High Court · 2012

2. A. Talukdar, learned counsel appearing for the respondents. I have heard Mr. A. Ahmed, learned counsel for the appellant and Mr. I.

3. The respondent No.1/Claimant filed a petition before the Commissioner, Workmen’s Compensation, Nagaon, Assam claiming for compensation on account of i njuries sustained by him in an accident, which occurred on 01-05-2000.

4. The claimant’s case is that he was employed as a driver for the Vehicle No AS-02/9576 [Model 709 Bus] owned by the respondent No.2. On 01-05-2000 while the said vehicle was driven by the claimant/respondent No.1 from Naltoli towards Kamrup, the vehicle met an accident. In the result, the claimant and other occ upants of the said vehicle sustained grievous injuries.

5. The owner of the vehicle admitted in his written statement that the clai mant was employed as driver against the said vehicle. He also admitted to the p ayment of wages to the claimant /respondent No.1 to a certain extent. The insur er of the vehicle i.e New India Assurance Co. Ltd., the appellant herein, denied its liability to the payment of compensation.

6. The claimant/respondent No.1 examined himself and adduced the evidence o f Doctor in support of his claim. No evidence was adduced on behalf of the insu rer or the owner of the vehicle. The learned Commissioner, Workmen’s Compensatio n found that the claimant was the employee under the respondent No.2. The accide nt occurred during his employment as driver under the respondent No.2. The wages of the claimant/ respondent No.1 held Rs.2000/- per month. Considering his age and nature of injuries, the Commissioner, Workmen’s Compensation awarded compens ation to the tune of Rs.1,24,788/- with simple interest @ 12% per annum with ef fect from 01-05-2000 till deposit. The appellant/ New India Assurance Co. Ltd. was directed to deposit the entire amount within 30 days from the date of issue of the order.

7. It is submitted by the learned counsel for the appellant that the doctor , who examined the claimant/respondent No.1, is a general physician. He admitte d that the claimant/respondent No.1 sustained fracture injury and that Orthopaed ic Department should ascertain about the prospect of recovery of injuries. The learned Commissioner accepted the inadmissible medical certificate. The learned Commissioner also accepted the monthly salary/wages of the claimant/respondent No.1 as Rs.4000/- without any documentary proof. It is also pointed out that th e claimant obtained his driving licence in the year 1986. Calculating from that angle, the age of the claimant/respondent No.1, at the time of accident, cannot be less than 35 years. But the learned Commissioner accepted the age of the clai mant as 30 years. The rate of interest awarded by the learned Commissioner from the date of accident has also been challenged.

8. Upon hearing the learned counsel appearing for the parties and on perusa l of the judgment and award passed by the learned Commissioner, Workmen’s Compen sation, the following substantial questions of law were formulated: 1. Whether the learned Commissioner, Workmen’s Compensation can assess the am ount of compensation payable on the basis of the evidence of the medical practit ioner relating to the loss of earning capacity without regard being had to he percentage of loss of earning capacity in relation to injuries specified in Sche dule-1 and;

2. Whether the learned Commissioner can award interest from the date o f filing the claim petition in view of provisions contained in Section 4 A (3) of the Workmen’s Compensation Act, 1923.

9. Section 4 of the Workmen’s Compensation Act, 1923 provides that the amount of compensation payable to the workman on the death resulting from the in jury or permanent total disablement resulting from the injury caused to him in a n accident arising out of and in course of employment. Section-4 (1) (c) deals w ith the amount of compensation payable where the workman suffers from permanent partial disablement resulting from the injury. Sub-section (i) provides that in case of an injury is specified in Part II of Schedule-I, such percentage of the compensation, which would have been payable in the case of permanent total disa blement as specified therein as being the percentage of the loss of earning capa city caused by that injury. In this case, the injury suffered by the claimant/r espondent No.1 is neither specified in Part-II of the Schedule-1 nor in Sub-sect ion (ii) of the Schedule-1.

10. Section 4(1)(d) deals with a temporary disablement, whether total or partial, results from the injury. The amount of compensation payable as per S ection 4(1)(d) of the Act is a halt-monthly payment of the sum equivalent to 25% of the monthly wages of the workman to be paid in accordance with the provision s of sub-section (2). As per sub-section (2), the half-monthly payment referred to in clause (d) of sub-section (1) shall be payable on the sixteenth day- (i) from the date of disablement where such disablement lasts for a period of 28 days or more, or; (ii) after the expiry of a waiting period of three days from the date of disablement where such disablement lasts for a period of less than 2 8 days; and thereafter half-monthly during the disablement or during a period of five years, whichever period is shorter.

11. The claimant/respondent No.1, in his evidence, admitted that he did n ot visit any Orthopaedic Surgeon. The doctor, in his cross-examination, stated t hat he does not know the patient personally and advice the patient for physiothe rapy and to consult the Orthopaedic Specialist. He also stated that at the time of issuing the medical certificate, no laboratory test was conducted to the patient. He also felt to give definite opinion as regards the recovery of the p atient. He admitted that no scientific method of physical disability or loss of earning capacity was conducted.

12. Section 2(1)(g) defines (cid:28)partial disablement (cid:29) as under:- (cid:28)Partial disablement (cid:29) means, where the disablement is of a temporary nature, su ch disablement as reduces the earning capacity of a workman in any employment in which he was engaged at the time of the accident resulting in the disablement, and, where the disablement is of a permanent nature, such disablement as reduces his earning capacity in every employment which he was capable of undertaking at the time provided that every injury specified in Part II of Schedule 1 shall be deemed to result in permanent partial disablement.

13. In the cited case of National Insurance Company vs. Bimal Nath & Othe rs, reported in 2009 (1) GLT 370, it has been observed that the assessment to be made by the qualified medical practitioner for the purpose of sub-clause (ii) o f Section 4(1)' cannot, therefore, be a mechanical assessment, without regard be ing had to the percentage of loss of earning capacity in respect of the Schedule -1 injuries. The claimant in his evidence stated that he was treated by a docto r and was slightly cured by his treatment and subsequently, he suffered pain and unable to drive the vehicle. Thereafter, he visited the doctor, who gave him t he disability certificate. There is no mention that he is not in a position to do any work due to the injury sustained by him.

14. In the case of Bimal Nath (supra), while considering the provisions o f the Act i.e. Section 2(1)(g) and Section 2(1) (i), it has been observed that t he entitlement of the amount of compensation under Section 4 of the Act, has opi ned that to determine as to whether the workman has suffered from total disablem ent, whether of a temporary or permanent in nature, what has to be seen, whether the injury incapacitates the workman from performing all the work in which he w as capable of performing at the time of accident resulting in such disablement a nd not in reference to the work, which he was performing before the accident.

15. In this case, the doctor while assessing the loss of earning capacity of the workman did not have the record to the percentage of loss of earning cap acity in relation to caused by that injury as per Schedule-1 of the Act. The evi dence of records does not suggest that the workman suffered permanent disability reducing the earning capacity in any employment, which he was capable to undert ake at the time of accident. Therefore, it can be said that the workman has suff ered temporary partial disablement within the meaning of the Act.

16. In the case of temporary disablement, where total or partial, which r esulted from the injury sustained by the workman, he is entitled to get compensa tion, which is to be assessed under Section 4(1)(d) of the Act i.e. a half-month ly payment of the sum equivalent to twenty-five percent of monthly wages of the workman to be paid in accordance with the provisions of sub-section (2).

17. As regards the interest, the question is whether the interest payable from the date of accident or from the date of filing of the claim petition or f rom the date of adjudication. The learned for the appellant has submitted that s uch interest can be awarded only after adjudication of the dispute i.e. after pa ssing of the award. In this regards, he has relied on the reported case of Orie ntal Insurance Co. Ltd. & Another vs. Umesh Nath & Others, 2009(1) GLT 564. This Court, after considering the case of M/s National Insurance Co. Ltd. Vs. Dipen Laskar & Others and the case of National Insurance Co. Ltd. Vs. Mubasir Ahmed & Another, reported in (2007) 2 SCC 349, held that the interest can be awarded o nly after adjudication of the claim. It was also held that Section 4A(i) prescr ibes that compensation under Section 4 shall be paid as soon as it falls due. T he compensation becomes due to the basis of adjudication of the claim made. The adjudication under Section 4 in some cases involves the assessment of loss of e arning capacity of a qualified medical practitioner. Unless adjudication is done , question of compensation becoming due does not arise. The position becomes cl earer on a reading of sub-section (2) of Section 4 A. It provides that provisio nal payment to the extent of admitted liability has to be made when employer doe s not accept the liability for compensation to the extent claimed. The crucial expression is (cid:28)falls due (cid:29). Significantly, legislature has not used the expressio n (cid:28)from the date of accident (cid:29). Unless there is adjudication, the question of an amount falling due does not arise. (cid:29)

18. Section 4 A(1) says that compensation under Section 4 of the Act shal l be paid as soon as it falls due. Sub-section 4 A(3) says that whether any emp loyer is default in paying compensation due under this Act within one month from the date it fell due. The learned Commissioner shall direct the employer that t he amount shall carry at the rate of 12% per annum or such higher not existing t he maximum of lending rate of unscheduled Bank as may be specified by the Centra l Government by notification in the official gazette on the amount due.

19. In the cited case of National Insurance Co. (supra), it has been obse rved that the liability to pay interest would arise from the date of the acciden t itself. The sub-section (2) of Section 4 of Act prescribes that once the comp ensation is due under the Act becomes assertive provisionally under sub-section 2 of Section 4, the Workmen’s Compensation Act for final adjudication by the Com missioner and if the employer does not pay the sum from one month on which it fa lls due the employer shall pay under sub-section 2 of Section 4A at the rate of 12% per annum provided therein the penalty as contemplated under sub-section 4A (b) thereafter amended as Section 4A (3) of the Act. Thus, interest payable on t he principal amount if not paid when it falls due after one month of its falling due. The case records of lower Court disclose that employer did not accept the liability for the compensation claimed by the claimant/respondent No.1 to an ext ent. Hence, the compensation under Section 4 sub-section (2) was not due to the employer while the accident occurred or the claimant lodged the claim petition. The compensation become due one month after the adjudication. The judgement wa s delivered on 13-10-2003. Thus, the compensation along with the interest becom es due after one month of the adjudication.

20. It is submitted by the learned counsel for the respondents that the co mpensation awarded by the learned Commissioner has already been paid by the appe llant/Assurance Company to the workman, which may be access in their entitlement , the same may not be recovered from the workman. The learned counsel for the a ppellant has raised no objection to the submissions made by the learned counsel for the respondents.

21. In view of the above, the appeal is allowed but the amount already been paid by the appellant-Assurance Company need not be recovered from the workman.

22. No cost. Return the case records.