High Court
Case Details
MFA 44/2006 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT & ORDER (Oral) This appeal under Section 30 of the Workmen’s Compensation Act, 1923 (now Employees’ Compensation Act, 1923), by the Insurance Company is direct ed against the award dated 1st April, 2005 passed by the learned Commissioner, W orkmen’s Compensation, Nagaon, in W.C. Case No.184/2002, whereby and whereunder an amount of Rs.95,306/- has been awarded as compensation together with simple i nterest @ 12% per annum with effect from 6th March, 2002, i.e. from the date of accident till the date of filing the claim petition.
Legal Reasoning
[2] The respondent No.1 has filed a claim application contending int er alia that while he was employed as a labourer by the owner of the truck beari ng registration No.ASZ-1191, the vehicle met with an accident on 6th March, 2002 at about 11:30 AM, resulting in the grievous injuries sustained by him on his b ody, arising out of and in course of his employment. It has further been conten ded that he was paid Rs.3,000/- per month and his age was about 28 years. [3] The owner of the vehicle entered appearance before the learned C ommissioner and filed written statement admitting the employment, salary, accide nt arising out of and in course of employment as well as the injuries sustained by the workman. The appellant/Insurance Company has also filed their written sta tement refuting the contention of the claimant in the claim petition and denied the responsibility of payment of compensation. The claimant in support of his claim examined himself, apart fro [4] m Dr. Durgeswar Bora, Senior Medical & Health Officer of B.P. Chaliha Civil Hosp ital, Nagaon, who has issued the medical certificate being Exhibit-5. The owner as well as the Insurance Company, however, did not examine any witness though th e Insurance Company has cross examined the witnesses examined by the claimant. [5] The learned Commissioner upon appreciation of the evidence on re cord, both oral and documentary, passed the award, as aforesaid. Hence, the pre sent appeal. [6] The appeal was admitted for hearing vide order dated 27th April, 2011 on the following substantial questions of law:- Whether the claimant not having suffered any permanent partial disabilit (cid:28)1. y within the meaning of the expression used in the Workmen’s Compensation Act, 1 923 and in absence of any finding reached in that regard in accordance with law, the Commissioner below had acted legally in computing the quantum of compensati on as per the provision of Section 4(1)(c) and not 4(1)(d) of the Workmen’s Comp ensation Act, 1923 as amended up to date ? 2. Whether the assessment of the disability and loss of earning capacity ha s been assessed with due regard to the provisions of the Workmen’s Compensation Act, 1923? 3. Whether, the payment of daily allowance being dependant on the attending of work, the Commissioner below has acted rightly in including the amount of da ily allowance towards assessing the salary of the claimant? 4. Whether, the claimant not having served the appellant with any notice as required under Section 10 of the Workmen’s Compensation Act, the Commissioner b elow had acted reasonably and justifiably in directing the appellant to pay inte rest over the amount of compensation awarded by him? (cid:29) [7]
Legal Reasoning
I have heard Mr. S. Dutta, learned counsel for the appellant and Mr. M.A. Sheikh, learned counsel appearing for the respondent/claimant. [8] Mr. Dutta, learned counsel referring to the award passed by the learn ed Commissioner, Workmen’s Compensation, as well as the evidence adduced by the claimant has submitted that in the absence of any finding relating to the perman ent partial disability within the expression used in the 1923 Act, the learned C ommissioner ought not to have taken the loss of earning capacity as 30% and pass the award under Section 4(1)(c)(ii) of the Act. It has further been submitted t hat the injury sustained being of temporary nature, the claimant at the most wou ld be entitled to compensation under Section 4(1)(d) of the 1923 Act. Mr. Dutta further submits that the learned Commissioner also ought not to have awarded in terest @ 12% with effect from the date of the accident. [9] On the other hand, supporting the award passed by the learned Co mmissioner, Mr. Sheikh, learned counsel submits that the learned Commissioner, b ased on Exhibit-5, medical certificate, has rightly assessed the amount of compe nsation payable at Rs.93,306/- under Section 4(1)(c)(ii) of the Act, apart from passing the order for interest @ 12% per annum from the date of accident, as the claimant was deprived from enjoyment of the amount of compensation payable to h im. [10] I have considered the submissions advanced by the learned counse l appearing for the parties and also perused the records, including the evidence adduced. [11] The factum of employment, occurrence of accident in course of an d in arising out of the employment and the nature of injuries sustained, i.e. fr acture on L-4 Spine and tenderness and swelling, apart from the monthly wage and age of the claimant are not in dispute, so also the contract of insurance betwe en the appellant /Insurance Company and the registered owner of the vehicle belo nging to the employer. Hence, those aspects have not been gone into in the pres ent case. The issue involved in the present case is relating to the quantum of compensation awarded, which, according to the appellant, ought to have been awar ded under Section 4(1)(d) and not under Section 4(1)(c)(ii) of the aforesaid Act . [12] It appears from the impugned order that the learned Commissioner without recording any finding whether the injuries sustained by the workman hav e resulted in permanent partial disablement within the meaning of 1923 Act, has awarded the compensation under Section 4(1)(c)(ii) of the Act. A workman in case of temporary disablement, whether total or partial, results from injury, would not be entitled to compensation under Section 4(1)(c) but in Section 4(1)(d) of the Act. Be that as it may, since the accident occurred in the year 2002 and th e injuries sustained by the claimant No.1 is not in dispute, I am of the view th at instead of prolonging the life of the litigation by remanding the proceeding to the learned Commissioner, the proceeding can be finally decided by this Court , even if the compensation ought to have been awarded under Section 4(1)(d) of t he 1923 Act. Having regard to the injuries sustained and the period of sufferan ce, I am of the view that the claimant would be entitled to an amount of Rs.50,0 00/- even under Section 4(1)(d) of the Act. [13] Hence, the award passed by the learned Commissioner stands modif ied to that extent. The said amount shall carry interest @ 7‰% from the date of filing claim petition upto the date of expiry of 1(one) month from the date of passing of the award by the learned Commissioner and thereafter, 12% per annum t ill the date of realization. [14] The aforesaid amount alongwith the interest shall be deposited b y the Insurance Company before the learned Commissioner, Workmen’s Compensation, Nagaon, within 2(two) months from today, since no dispute is raised relating to the contract of insurance. On such deposit, the said amount shall be released i n favour of the claimant, by an account payee cheque, on being duly identified t o the satisfaction of the learned Commissioner, Workmen’s Compensation, Nagaon. [15] [16] The appeal is accordingly partly allowed. No costs.