High Court
Case Details
MFA 130/2003 BEFORE HON’BLE MR. JUSTICE N. CHAUDHURY JUDGMENT AND ORDER (ORAL) 1. This appeal has been preferred under Section 30 of the Workmen’s Compens ation Act, 1923, against the award dated 31-12-2002 passed by Workmen’s Compensa tion Commissioner, Dhubri in W.C. Case No. 1/2002. By the said award the Workmen ’s Compensation Commissioner has determined the compensation amount at Rs. 3,75, 534.00. While admitting this appeal on 13-04-2007 the following substantial ques tion of law was framed: i) Whether the learned Commissioner, Workmen’s Compensation, Dhubri erred in law in assessing the loss of earning capacity of the injured respondent without the evidence of the doctor, the injury sustained being one not specified in the sch edule to the Workmen’s Compensation Act, 1923? ii) Whether the learned Commissioner Workmen’s Compensation, Dhubri, erred in la w in directing the appellant to pay the amount of compensation awarded by quanti fying the same, accepting the monthly salary of the insurer/ opposite party to b e Rs. 3,732/-, in the face of the limit of Rs. 2,000/- to the said effect in the policy involved? (cid:29) 2. One Mrinmoy Chatterjee, who was working as Factory Assistant in Krishnak ali Tea Estate met with an accident on 29-09-2001 while supervising the maintena nce work of CTC machine in the factory premises. The workman received injury on right hand and left leg. He was taken to garden hospital initially and shifted t o Chapar Hospital wherefrom he was referred to Orthopedic Surgeon at Siliguri fo r treatment under Dr. K.N. Chatterjee Memorial Nursing Home at Hill Cart Road, S iliguri, West Bengal. According to the workman he also received treatment in Apo llo Specialty Hospital at Chennai. At the time of the accident, he was 25 years of age and was receiving Rs. 1,49,30/- per day including all allowances and cash value of ration. The learned Workmen’s Compensation Commissioner perused the in jury certificate dated 03-11-2001, the written statement submitted by the appell ant Insurance Company, recorded the deposition of the witnesses PW1 and PW2. The PW1 is the victim workman and PW2 is another workman of the same Tea Estate. Ne ither of the opposite parties, i.e., the management or the Insurance Companry le d any evidence. The insurance policy bearing No. 2002/10/2001/7/0 was brought on record to show that it was valid from 07-06-2001 to 06-06-2002 where as acciden t took place on 29-09-2001. Money receipt from the Apollo Hospital, X-Ray plate and other medical documents were brought on record and the same received conside ration of the Workmen’s Compensation Commissioner. Workmen’s Compensation Commis sioner was satisfied that the claimant was a workman and that the incident was c overed by the insurance policy and that the workman suffered from permanent part ial disablement and that the same is non-scheduled one. 3. In this view of the matter the case in hand comes under sweep of Section 4(1)(c)(ii) of the Workmen’s Compensation Act, 1923 which provides as follows: (cid:28)(c) Where permanent partial disablement result from the injury (ii) in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablemen t as is proportionate to the loss of earning capacity (as assessed by the qualif ied medical practitioner) permanently caused by the injury. (cid:29) (i) & & & & & & & &. 4. From bare perusal of the aforesaid provision it appears that in case an injury is not specified in Schedule 1 the percentage of the compensation payable is proportionate to the loss of earning capacity which is to be assessed by the qualified medical practitioner. It is settled by the catena of decision of the Hon’ble Apex Court as well as this Court that in such circumstances the Workmen’ s Compensation Commissioner can not decide the loss of earning capacity himself without the aid of qualified medical practitioner. In the case in hand, the oppo site party did not lead any evidence but the claimant also did not examine any q ualified medical practitioner. 5. Under such circumstances, under Section 30 of the Workmen’s Compensation Act, 1923, the learned Workmen’s Compensation Commissioner was duty bound to ob tain the opinion of qualified medical practitioner for determining the said loss of earning capacity of the victim workman but without taking recourse to the sa me the learned Workmen’s Compensation Commissioner has assessed the loss of earn ing capacity at 70% which is unauthorized and contrary to Section 4(1)(c)(ii) of the Workmen’s Compensation Act, 1923. 6. be decided in favour of the appellant and the same is accordingly decided.
Legal Reasoning
In this view of the matter the first substantial question of law has to
Legal Reasoning
7. Learned counsel Mr. S.K. Goswami argues for the appellant Insurance Comp any has drawn my attention to the cover page of insurance policy schedule, which has been annexed as Annexure-1 of this memorandum appeal and has asserted that the policy in question does not cover the case of the claimant. According to the learned counsel, the said policy covers only those workmen whose monthly wages are less than Rs. 2,000/-. 8. I have perused the cover page of the said policy schedule. The statement made in the relevant part as pointed out by the learned counsel is quoted below : (cid:28)Premium details for Employees with wages less than Rs. 2000/- (cid:28) 9. By showing this recital learned counsel seeks to claim that the policy c overs those whose monthly wages is less than Rs. 2,000/-. In the opinion of this Court, such a claim does not emanate from the quoted recital of the cover page. The principle of interpretation of a document and that of interpretation of a s tatute is the same. It is not res integra that by way of interpretation Court ca n not supply words. The limited statement in the recital do not, in my opinion, show that the policy covers the workman having wages less than Rs. 2,000/-, the Insurance Company has neither examined any witness nor has produced the original policy documents lying with them. Having filed written statement and additional written statement, it is the burden of the Insurance Company to produce documen ts and to lead evidence to discharge the burden that the case in hand is not cov ered by insurance policy because of the aforesaid claim of limit. If the policy document would have been brought on record the same would have put an end to the confusion raised. In this view of the matter presumption has to be drawn agains t the Insurance Company. The second substantial question of law is accordingly d ecided in the negative. 10. In view of the decision given above, the impugned award dated 31-12-2002 is set aside and the matter is remanded to Workmen’s Compensation Commissioner who shall examine the claim by a qualified medical practitioner after receipt of the records to determine loss of earning capacity of the victim claimant. This shall be done within a period of 3 (three) months from the date of receipt of th is record. It is needless to show that amount deposited by the Insurance Company and already withdrawn by the workman shall be adjusted against the final award to be passed by the Workmen’s Compensation Commissioner. 11. 12. Send down the records forthwith. No order as to cost.