High Court
Case Details
MFA 52/2004 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY
Legal Reasoning
Heard Mr. K.K. Bhatta, learned counsel for the appellant. None appears f or the respondents. This appeal by the insurance company is directed against the order dated 26.09.2003 passed by the learned Commissioner, Workmen’s Compensation, Guwahati , in W.C. Case No.205/2002, awarding an amount of Rs.2,65,644/- with interest an d directing the insurance company to satisfy the said award, there being no disp ute relating to the contract of insurance. The respondent No.1/workman filed a claim petition under the provisions of the Workmen’s Compensation Act, 1923 (now Employees’ Compensation Act) claimi ng compensation alleging that while he was travelling in the motor vehicle beari ng Registration No.AS-15/2741(Truck), as handyman, the said vehicle met with an accident on 16.04.2002 and as a result of which he sustained grievous injuries o n his person, resulting in 50% permanent disablement. It has also been pleaded that his age at the relevant point of time was 22 years and his monthly salary w as Rs.4,000/-. The employer/owner of the motor vehicle in the written statement filed h as admitted the employment, age and salary of the workman, apart from the factum of accident and the injuries sustained by the workman in the said accident occu rred arising out and in course of his employment. The insurance company, however , has denied the claim of the workman and put him to the strictest proof thereof . The learned Commissioner upon appreciation of the evidence on record, mo re particularly the deposition of the doctor and the medical certificate (Ext.-8 ) assessed the loss of earning capacity of the workman at 50% and awarded the co mpensation as noticed above. Hence the present appeal. The appeal was admitted for hearing vide order dated 08.06.2004, without , however, formulating any substantial question of law, which necessitated heari ng of the learned counsel on the question of involvement of substantial question of law. Having heard the learned counsel for the appellant, the following substa ntial question of law has been formulated and the learned counsel for the appell ant has been heard as agreed to. The respondents, however, have not contested th e present appeal. Whether the learned Commissioner was justified in awarding compensation of Rs.2, 65,644/- based on the evidence of the doctor and the medical certificate (Ext.-8 ), when admittedly the permanent disablement of the workman has been assessed ba sed on the examination conducted on the date of accident i.e. 16.04.2002? It has been contended by the learned counsel for the appellant that the deposition of the doctor as well as the medical certificate (Ext.-8) cannot be t he basis for assessment of the extent of permanent disablement vis-à-vis the los s of earning capacity, when the doctor has admitted that he examined the workman on the date of accident only, i.e. 16.04.2002. I have considered the submissions advanced by the learned counsel for th e appellant and also perused the evidence available on record, apart from the or der passed by the learned Commissioner. Having regard to the substantial question of law formulated, there is no necessity to go into the other aspects of the matter i.e. the factum of acciden t, nature of injuries sustained by the workman arising out of and in the course of his employment, the age of the workman as well as his monthly salary. It is e vident from the materials available on record that the workman has suffered the following injuries:- (cid:28)(1) ment of the joint on X-ray examination dislocation of left patella seen. (2) (3) (4) acture of the patella (right). On abrasion on forehead 3 cm x 1.5 cm size approx. One lacerated wound on left hand of about 3 cm x 1.5 cm size. One tender swelling of right knee joint on X-ray examination there is fr On swelling tender on palpation on left knee joint and difficult in move (5) One bruish of about 2 cm x .5 cm on left leg. (cid:29) The doctor issued the medical certificate dated 09.06.2002 based on the examination of the workman on 16.04.2002 i.e. the date of the accident, certifyi ng that the damage of the physical activities, because of the said injuries, is 55%. It has also come out in the evidence of the doctor that except on 16.04.200 2 he did not examine the workman. It is strange, how the doctor can assess the e xtent of physical disability on the date of the accident without re-examination after few days and waiting for noticing the improvement, if any. That being the position, the evidence of the doctor as well as the medical certificate in relat ion to the percentage of disablement vis-à-vis the loss of earning capacity cann ot be accepted. Be that as it may, there being no dispute relating to the aforesaid inju ries sustained by the workman, the loss of earning capacity can safely be taken as 25%. The workman, therefore, would be entitled to the compensation of Rs.79,6 93.20, having regard to the monthly wage of the workman at Rs.4,000/- and the ag e of the workman being 22 years. The said amount would also carry interest @12% per annum from the date of filing the claim petition till the date of realizatio n. Since an order was passed by this Court on 08.06.2004 in Misc. Case No.1097/2 004 directing release of 50% of the awarded amount i.e. Rs.1,32,822/-, the entit lement of the workman for compensation is confined to that amount, which is incl usive of the interest payable.
Decision
In view of the above, the award passed by the learned Commissioner stand s modified to the extent indicated above. The learned Commissioner is directed t o release the aforesaid amount of Rs.1,32,822/- to the workman by account payee cheque and on being identified to the satisfaction of the learned Commissioner, if the said amount has not already been released. The remaining amount shall be released in favour of the appellant insurance company. The appeal is partly allowed. No costs. Registry is directed to send down the records.