Oriental Insurance Company Limited, Divisional Office Mythe v. Manager

Shri Prem Lal S/o Sh.Ganpat Ram, R/o Village Thana, P.O. Baroti, Tehsil Sundernagar, District Mandi, H.P. … … …Applicant-Respondent General Manager Associated Cement Corporation, Barmana, District Bilaspur, H.P. Sh.R.C. Thakur s/o not known, Contractor, Associated Cement Corporation Barmana, District Bilaspur, H.P. R/o Village & P.O. Tatoh, Tehsil Sundernagar, District Mandi, H.P. … … …Respondents. Appeal under Section 30 of the Workmen’s Compensation Act, 1923. Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 No. For the Appellant: Mr.G.D. Sharma, Advocate. For Respondent No.1: Mr.Umesh Kanwar, Advocate vice Mr.Shrawan Dogra, Advocate. For Respondent No.2: Mr.K.D. Sood, Senior Advocate with Mr.Sanjeev Sood, Advocate. For Respondent No.3: Mr.Avneesh Bhardwaj, Advocate vice Mr.Ajay Mohan Goel, Advocate. Dev Darshan Sud,J. This appeal has been instituted by the appellant against the award of the Commissioner under Workmen Compensation Act (S.D.M.) Sunder Nagar, District Mandi. The appeal was admitted on 28.2.2007. No specific question of law was recorded as being required for consideration of this Court.

1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2

The appeal was taken up for consideration on

13.6.2012, on which date the only point raised for consideration was that the award could not be sustained as disability certificate Ex.P-2 was not proved by the doctor in accordance with law. The appellant relied upon the decision of this Court in S.J.V.N. Ltd. & Another vs. Smt. Dolma & Others, Latest HLJ 2010 (HP) 579 to urge that in the absence of proof, the Medical Certificate cannot accepted. In circumstances, by order of this Court dated 13.6.2012, the case was remanded to the Tribunal for granting an opportunity to the parties to lead evidence with respect to Ex.P-2. The parties were granted full opportunity to present their case before the learned Tribunal below.

On remand, the learned Civil Judge (Senior Division), Court No.1, Sunder Nagar (now exercising the powers of the Commissioner, under the Workmen Compensation Act), took up the case for decision afresh on the veracity of Ex.P-2.

The case was taken up on 16.7.2012. The Court records that respondent No.2 before the Commissioner, Shri R.C. Thakur, was not present. Statement of Dr.Amarjeet, Orthopedic Surgeon, was recorded. He stated in evidence that he had examined the claimant whom he identified in the Court. He then stated that disability certificate Ex.AW-3/A (earlier Ex.P-2) bears his signatures and has been signed by him 3 at point `A’. The injury can be caused by crushing under a power hammer. In cross-examination he submits that the disability mentioned in Ex.AW-3/A relates to the amputation of the fingers of the hands and that percentage of the disability in the certificate is with respect to the limbs and not the whole body.

Learned counsel for the appellant submits that the petitioner-claimant is not totally disabled since the doctor himself has stated that the injury is only relatable to the limbs and not to the entire body. In these circumstances, he submits that even if the certificate Ex.AW-3/A is accepted for what it states, it cannot be said that the petitioner-claimant is disabled from earning his livelihood.

The submissions of the appellant cannot be accepted for the reasons that it is the fingers of the hands of the petitioner which have been totally crushed/amputated. In these circumstances, it cannot be said that he is able to perform manual work of a Khalasi.