High Court
Case Details
MFA 83/2002 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT & ORDER (Oral) This appeal, under Section 30 of the Workmen’s Compensation Act, 1923 (now Emplo yee’s Compensation Act, 1923) (in short, (cid:28)1923 Act (cid:29)), is directed against the ju dgment and order dated 6th April, 2002 passed by the learned Commissioner, Workm en’s Compensation, Zone-III, Tezpur, in WC Case No.9/2001, awarding an amount of Rs.75,571.20 as compensation, with interest @ 12% per annum, which has been wor ked out at Rs.13,432.16, totaling Rs.89,003.36, for the injuries sustained by th e respondent No.1/workman arising out and in course of his employment and direct ing the appellant/Insurance Company to satisfy the said award, there being a co ntract of insurance between the appellant/Insurance Company and the employer. T he appellant/Insurance Company has been directed to deposit the said amount with in 30(thirty) days from the date of the award, failing which it has been ordered that the said amount will carry interest @ 12% till the date of payment. [2] The respondent No.1/workman has filed an application under the p rovisions of the 1923 Act claiming compensation contending inter alia that while he was driving the motor vehicle bearing registration No.AS-02/9444 (709 Bus), belonging to the respondent No.2, as a paid driver, on 13th October, 2000 the sa id vehicle met with an accident near Sonapur Forests Office, on National Highway No.37, resulting in receiving grievous injuries on his right leg, chest, head a nd other parts of the body. It has been contended that the said accident occurr ed due to technical/mechanical defects. The further contention of the responden t No.1/workman was that immediately after the accident, he was shifted to Sonapu r PHC and subsequently to Nagaon Civil Hospital, where he has undergone medical treatment. Based on the information received, GD Entry No.359 dated 13th Octobe r, 2000 was also registered in Sonapur Police Station. The workman further cont ended that he was paid wages of Rs.4,500/- per month and was 29 years old on the date of the accident and the vehicle was insured with the appellant/ Insurance Company, which was valid upto 13th June, 2001. In the said proceeding, the appe llant/Insurance Company was also arrayed as opposite party No.1. The respondent No.2, the employer, in the written statement filed has admitted the accident as well as the employment and monthly wages of the workman with further contention that as the risk of the owner has been insured with the appellant/Insurance Comp any, the compensation, if awarded, is to be paid by the appellant/ Insurance Com pany, under the contract of insurance. [3] The appellant/Insurance Company also filed the written statement , denying the claim of the workman and putting him to the strictest proof thereo f. [4] framed the following issues for determination:-
Legal Reasoning
Based on the pleadings of the parties, the learned Commissioner (cid:28)1. Whether the court has jurisdiction to entertain the claim? 2. Is there any cause of action for the claim petitioner? 3. Whether the claim petition is maintainable in its present form? 4. Whether the opposite parties are liable to pay compensation as claimed by th e claimant petitioner? 5. If yes, what relief is the claimant petitioner entitled to? [5] The workman has examined himself, apart from examining the Docto r, who attended the claimant, in support of his claim and proved 6(six) document s, namely, the accident information report (Exhibit-1); prescriptions issued by the attending Doctors (Exhibits-2 & 3); injury report (Exhibit-4); medical certi ficate (Exhibit-5); ex-ray report (Exhibit-6) as well as the driving license, ap art from the ex-ray plates. Neither the Insurance Company nor the employer addu ced any evidence, in support of their respective contention in the written state ment filed. They, however, cross-examined the workman’s witnesses. The learned Commissioner upon appreciation of the evidence on re [6] cord, passed the award, as aforesaid, returning the finding that the accident oc curred arising out and in course of the employment of the workman on 13th Octobe r, 2000, his monthly wage was Rs.4,500/- and he was 29 years old on the date of accident. The loss of earning capacity of the workman has also been assessed at 30%, based on the assessment made by the Doctor, in support of which the medica l certificates have been proved by the workman. Hence, the present appeal. [7] ber, 2007 on the following substantial question of law:- The appeal was admitted for hearing vide order dated 12th Septem (cid:28)Whether the Commissioner, Workmen Compensation can pass an award in respect of any non-scheduled injury without recording any finding relating to the loss of e arning capacity of the concerned workman? (cid:29) [8] one appears for the respondents, despite service of notice.
Legal Reasoning
I have heard Mr. S. Dutta, learned counsel for the appellant. N [9] Mr. Dutta, learned counsel for the appellant, referring to the i mpugned award and also the provisions contained in Section 4(1)(c)(ii) of the 19 23 Act, has submitted that since in the instant case the injury sustained by the workman is a non-scheduled injury, the learned Commissioner cannot pass an awar d in the absence of any certificate from the qualified medical practitioner rela ting to the loss of earning capacity of the workman due to the injuries sustaine d by him in the accident. According to the learned counsel, it is evident from the medical certificate issued by the Doctor that though the qualified medical p ractitioner has assessed the extent of disability of the workman, the loss of ea rning capacity, however, has not been assessed and hence, the learned Commission er ought not to have passed the award in the absence of such certification by th e qualified medical practitioner. [10] I have considered the submission advanced by the learned counsel appearing for the appellant and also perused the records including the award pa ssed and also the evidence adduced by the workman. [11] In the instant appeal, the factum of accident, nature of injurie s sustained by the respondent/workman arising out and in course of his employmen t, monthly wage as well as his age, apart from the contract of insurance, are no t disputed and hence, those aspects of the matters have not been gone into. The only question, which requires determination is whether the learned Commissioner has rightly assessed the loss of earning capacity of the workman. The respondent/workman in support of his claim has examined hims [12] elf, apart from examining Dr. Jyoti Sarma, who treated him. The workman in his deposition has stated the extent of injuries sustained by him in the accident an d also about his loss of earning capacity. The Doctor, who treated the workman and examined as witness No.2, has also stated about the nature of injuries susta ined by the workman and proved the ex-ray report, medical certificate as well as the disability certificate. No contradiction could be brought out by the Insur ance Company while cross-examining the aforesaid witness. The Doctor during cro ss-examination has in categorical term stated that the workman was classified as 30% disable and his loss of earning capacity was 30%. [13] It, therefore, appears from the evidence adduced by the workman that he could prove that the injuries sustained by him in the accident results i n 30% disablement and also 30% loss of earning capacity. That being the position , the learned Commissioner has rightly passed the award, which does not require any interference in appeal. [14] The appeal is, therefore, dismissed. [15] The Insurance Company is directed to deposit the amount as award ed by the Tribunal, if not already deposited. On such deposit, the amount shall be released in favour of the workman. It is needless to say that if the amount has already been deposited, the same shall be released in favour of the workman , if not already released. [16] [17] No costs. The Registry is directed to send down the records.