New India Assurance Co Ltd vs Gias Uddin And Anr

Heard Mr. R. K. Bhatra, learned counsel appearing for the appellant. None appears on call for the respondents No. 1 and 2, i.e. the claimant as

well as the owner of the vehicle, despite service of notices.

The learned counsel for the appellant submits that pursuant to order dated 25.11.2013, as a part of the award, the appellant had deposited a sum of

Rs.1,50,000/before the learned Commissioner, Workmen’s Compensation, Tezpur, by Cheque No. 822548 dated 12.12.2013, which was duly

acknowledged by the Commissioner, Workmen’s Compensation, Tezpur. Therefore, it appears that the respondent No. 1 is fully aware of the

proceedings of this appeal. Therefore, in view of the non-appearance of the respondents No. 1 and 2 despite service of notice, the matter is heard

ex-parte against them.

This appeal under Section 30 of the Workmen’s Compensation Act, 1923 is directedagainst the judgment and order dated 19.04.2012, passed by

the learned Commissioner, Workmen’s Compensation, Tezpur, Zone III, in SWC Case No. 14/2011. The said appeal was admitted by this Court

by order dated 25.11.2013, on the following substantial question of law:-

“Whether the learned commissioner, Workmen’s Compensation, in view of the evidence of PW-2, Munin Borkotoky, was justified in awarding

the compensation under the provisions of Section 4 (1)(c)(ii) of the Employees’ Compensation Act?â€​

The case of the respondent No. 1/claimant is that he was employed as a labourer in atruck bearing Registration No. ASW-6735, owned by the

respondent No. 2. It was claimed that he was earning a monthly wage of Rs.6,000/- excluding allowances. In course of his employment, he was

travelling as a labourer on the said truck from Misa to Nagaon on 04.07.2010. On N.H.-37 at Rongagorah, to avoid accident with another vehicle, the

driver of the truck applied brakes, but the axel bar of the truck came out of the chasis and the truck turned turtle on the road at about 7 A.M. The

police took him for treatment to B.P. Civil Hospital, Nagaon. In the accident, he has claimed to have suffered grievous injuries. Later on, he was

treated privately and the said accident was registered as Samaguri P.S. G.D. Entry No. 07.04.2010. The respondent No.1 claimed that due to injury

he could not recover from his injury and could not perform his earlier job as labourer and therefore, made a claim for Rs.4,00,000/- with interest

thereon. Further, it was also claimed that the respondent No. 2, who was aware of the accident, had paid him some money for treatment and

therefore, no notice under Section 10 of the Workmen’s Compensation Act was necessary.

The appellant herein contested the claim petition and by taking usual plea, the liabilityto pay any compensation was disowned.

The respondent No. 1 examined himself as P.W. 1 and also examined one doctor asP.W. 2 and the following documents are exhibited viz.,

 (1) accident information report (Ext.1),

(2) prescription (Ext. 2 to 10),

(3) injury report and X-ray report (Ext. 11 to Ext. 13), and

(4) copy of notice under Section 10 (Ext. 14).

In respect of issue No. 1, the learned Commissioner had held that the respondent No.1 was working as the labourer in the concerned truck and he

was the employee within the meaning of clause I(c) of section 2(1)(dd) of the Workmen’s Compensation Act. In respect of issue No. 2, it was

held that the accident had occurred in course of and arising out of employment under the respondent No. 2. In respect of issue No. 3, it was held that

as per the evidence of the doctor (P.W. 2), the respondent No. 1 had suffered fracture in the both bones of right leg and in view of the assessment of

the doctor, it was held that the respondent No. 1 had suffered permanent partial disablement of 30% and had suffered a loss of earning capacity of

40% and the issues were decided in favour of the respondent No. 1. In respect of issue No. 4, on the basis of the medical records, it was held that the

respondent No. 1 was 23 years old at the time of the accident and holding the monthly income of the respondent No. 1 to be Rs.4,000/-,

compensation was computed as follows:-

a) 60% of the monthly wage of Rs.4,000/-PMÂ Â Â Rs.2400/-

b) Factor for 23 years of age                          Rs.219.95

c) Loss of earning capacity                                40%

d) Compensation due                                  Rs.2400 X 219.95 X 40%Â

  Total                                                     =

Rs.2,11,152.00 only.

   (Rupees two lakh eleven thousand one hundred fifty two only).

The award was directed to be paid within a period of one month from the date of the order failing which the appellant was directed to pay a simple

interest @ 6% per annum from the order date of realization.

The learned counsel for the appellant has submitted that no X-Ray plate has beenexhibited. Therefore, the primary evidence, however, not being

available, the X-Ray report could not have been a basis of holding that the respondent No. 1 suffered any fracture injuries. Moreover, it is submitted

that more severe injuries than the one suffered by the respondent No. 1, were entitled to lower loss of earning capacity as per the entries contained in

Schedule 1 of the Employees’ Compensation Act and in this context, it is submitted that more severe injuries like loss of one eye entitles one toÂ

loss of earning capacity of 40% whereas loss of all toes/feet etc. entitle compensation on account of loss of earning capacity by 20%, 30% and

40% and therefore, it is submitted that the assessment of loss of earning capacity assessed by the learned Commissioner is not sustainable. In this

context, by referring to the case of National Insurance Com. Ltd. Vs. Bimal Nath, 2009 1 GLT 370, it is submitted that loss of earning capacity is

required to be assessed in relation to any employment which the injured could have undertaken and therefore, the computation of loss of income by the

learned Commissioner is not sustainable without following the ratio laid down in the case of Bimal Nath (supra). It is also submitted that the award of

compensation without any assessment as to the period of disability is also not sustainable. It is also submitted that there was no medical evidence in

form of X-Ray plate as well as X-Ray reports to indicate that there was an onset of Osteo-arthritis in respect of the respondent No. 1. It is submitted

that X-Ray report (Ext. 13) dated 03.09.2010, indicated that joint spaces and articular margins are intact and therefore, it is submitted that the finding

recorded in the injury report (Ext. 11) was not sustainable in the light of the medical evidence available on record. It is further submitted that the

respondent No. 1 had filed the claim petition on 07.04.2011 and at that time, the said injury report (Ext. 11) was not in existence because the same

was signed on 21.12.2011, which can be seen at place containing the mark of Ext. 11(i). In this context, it is submitted that the doctor (P.W. 2) had

not certified in Ext. 11 i.e. the injury report that the doctor had examined any X-Ray plate or report, to find the onset of Osteo-arthritis. Further

questioning the correctness of the injury report, the learned counsel for the appellant has submitted that in the injury report (Ext. 11), it has been

recorded that the “Check X-ray showed that old fracture with mal-union both bones of tibia and fabula vide X-ray dt. 03.09.2010.†Referring to

the said x-ray report dt. 03.09.2010 (Ext. 13), it is submitted that as per the said x-ray report, the entry made therein is as follows :-

“Old fracture is seen at the lower thirds of both bones of right leg. Joint spaces and articular margins are intact. “

Therefore, it is submitted that the injury report (Ext. 11) was not believable because in one side, the doctor (P.W. 2), has referred that the fracture

was mal-united, whereas the xray report does not indicate the same. Therefore, in the absence of any x-ray plate, going by the x-ray report (Ext.12

and 13), neither any mal-united fracture was reported nor it contained a report of any sign of Osteo-arthritis when the articular margins are intact.

Having heard the submissions made by the learned counsel for the appellant and onexamining the records, this court has to agree with the

meticulous submissions made by the learned counsel for the appellant. It is seen that the learned Commissioner did not do the exercise of assessment

of loss of earning capacity with relation to any employment which the respondent No. 1 could not have undertaken. Moreover, having seen the X-Ray

report (Ext. 12 and 13), this Court is inclined to agree with the learned counsel for the appellant that there is no medical evidence of a mal-united joint

or of onset of Osteo-arthritis as opened by the P.W. 2 in his injury report (Ext.11). As per the New Concise Medical Dictionary, 4th Revised

Edition published by AITB Publishers, India, “Osteo-arthiritis is characterized by degeneration of the cartilage that lines joints or by osteophytes

which lead to pain and stiffness. Affected joints become enlarged and distorted by ostephytesâ€. Therefore, the X-Ray report dated 03.10.2010 (Ext.

13) would have indicated such a Medical Condition, which was conspicuously absent. Admittedly, the doctor (P.W.-2) is not a orthopaedic specialist.

Thus, the finding recorded in the injury report (Ext. 13) regarding the respondent No. 1 suffering from oesteo-arthiritis is found to be contrary to the

Medical Prescription and X-Ray reports on record. Thus, this Court is compelled to discard the contents of the injury report (Ext. 11). Therefore, this

appeal is allowed by holding that the assessment of the disability at 30%, on loss of earning capacity of 40% is not sustainable merely on the basis of

entries made in the injury report (Ext. 11) as the contents of the said injury report is not found to be sustainable from the X-ray reports indicated

above. In view of the ratio laid down by the Hon’ble Apex Court in the case of Golla Ranjana Vs. Divisional Manager, (2017) 1 SCC 45, wherein

the Apex Court had held that the Commissioner, Workmen’s Compensation is the last authority on facts, this Court is not inclined to make it own

assessment as to the loss of earning capacity and the nature of disability suffered the respondent No. 1. Therefore, this Court is inclined to allow the

appeal by remanding the matter back to the learned Commissioner, Workmen’s Compensation, Sonitpur, Tezpur for a fresh decision in

accordance with law by granting an opportunity of hearing to both sides, if require, by adducing additional evidence.

It is needless to say that as the appeal has been allowed, the appellant is exemptedfrom making any further payment of the awarded sum.

However, it is provided that the amount already withdrawn by the respondent No. 1 would be subject to the outcome of the fresh trial.

Before parting with the records, this Court is inclined to observe that when theappellant had filed the written statement, the said injury report did

not exist in the record of the learned Tribunal and therefore, the introduction of a document subsequently without notice to the appellant is found to be

contrary to the provisions of Rule 21(3) of the Workmen’s Compensation Rules, 1924. It is found from the LCR that no leave was obtained from

the learned Commissioner for introduction of document which was not produced within the time specified in sub-Rule (1) or (2) of Rule 21. Therefore,

it is expected that the learned Commissioner, Workmen’s Compensation, Sonitpur, Tezpur, shall scrupulously follow the provisions of Rule 21 of

the Workmen’s Compensation Rules so that for technical reasons, the award passed in claim cases in the beneficial legislation of Employees

Compensation Act, 1923 are not frustrated for non-compliance of the various provisions of the Act and Rules framed thereunder.

The appeal stands allowed with the order of remand as indicated above.

Let the LCR be returned back.

The appellant, who is duly represented by their learned counsel shall appear before thelearned Commissioner, Workmen’s/Employees

Compensation, Sonitpur, Tezpur on 03.09.2018, and by producing a certified copy of this order, the appellant shall seek further instructions from the

said learned Commissioner.