Judgment · 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 compensation on account of injur ies sustained by him in a motor accident, which occurred on 23-04-2001.

#4. The claimant’s case is that he was employed as labour for the Vehicle No AS-06/A-4731 [Model 709 Truck] owned by the respondent No.2. On 23-04-2001, whi le the said vehicle proceeding from Sibsagar, with loaded begs of betel nut towa rds Nagaon, on the way at Kaliabor Darigaji, the vehicle met with an accident. T he occupants of the said vehicle including the claimant sustained grievous injur ies. The claimant/respondent No.1 sustained fracture injuries of his leg hip joi nt and he was shifted to Nagaon Civil Hospital but as no doctor was available in the hospital, he was taken to the private chamber of Dr. Durgeswar Bora, a Gene ral Surgeon. The doctor issued a physical disablement certificate to the claiman t, wherein, he opined that the patient later developed ’chronic osteoarthritis o f left hip with sciatica syndrome’. He also opined that the injury makes the pat ient about 25 % physically disabled and due to 25% disability the patient has lo st his earning capacity up to 50%.

#5. The learned Commissioner, Workmen’s Compensation, after inquiry awarded the compensation of Rs.1,65,753/- with a simple interest at the rate of 12% pe r annum on the said amount of compensation to be calculated with effect from 23 -04-2001 till deposit.

#6. The owner of the vehicle was made a party respondent No.2 in this appeal . By the order of this Court dated 22-02-2002, the name of respondent No.2, who is the owner of the offending vehicle, has been struck off.

#7. The compensation under Section 4(1)(c)(ii) can be assessed only in the e vent of permanent disablement, which is caused from that injury to the workman. In case of temporary disablement either total or partial, the workman is entit le to get compensation to be assessed under Section 4(1)(d) of the Act i.e. a ha lf- monthly payment of the sum equivalent to twenty-five percent of monthly wage s of the workman to be paid in accordance with the provisions of sub-section (2) .

#8. 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 labourer under the respondent No.2. The wag es of the claimant/ respondent No.1 was held Rs.3000/- per month. Considering hi s age and nature of injuries, the Commissioner, Workmen’s Compensation awarded c ompensation to the tune of Rs.1,65,753/- with simple interest @ 12% per annum w ith effect from 23-04-2001 till deposit. The appellant/ National Insurance Co. Ltd. was directed to deposit the entire amount within 30 days from the date of i ssue of the order.

#9. 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.3000/- without any documentary proof. Injury report of the doctor and physical disablement certificate suggest his age is 40 years at the relevant ti me of accident. Calculating from that angle, the age of the claimant/respondent No.1, at the time of accident, cannot be less than 40 years. The learned Commiss ioner also accepted the age of the claimant as 40 years. The rate of interest aw arded by the learned Commissioner from the date of accident has also been challe nged.

#10. Upon hearing the learned counsel appearing for the parties and on perus al of the judgment and award passed by the learned Commissioner, Workmen’s Compe nsation, the following substantial questions of law were formulated: 1. Whether the loss of earning capacity assessed by the doctor without specif ying the nature of disability with regard to which the workman become disabled i s in accordance with law?

#2. Whether the assessment of disability and the loss of earning capaci ty assessed by the doctor without examining the claimant on the date of depositi on or immediately preceding thereof and without following the provisions of Work men’s Compensation Act is admissible under the law ? 3. Whether the determination of compensation by the Commissioner under Sectio n 4(1) (c) without considering the provisions of Section 3, 4(1)(d), 7 & 11 of t he Workmen’s Compensation Act read with Rule 5 & 16 of the Rules is sustainable under the law ?

#11. 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 i njury or permanent total disablement resulting from the injury caused to him in an accident arising out of and in course of employment. Section-4 (1) (c) deals with 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 dis ablement as specified therein as being the percentage of the loss of earning cap acity caused by that injury. In this case, the injury suffered by the claimant/ respondent No.1 is neither specified in Part-II of the Schedule-1 nor in Sub-sec tion (ii) of the Schedule-1.

#12. Section 4(1)(d) deals with a temporary disablement, whether total or par tial, results from the injury. The amount of compensation payable as per Section 4(1)(d) of the Act is a halt-monthly payment of the sum equivalent to 25% of th e monthly wages of the workman to be paid in accordance with the provisions of s ub-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.

#13. The claimant/respondent No.1, in his evidence, admitted that he did n ot visit any Orthopaedic Surgeon. The doctor, in his oral evidence stated that t he patient had fracture at greater tubersity of left femure. He also opined tha t the patient had later developed ’Chronic Osteoarthritis of left hip with sciat ica syndrome’. In his cross-examination, he stated that there is no standard sca le for measuring the loss of earning capacity in case of non-scheduled injury. He also stated that the injury was a non-scheduled injury and was not based on t he scheduled of the Act. He opined that injury makes the patient about 25% physi cally disabled and due to this 25% disability the patient has lost his earning c apacity upto 50%. On enquiry, he opined that the physical disability of the cla imant/respondent No.1 is permanent in nature.

#14. 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.

#15. 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) (c) cannot, therefore, be a mechanical assessment, without regard being had to the percentage of loss of earning capacity in respect of the Sched ule-1 injuries.

#16. 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, it is t o be determined as to whether the workman has suffered from total disablement, whether of a temporary or permanent in nature, whether the injury incapacitates the workman from performing all the work in which he was capable of performing a t the time of accident resulting in such disablement and not in reference to the work, which he was performing before the accident.

#17. In this case, the doctor while assessing the loss of earning capacity of the workman did not have the regard to percentage of loss of earning capacit y in relation to injuries in Schedule-1 of the Act. The evidence of records does not suggest that the workman suffered permanent disability reducing the earning capacity in any employment, which he was capable to undertake at the time of ac cident. Therefore, it can be said that the workman has suffered temporary partia l disablement within the meaning of the Act.

#18. 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).

#19. 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. Unl ess adjudication is done, question of compensation becoming due does not arise. The position becomes clearer on a reading of sub-section (2) of Section 4 A. I t provides that provisional payment to the extent of admitted liability has to b e made when employer does not accept the liability for compensation to the exten t claimed. The crucial expression is (cid:28)falls due (cid:29). Significantly, legislature ha s not used the expression (cid:28)from the date of accident (cid:29). Unless there is adjudicat ion, the question of an amount falling due does not arise. (cid:29)

#20. 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 Commissioner shall direct the employer that the amoun t shall carry at the rate of 12% per annum or such higher not existing the maxim um of lending rates of any scheduled Bank as may be specified by the Central Gov ernment, by notification in the official gazette on the amount due.

#21. 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.

#22. 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 a ny extent. Hence, the compensation under Section 4 sub-section (2) was not due t o the employer while the accident occurred or the claimant lodged the claim peti tion. The compensation become due one month after the adjudication. The judgeme nt was delivered on 02-07-2003. Thus, the compensation along with the interest becomes due after one month of the adjudication.

#23. Herein this case, half of the monthly wages of the workman being Rs.1500 /-. He is entitled to Rs.1500/- under Section 4(1) (d), which is to be paid acco rding to the sub-section (2) of Section 4 of the Act for a period of during the disablement or during the period of five years from the date of accident.

#24. Accordingly, the case is remitted back to the learned Commissioner, Work men’s Compensation, Nagaon to review the award under Section 6 of the Act. The learned Commissioner, Workmen’s Compensation, Nagaon, shall work out the total a mount due and payable to the workman till date under Section 4(1) (d) of the Act and to release the same to the claimant/respondent No.1. The said amount shall carry interest at the rate of 12% per annum under Section 4A (3) of the Act.

#25. The learned Commissioner, Workmen’s Compensation shall make an endeavo ur to dispose of the matter within a period of one month from the receipt of the records along with a copy of this judgment and order. The parties are directed to appear before the learned Commissioner, Workmen’s Compensation, Nagaon.

#26. With the above observations and directions, this appeal stands disposed of. Send down the records forthwith.