High Court
Case Details
MFA 32/2004 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY Heard Mr. K.K. Bhatta, learned counsel for the appellant and Mr. Chinmoy
Legal Reasoning
Sharma, learned counsel appearing for the respondents. This appeal by the insurance company is directed against the order dated 30.12.2003 passed by the learned Commissioner, Workmen’s Compensation, Guwahati , in W.C. Case No.188/2002, awarding an amount of Rs.1,36,483/- with interest @9 % per annum and directing the insurance company to satisfy the said award, there being no dispute relating to the contract of insurance between the appellant in surance company and the employer. A claim application was filed under the provisions of the Workmen’s Comp ensation Act, 1923 (now Employees’ Compensation Act) praying for compensation co ntending inter alia that while the respondent/workman was driving the motor vehi cle bearing Registration No.AMP-1691(Bus), owned by the respondent Sri Dambarudh ar Das, it met with an accident on 16.06.2001 and as a result of which he receiv es severe injuries on his person, arising out of and in the course of his employ ment. It has also been contended that his monthly salary was Rs.4,200/- and he w as 38 years old at the relevant point of time. The owner of the vehicle Sri Dambarudhar Das in the written statement fi led has admitted the employment of the workman, his salary, age and also the fac tum of accident, apart from the injuries sustained by him in the said accident. It has however been contended that since there was a contract of insurance, the appellant insurance company is required to satisfy the award, if any passed. The appellant insurance company has filed the written statement denying the claim o f the workman and putting him to the strictest proof thereof. The workman in order to prove his case, apart from examining himself, ha s also examined the doctor, who treated him. The claimant/workman has also prove d the medical certificate (Ext.-4) dated 21.06.2001 issued by the doctor (claima nt’s witness No.2). The insurance company though cross-examined the witnesses ex amined by the claimant/workman, did not however examine any witness. The learned Commissioner upon appreciation of the evidence on record, bo th oral and documentary, has found that the accident occurred arising out of and in the course of employment of the claimant/workman on 16.06.2001, as a result of which he received injuries resulting in the loss of earning capacity to the t une of 30% and hence awarded an amount of Rs.1,36,483/- as compensation, by appl ying the appropriate relevant factor, taking the age of the workman as 38 years and also the monthly salary at Rs.4,000/-. Hence the present appeal. The appeal was admitted for hearing vide order dated 12.03.2004, without , however, formulating any substantial question of law, which necessitated heari ng of the learned counsel for the parties on the involvement of substantial ques tion of law. Upon hearing the learned counsel for the parties and also perusal of the impugned award, the following substantial question of law has been framed today and the learned counsel having agreed to argue the case on the said substantial question of law, they were heard:- Whether the learned Commissioner was justified in assessing the loss of earning capacity of the workman based on the medical certificate dated 21.06.2001 (Ext.- 4) and the deposition of the doctor (claimant’s witness No.2), when the doctor h as admitted that the workman was examined on the date of accident i.e. on 16.06. 2001 only? It has been contended by the learned counsel appearing for the appellant insurance company that since it is evident from the medical certificate (Ext.-4 ) and the deposition of the doctor that the workman has been certified as suffer ing from permanent disablement of 50%, based on the examination only on 16.06.20 01 i.e. the date of accident, the learned Commissioner ought not to have assesse d the loss of earning capacity at 30%, when the workman was not examined by the doctor subsequently to assess the extent of permanent disability, if any, and al so the loss of earning capacity. On the other hand, the learned counsel appearing for the respondent/work man, has submitted that it is apparent from the evidence of the doctor as well a s the medical certificate (Ext.-4) that the workman has suffered permanent disab lement of 50% and hence the learned Commissioner, having regard to the nature of employment of the workman, has rightly assessed the loss of earning capacity, b ased on the injuries sustained by the workman. I have considered the submissions advanced by the learned counsel for th e parties and also perused the evidence available on record, both oral and docum entary, adduced by the workman. I have also perused the judgment and order passe d by the learned Commissioner. It is evident from the deposition of the doctor, who treated the workman that only on 16.06.2001 i.e. on the date of accident he examined the workman, b ased on which he issued a medical certificate dated 21.06.2001 (Ext.-4), certify ing that the workman has suffered permanent disablement to the extent of 50%. It is not understood as to how the doctor on the very day of accident when the wor kman was examined, can certify the extent of the permanent disablement without e xamining him subsequently. The workman has also in his deposition stated that as a part of the treatment plaster was applied, which was subsequently been remove d. It has also come out in evidence of the doctor that he put a knee cap on 16.0 6.2001, which was removed by him on 17.06.2001. The doctor, however, has not sta ted that he again examined the workman on 17.06.2001 or any date after 16.06.200 1 and prior to 21.06.2001. It is very strange that the doctor has certified the permanent disablement of the workman as 50% based on the examination on 16.06.20 01 and even before removal of the knee cap or the plaster applied.
Decision
In view of the above, while it is an admitted position of fact that the workman has suffered the aforesaid fracture injury, the evidence of the doctor a s well as his certificate certifying the workman to have suffered permanent disa blement to the extent of 50%, is not believable and hence cannot be accepted. Ha ving held so, this Court should remand the matter to the learned Commissioner fo r redetermination of the extent of loss of earning capacity, based on the injuri es sustained by the workman, which I refrain from doing as it will consume furth er time in deciding the proceeding instituted under the provisions of the Workme n’s Compensation Act and proceeded to decide the claim for compensation finally, based on the evidence as discussed above, so as to cut short the life of the li tigation. It is an admitted position of fact that the workman has suffered fractur e injury on the upper end of the right tibia apart from lacerated injury over th e forehead. Based on the evidence adduced by the parties, as discussed above, it is clear that there was loss of earning capacity of the workman, which can safely a ssessed at 10%. It is not in dispute that the workman was paid salary of Rs.4,20 0/- per month and his salary for the purpose of calculating the compensation awa rdable has to be taken as Rs.4,000/-. The age of the workman being 38 years the relevant factor to be applied is 189.56. The claimant/workman, therefore, would be entitled to Rs.45,494.40, on the basis of the following calculation: [{(60% X Rs.4000/-) X 189.56} X 10%] The workman would also be entitled to interest @12% per annum from the d ate of filing the claim petition till the date of realization. It is also an adm itted position of fact that though the appellant insurance company has deposited the entire awarded amount, 25% was allowed to be withdrawn by the workman by th is Court vide order dated 12.03.2004 passed in Misc. Case No.750/2004. The workm an, therefore, would be entitled to interest at the said rate from the date of f iling the claim petition on the entire amount of Rs.45,494.40 up to February, 20 04 and the difference of Rs.45,494.40 and 25% of the awarded amount from 2002 to 2013. The interest awardable has been calculated at Rs.22,260/-. The workman, t herefore, would be entitled to Rs.67,754.40 less the amount already allowed to b e withdrawn by the workman. The learned Commissioner is, therefore, directed to release the aforesaid amount, less the amount, if any, already released to the w orkman, by account payee cheque and on being identified to the satisfaction of t he learned Commissioner. 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.