NEW INDIA ASSURANCE CO LTD vs MOTIUR RAHMAN AND ORS

Heard Mr. S. Dutta, learned counsel for the appellant. None appears on call for the respondents although the notices have been duly served.

This appeal under Section 30 of the Workmen''s Compensation Act, 1923 has been filed against the judgment and award dated 17.07.2004

passed by the learned Commissioner, Workmen''s Compensation, Nagaon in N.W.C. Case No. 289/2001. The appeal has been admitted for

hearing on the following substantial question of law by order dated 08.01.2018.

(i) Whether the loss of earning capacity can be assessed by the Doctor whimsically without there being any basis for determination of the same?

(ii) Whether interest on the awarded amount of compensation can be imposed from the date of the accident?

As per the claim petition, the respondent No. 1 is the driver of the Maruti Van bearing registration No. AS-02-A/6037, belonging to

respondent No. 2. While driving the said vehicle from Nagaon towards Panigaon Sankar Mission Chariali, it met with an accident. It was stated

that while trying to save a woman, who suddenly came running before the car, the respondent No. 1 took the vehicle towards extreme side of the

road and as a result the vehicle dashed against the telephone post and the respondent No. 1 sustained grievous injury. The traffic branch of

Nagaon P.S. registered a case vide G.D.E. No. 78 dated 04.06.2001 and investigated the occurrence and the respondent No. 1 was taken to

B.P. Civil Hospital for treatment. The respondent No. 1, by filing a claim petition before the learned Commissioner, Workmen''s Compensation,

sought for compensation of Rs.5,00,000/-. The respondent No. 2 as well as the appellant filed their written statement and contested the claim.

While the appellant denied the claim, the respondent No. 2 admitted the accident, the employment and the salary of the respondent No. 1 and

disclosed that the offending vehilce was insured with the appellant.

In support of his case, the respondent No. 1 examined himself as PW.1 and a Doctor as PW.2 and exhibited following documents, viz.,

Accident Information Report (Exbt.1), Admission/Advice Slip of Nagaon Civil Hospital (Exbt.2), Prescription/Advice slip of B.P. Civil Hospital,

Nagaon/Dr. D. Bora (Exbt.3 and 4) X-Ray Report dated (Exbt.5) and Medical Certificate of disablement (Exbt.6). The learned Commissioner

framed the following issues for determination of the claim:

Is there any cause of action for the claim petition?

Whether the claim petition is maintainable in its present form?

Whether the injuries received in a vehicular accident was arising out of and in the course of employment?

Whether the O.Ps. are liable to pay compensation?

If so, what relief the claimant entitled to?

In respect of issue No. 1, it was held that there was cause of action for the claim petition. In respect of issue No. 2, it was held that the claim

petition was maintainable. In respect of issue No. 3, it was held injury suffered by the respondent No. 1 had occurred in accident arising out of and

in course of employment. In respect of issue No. 4, it was held that at the relevant time, the respondent No. 1 was employed by the respondent

No. 2 and as the relationship between the employee and employer was established, the appellant was held to be entitled for compensation. In

respect of issue No. 5, the income of the respondent No. 1 was taken to be Rs.3,500/-. The learned Commissioner disbelieved the loss of 40%

earning capacity as stated in the injury report on the ground that the Doctor did not take due regard to the Schedule of injuries under Part-II of

Schedule-I of the Workmen''s Compensation Act. The monthly income was accepted at Rs.3,500/- per month and the loss of earning capacity

was assessed at 35% instead of 40% as opined by the Doctor and the compensation was awarded as follows:

35% of Rs.2,100/- X 178.49 = Rs.1,31,190.15.

The respondent No. 1 was held to be entitled to simple interest @ 12% per annum w.e.f 04.06.2001 i.e. the date of the accident till deposit of the

awarded sum.

Heard the submission made by the learned counsel for the appellant.

On a perusal of the materials on record, it is seen that the respondent No. 1 did not exhibit any X-ray plate, but reliance was placed only on the

X-ray report (Exbt.5). In the opinion of this Court, in the absence of the X-ray plate, no reliance can be placed on the X-ray report alone, which is

nothing but the impression of the Radiologist of his reading of the X-ray plate, therefore, a report is nothing but secondary evidence. It is further

seen that the learned Commissioner had relied on the certificate (Exbt.6) issued on 10.05.2002 by the Doctor (PW.2). It is seen as per certificate

that the assessment of physical disability was at 20% and the loss of earning capacity of 40% was recorded. The record reveals that the claim

petition was filed on 21.09.2001, and the first order in the case was passed on 06.10.2001. The order sheet of the proceeding of N.W.C. Case

No. 289/2001, does not disclose that the copy of the said injury report (Exbt.6) was introduced in the record by obtaining any order from the

learned Commissioner, which appears to be in violation of the provisions of Rule 21 of the Workmen''s Compensation Rules, 1924.

It is seen that prior to the mention of physical disability and loss of earning capacity as recorded in the injury report (Exbt.6), there was no

material before the learned Commissioner to show that on the date when the claim petition was filed, the respondent No. 1 had suffered any

disability or any resultant loss in his earning capacity. Therefore, the said injury report (Exbt.6) was procured by the respondent No. 1 after about

seven months from the date of filing of the claim petition and, as such, the said document appears to be made for the purpose of creating evidence

before the learned Commissioner. The said injury report (Exbt.6) dated 10.05.2002 does not disclose the clinical examination of respondent No. 1

by the Doctor. There is no X-ray plate or a fresh X-ray report in or around the date of the said report i.e. as on 10.05.2002, showing the

development of ""Chronic Osteo-arthritis"" in the right elbow joint of the respondent No. 1. There is no evidence on record that the Doctor who had

issued the certificate was an Orthopedic Doctor qualified to diagnose the on-set of such a disease in the absence of X-ray plate. In order to

understand the said disease, the dictionary meaning is quoted below:

As per ""New Concise Medical Dictionary published by AITBS Publishers (2008 Revised Edition)"". ''Osteoarthritis'' is defined as- ""It is a large

joint disease of an old age. It is characterized by degeneration of the cartilage that lines joints or by osteophytes which lead to pain and stiffness.

Lastly, joint may lose its function. Osteoarthritis causes pain, swelling, cracking and stiffness of one or more joints. Pain and stiffness may interfere

with activities. Weakness of surrounding muscles may occur if pain prevents joint movements. Affected joint becomes enlarge and distorted by

osteophytes. There is pain in motion. X-ray shows cartilage loss and osteophytes formation. Non-steroidal antiinflammatory drugs (NSAIDs) help

the person.

It is in reference to such injury that this Court is inclined to refer to the observation made by the Hon''ble Apex court in the case of Raj Kumar

Vs. Ajay Kumar & Anr., (2011) 1 SCC 343 . The relevant paragraph 11 is quoted below:

The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the

extent of permanent disability. Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil

suit, but as an active explorer and seeker of truth who is required to ''hold an enquiry into the claim'' for determining the ''just compensation''. The

Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the ''just compensation''. While dealing

with personal injury cases, the Tribunal should preferably equip itself with a Medical Dictionary and a Handbook for evaluation of permanent

physical impairment (for example the Manual for Evaluation of Permanent Physical Impairment for Orthopedic Surgeons, prepared by American

Academy of Orthopedic Surgeons or its Indian equivalent or other authorized texts) for understanding the medical evidence and assessing the

physical and functional disability. The Tribunal may also keep in view the first schedule to the Workmen''s Compensation Act, 1923 which gives

some indication about the extent of permanent disability in different types of injuries, in the case of workmen. If a Doctor giving evidence uses

technical medical terms, the Tribunal should instruct him to state in addition, in simple non-medical terms, the nature and the effect of the injury. If a

doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of

disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If the percentage of permanent

disability is stated with reference to a limb, the Tribunal will have to seek the doctor''s opinion as to whether it is possible to deduce the

corresponding functional permanent disability with reference to the whole body and if so the percentage.

Referring to the aforesaid passage and observation made by the Hon''ble Supreme Court, this Court is inclined to hold that in the absence of

any medical evidence disclosing the on-set of Osteo-arthritis subsequent to the filing of the claim petition, it was the duty of the learned

Commissioner to at least arrived at a finding that the on-set of such disease was a result of the suffering of the fracture in accident which had

occurred on 04.06.2001. The said injury report (Exbt.6) does not state that the disease of ""Chronic Osteo-arthritis"" was a result of the accident.

Although this Court does not take cognizance of the x-ray report of right elbow joint (Exbt.5), the said report, however, discloses that ""joint paces

and articular margins are intact"". Therefore, as per Exbt. 5 i.e. x-ray report, on the date when the injury was taken there is no deformity of the

portions were x-ray was done. Therefore, in the absence of any document on record by virtue of which this Court can give a definite finding that

the one-set of Osteo-arthritis was a result of the accident. Accordingly, the finding recorded by the learned Commissioner on issue No. 4 and 5

are not found to be sustainable. Resultantly, the substantial question of law No. (i) is answered by holding that the assessment of the loss of earning

capacity was done without there being any basis for determination of the same and the question is answered in favour of the appellant and against

the respondent No. 1/claimant.

Insofar as the second substantial question of law is concerned, in view of the decision rendered in the case of Oriental Insurance Co. Ltd. Vs.

Paran Narzary, 2012 (4) GLT 718 , it is no longer res-integra that as per the provisions of Section 4A (3), the date on which the compensation fell

due is subsequent to one month from the date of passing of the judgment. Hence, the award of interest can be applied after the default has been

committed after the passing of one month from the date of the judgment. Hence, the award of interest is also not found sustainable from the date of

the accident and, as such, the second substantial question of law No. (ii) is answered in favour of the appellant and against the respondent No.

1/claimant.

As the respondent No. 1 is a Workman, and has suffered an accident, keeping in mind the intent of the workmen''s Compensation Act, 1923,

which is a beneficial legislation, the respondent No. 1 must be afforded one opportunity to prove his case. Therefore, in view of the ratio laid down

in the case of Golla Ranjanna Vs. Divisional Manager, (2017) 1 SCC 45, where the Hon''ble Apex Court has held that the Commissioner is the

last authority of facts, this Court is inclined to remand the matter back for fresh decision before the learned Commissioner, Workmen''s

Compensation, Nagaon. The remand is as per the provisions of Order XLI Rule 23-A CPC. The learned Commissioner shall permit the parties to

lead their evidence afresh to prove their respective stands. Needles to mention that the learned Commissioner shall not be prejudiced/influenced by

the observation made above.

It is provided that the awarded sum already disbursed to the respondent No. 1 shall be subject to outcome of the fresh trial. However, the

undisbursed amount, lying with the learned Commissioner, Workmen''s Compensation, Nagaon shall be refunded back to the appellant.

The appellant, who are duly represented by their learned counsel herein, is directed to appear before the learned Commissioner, Workmen''s

Compensation, Nagaon on 23.03.2018 and by producing the certified copy of this order, shall seek further instruction from the said learned

Commissioner.

This appeal stands allowed. There shall be no order as to costs.

Let the LCR be returned forthwith.