New India Assurance Co. Ltd. vs Ajijul Haque and Others

Nishitendu Chaudhury, J.

This appeal under section 30 of the Workmen''s Compensation Act, 1923 is directed against the judgment and award dated 4.9.2002 passed by the Commissioner, Workmen''s Compensation, Nagaon in N.W.C. Case No. 202/2001. The case arose out of an accident occurred on 8.7.2001 at Dhupguri on National Highway No. 37 under Khetri Police Station. The claimant approached the Workmen''s Compensation Commissioner who assessed the compensation at Rs. 1,97,740/- presuming that claimant had suffered permanent partial disablement to the tune of 20% and consequently he had lost earning capacity to the tune of 40%. Facts are like this. One Ajijul Haque, as claimant, approached the Workmen''s Compensation Commissioner, Nagaon on 2.8.2001 stating that he was the driver of the vehicle No. AS-25/2987 belonging to opposite party No. 1, Radheshyam Chandra Mandal. While the vehicle was moving from Nagaon to Shillong carrying vegetables and bananas etc the vehicle met with an accident due to mechanical failure on 8.7.2001 at mid-night near Dhupguri on N.H. 37 under Khetri P.S. The truck turned turtle and one labour Rahmat Ali who was accompanying the goods, died on the spot. The driver and the handyman suffered injuries. According to the claimant, he was earning Rs. 4,000/- per month and because of the accident he was entitled to compensation to the tune of Rs. 1,50,000/-. The vehicle was covered by insurance of New India Insurance Company.

The claimant examined himself as PW 1 and one doctor, Durgeswar Borah as PW 2. He adduced Ext. 1 accident information, Ext. 2 medical certificate, Ext. 3 discharge certificate and Ext. 5 doctor''s certificate issued by Dr. Durgeswar Borah. In course of his deposition PW 2, Dr. Durgeswar Borah, stated that the patient came to him on 9.7.2001 after suffering from accident. He saw cut injuries and swelling and advised him to go to B.P. Civil Hospital. His elbow joint was swollen and so he was advised to undergo X-ray examination. His hand was plastered and the plaster was opened on 1.8.2001. The patient was advised to undergo physiotherapy treatment. He proved Ext. 2 and Ext. 5 as his certificates. In Ext. 5 he has described the patient to be 20% physically disabled resulting in 40% loss of earning capacity. Nowhere in his deposition he had stated that injuries were permanent and that there is no hope of full recovery of the same. In course of cross examination, he stated that he did not know the quantum of disability of the patient when he had first examined him and he had given him treatment. He could not say what was the quantum of disability immediately after the accident. The patient was suffering from osteoarthritis, was his reply to cross examination. Of course, he denied that there was no connection between chronic osteoarthritis and the accident. The claimant examined himself as PW 1 and he stated that he lost balance owing to head light of the vehicle coming from opposite side and ultimately his truck turned turtle. The businessman who was accompanying the goods died on the spot because of injury and he and the handyman were seriously injured. He took treatment under Dr. Durgeswar Borah. He claimed that there was fracture near his elbow joint and it was swollen. As per advice of Dr. Duregeswar Borah, he got admitted in the B.P. Civil Hospital, Nagaon and thereafter again received treatment from him. It is on the basis of these documents, the jurisdictional Commissioner passed judgment on 4.9.2002 holding that claimant is entitled to compensation to the tune of Rs. 1,97,740/- by presuming that he had lost earning capacity permanently to the extent of 40%. It is this judgment which has been brought under challenge in the present appeal.

While admitting the appeal on 21.2.2003, this Court did not frame any substantial question of law as required under section 30 of the Workmen''s Compensation Act, 1923. Under such circumstances, both the learned Counsel are heard and thereupon the following substantial question of law is framed :

"Whether the finding of the Workmen''s Compensation Commissioner that claimant had suffered permanent partial disability owing to incident is perverse?"

I have heard Ms. M Choudhury, learned Counsel for the appellant and Mr. DP Chaliha, learned Senior Counsel assisted by Mr. I. Ahmed for the respondent/claimant. None appears for the owner.

Pre-condition for granting compensation under section 4(1)(c)(ii) of the Workmen''s Compensation Act is that workman has to suffer permanent partial disability and this should be certified by a qualified medical practitioner. In the case in hand, the discharge certificate Ext. 3 does not reveal as to whether after 3 days of treatment in B.P. Civil Hospital, Nagaon when the patient was discharged, he was cured or not. Doctor''s certificate Ext. 5 does not make any whisper that disability of the claimant was owing to the motor accident in question. The doctor stated in the certificate that the patient was suffering from chronic osteoarthritis when he had examined. The doctor did not say in any specific terms that chronic osteoarthritis could have arisen as on the date of examination because of the accident or not. Accident resulted in his injury to the extent that there was fracture in the elbow joint. Ext. 5 and/or deposition of Dr. Durgeswar Borah, is silent as to whether complication resulting from the accident was permanent or not. Under section 4(1)(c)(ii), loss of income of workman is to be assessed on the basis of certificate given by a qualified medical practitioner. But such certificate has to be based on materials and on objective satisfaction. Neither Ext. 4 nor Ext. 5 makes any indication as to whether the fracture injury at the head of the right ulna can result in permanent physical disability of a patient aged about 25 years as revealed in Ext. 4. Since there is nothing either in the deposition of PW 2 (Dr. Durgeswar Borah) or in medical certificates (Exts. 4 and 5), the presumed opinion of the Workmen''s Compensation Commissioner that claimant suffered permanent partial disability is not sustainable. The finding is perverse. It is accordingly, set aside.

The doctor himself did not make any comment as to what was the physical disability of the claimant owing to the accident. He considered the disability of the claimant from the stand point of chronic osteoarthritis and from the stand point of the injuries suffered from the accident. This being the position, the certificate cannot be a certificate within the meaning of section 4(1)(c)(ii) of the Workmen''s Compensation Act, 1923. However, there was an accident and the claimant suffered fracture injury thereby. He might have sustained disability of temporary nature and in that event, his claim of compensation ought to have been calculated in terms of section 4(1)(d) of the Workmen''s Compensation Act, 1923.

The appeal stands, accordingly, allowed by deciding the sole substantial question of law in favour of the appellant. The Nagaon Workmen''s Compensation Commissioner shall decide the matter afresh in the light of provision of section 4(1)(d) of the Workmen''s Compensation Act, 1923. Since it is a claim case of 2001, the same shall be expeditiously disposed of preferably within a period of 2 months from the date of receipt of records.

No order as to costs.

Miscellaneous case No. 73/2003 is, accordingly, closed. Interim order, if any, stands automatically vacated.