is Rs. 4,000/-. The learned counsel for the appellant as well as the learned counsel for the respondent No. 1 jointly submit that apart from the said distinguishing fact, all other issues raised in the present appeal is similar to the issues raised in MFA 11/2010, and accordingly the same ratio could also be applied in the present appeal because both the appeals arise out of same accident. In view of the submission made by the learned counsels for both the parties, by applying the decision given in the connected MFA 10/2010, the amount of award passed by the learned Commissioner, Workmen's Compensation, Nagaon, stands modified. As the respondent No. 1 was drawing a salary of Rs. 4,000/- per month, the compensation is recalculated at Rs. 1,000/- in every half month, i.e. Rs. 2,000/- per month, amounting to Rs. 24,000/- per year aggregating to a total sum of Rs. 1,20,000/- as compensation for injury suffered in course of employment. Accordingly, the appellant shall deposit the said awarded amount at Rs. 1,20,000/- before the Registry of this Court within a period of 4 weeks from today, which would be subject to adjustment with any deposit which the appellant may had made before the Registry of this Court. The said amount would carry interest at the rate of 12% as per Section 4(A)(3)(a) of the said Act. Upon such consideration being made, the Registry may allow the respondent No. 1 to withdraw the compensation and interest on proper identification by his learned counsel as per the practice being followed by the Registry.
15. It has been stated that 50% of the awarded sum was deposited before the Registry of this Court pursuant to the entire order passed for both the appeals. Accordingly, the appellant shall deposit only the balance amount of compensation found as awarded today within a time as allowed aforesaid.
16. The appeal is accordingly allowed to the extent as indicated above and the award passed by the learned Commissioner, Workmen's Compensation, Nagaon, stands modified accordingly.
Page 10 of 11 MFA 11/2010 with MFA 10/201017. There shall be no order as to cost.
18. The registry may return the LCR.
JUDGE Basumatary Page 11 of 11 MFA 11/2010 with MFA 10/2010