New India Assurance Com. Ltd vs Md. Abdul Kalam And Anr

Heard Mr. K. K. Bhatta, learned counsel for the appellant. None appears on behalf of the respondents though notice had been served on them in the substituted manner through newspaper publication in two widely circulated daily news papers viz. "The Assam Tribune" and "Dainik Asom" on 20.02.2019.

This appeal under Section 30 of the Worksmen's Compensation Act, now renamed as the Employee's Compensation Act ("the Act", in short), is directed against the judgment and award dated 25.03.2009 passed by the learned Commissioner for the Worksmen's Compensation, Sonitpur, Assam ("the WC Commissioner", in short) in S.W.C. Case No. 9/2008. By the said judgment and award, the learned W.C. Commissioner had awarded an amount of Rs. 2,30,947/- to the respondent no. 1-claimant for the permanent partial disablement resulted from the injuries sustained by him in a motor accident that occurred on 19.03.2007, which arose out of and during the course of his employment as a labour of the vehicle bearing registration no. AS-02/B-6817, a Tata mobile pick-up van, involved in the said accident. Further direction was made to the appellant-insurer of the vehicle bearing registration no. AS-02/B-6817 ("the subject-vehicle", in short), to deposit the said awarded amount with the learned W.C. Commissioner for disbursement to the respondent no. 1-claimant within 30 (thirty) days from the date of receipt of the judgment and award, in default, to pay interest @ 12% p.a. on the said awarded amount from the date of the order to the date of realization. Assailing the said judgment and award dated 25.03.2019, the appellant-insurer has preferred the present appeal.

Mr. Bhatta, the learned counsel for the appellant has assailed the impugned judgment and order on the grounds that the respondent-claimant did not suffer any permanent partial disablement from the injuries he had sustained in the accident, referred above. His further submission is that the nature of disablement resulted from the injuries sustained by the claimant, at best, could be considered to be a case of temporary partial disablement under Section 4(1)(d) of the Act, but the learned W.C. Commissioner, despite evidence to the contrary, went on to assess the amount of compensation by treating the same to a case of permanent partial disablement under the provisions of Section 4(1)(c) of the Act. By making a reference to the testimony of PW-2, he has submitted that the Doctor had issued the disability certificate without adhering to the requisite procedure, required to be followed in a such case. There was no appropriate assessment of the extent of disability, be it permanent or temporary, by the Doctor and there is an error in assessment of the loss of earning capacity, which resulted into an amount of compensation which is much higher than what ought to have been awarded. He has in support of his submission, placed reliance in a decision of this Court in National Insurance Company vs. Robin Bodo, reported in MANU/GHC/0605/2017.

I have considered the submissions advanced by the learned counsel appearing for the appellant and also perused the materials available in the records of S.W.C. Case No. 9/2008, in original.

As has been indicated above, the respondent-claimant was an employee under the respondent no. 2, the owner of the subject-vehicle, as a labour. The claimant had stated that his monthly salary was Rs. 4,000/- per month and he was paid a daily allowance of Rs. 30/-per day. It was stated by him that on 19.03.2007, while the subject-vehicle was proceeding from Shillongoni towards Nagaon town for loading of raw materials as per instruction of the owner, with him as the labour in the subject-vehicle, it met with an accident at Kawoimari near the Check Gate. The accident had occurred when the driver of the subject-vehicle knocked down one bullock cart at about 7-00 a.m. As a result of the accident, the claimant claimed that he sustained grievous injuries on his left side of chest wall and on left clavicle. After the accident, the police personnel from Nagaon Police Station took the claimant immediately to the nearest hospital for treatment wherein the claimant was treated. But he was not cured and used to feel acute pain on left shoulder joint and over the chest. Subsequently, treatment was taken at Nagaon and Tezpur Civil Hospital respectively. When he found that he could not move his left hand as before, for pain, for which he became unable to do his earlier job as a labour in any vehicle. Seeking compensation under the provisions of the Act, he instituted the application before the learned W.C. Commissioner, which was registered and numbered as S.W.C. Case No. 9/2008.

During the proceedings before the learned WC Commissioner, the respondent no. 2 as the employer of the respondent-claimant and the owner of the subject-vehicle did not appear despite service of notice and the case proceeded ex-parte against him. The appellant-insurer contested the case by filing its written statement denying the claim of the respondent-claimant. In support of the claim application before the learned WC Commissioner, the respondent-claimant examined 2 (two) witnesses including himself as PW-1. He also examined one doctor, Dr. Munin Barkataki as PW-2. The appellant had cross-examined both the said witnesses though it did not adduce any evidence on its behalf.

Though the claimant claimed that he was paid a monthly salary of Rs. 4,000/- per month with a daily allowance of Rs. 30/- per day, the WC Commissioner due to lack of documentary evidence on record, deemed it appropriate to consider an amount of Rs. 3,500/-per month as his salary as a labour. Having taken the age of the claimant as 23 years on the basis of the available medical records, the WC Commissioner adopted the relevant factor equal to 219.95, as per Schedule-IV to the Act. Treating the case of the claimant as that of permanent partial disablement, the WC Commissioner assessed the compensation as : "60% of Rs. 3,500/- X 219.95 X 50% = Rs. 2,30,947.50". The said amount has been rounded off to Rs. 2,30,947/-.

From the aforesaid assessment, it is evident that the learned WC Commissioner had taken loss of his earning capacity of the claimant to be 50% on the basis of permanent disability of the claimant to extent at 35%. Primarily assailing the said assessment of loss of earning capacity to the extent at 50%, the appellant has preferred this appeal and on the basis of the said assailment, the following substantial questions of law were formulated :

(1) Whether the learned Commissioner was justified in assessing the loss of earning capacity at 50% for 35% partial disability sustained by the claimant/workman?

(2) Whether for the injury sustained by the claimant, his earning capacity is reduced every employment?''

As the appellant has not assailed the factum of accident and sustaining of injuries of the claimant in the said accident, further deliberation on these aspects appear not necessary. It is only in respect of the assessment of loss of his earning capacity due to the injuries sustained in the accident by the claimant, the learned counsel for the appellant has confined his submissions.

In order to appreciate the issue as to whether the learned WC Commissioner was justified in the assessment of the loss of earning capacity of the claimant at 50%, a re-visit to the testimonies of the witnesses as well as the documentary evidence brought on the record is found necessary. The claimant in his testimony as P.W.1, had deposed to the effect that as a result of the accident, he sustained grievous injuries on his left chest wall and on left clavicle. He further stated that he was treated at Nagaon and Tezpur Civil Hospital as advised by the doctor at the Nagaon Civil Hospital. When he was taken to the Civil Hospital at Nagaon, X-Ray was done and thereafter, plaster was applied on his left shoulder and POP was applied on his fractured clavicle chest. Thereafter, he took treatment at the Tezpur Civil Hospital and also from one doctor, Dr. Munin Barkataki (P.W.2) at his chamber at Nagaon, who removed the plaster but he continued to feel acute pain on the left shoulder joint and over the chest. He was not cured fully though he had taken hot fomentations and medicines as advised by the doctor. As a result of the injuries, he was unable to do his duties of loading and unloading of goods and he was unable to continue his earlier job as a labour only because of the injuries. He exhibited 19 nos. of documents as Exb.-1 to Exb.-19 including the Accident Information Report, X-Ray report and injury report. In his cross-examination by the appellant-insurer, he asserted the fact that he was a labour, employed at the time of the accident in the subject-vehicle. He denied the suggestion that despite of injures he could continue the job. He admitted that he was referred to the Gauhati Medical College, but he could not take the treatment there due to lack of money. For the very same reason, he could not go outside for better treatment.

P.W.2 who stated to have treated and assessed the personal disability of the claimant, had exhibited an injury report dated 11.09.2008 as Exb-4. P.W.2 in his evidence, had stated that the claimant came to his private chamber at Nagaon, on 24.03.2008, complaining of pain in the chest and left clavicular region. He examined the previous documents and found that the claimant was initially treated at the Civil Hospital at Nagaon and the injury was old. The claimant made complaint of pain and swelling in the left chest region. The treatment was found POP in the clavicular region and after examination, he found that the claimant had suffered the following injuries-

1) Fracture in the 2nd to 9th ribs (left side) as per X-ray report;

2) Fracture on the lateral third of the left clavicle as per X-ray report; and

3) Multiple abrasions on both extremities.

He stated to have removed the PoP after 6 (six) weeks of its application and advised physiotherapy and prescribed medicines but in the case of the claimant, physiotherapy did not improve the condition. Further testimony of P.W.2 was that in the case of claimant, he found no improvement when he examined the claimant on 11.09.2008 and he found that the claimant had developed osteo-arthritis on left chest and left clavicular region. He stated that such condition would cause difficulty in respiration and raising of the hand or any object. On the basis of his assessment, P.W.2 had stated that the claimant would not be able to do his earlier job. On the basis of such findings, he assessed the physical disability of the claimant to the extent of 35% and consequently, the same had reduced the claimant's earning capacity to the extent of 50%. He had categorically stated that physical disability of the claimant is permanent in nature. During cross-examination, P.W.2 stated that he was not a member of the District Medical Board but he denied the suggestion that the claimant had no permanent disablement to the extent of 35%. He also denied the suggestion that there was no basis for him to assess the loss of earning capacity to the extent of 50%. It was stated by him that though he advised the claimant to come back to him but the claimant did not return to him thereafter. He also admitted that he was not a specialist in orthopedics. But at the same time, he denied that the claimant could not suffer @ 35% permanent disability for the fracture injuries sustained by him.

At this stage, it is apt to refer to the background facts involved in the case of Robin Bodo (supra), relied on by the learned counsel for the appellant. Like in the instant case, the claimant, a handyman, involved therein had suffered injuries in a motor vehicular accident and the doctor (P.W.2), who had examined him and issued a medical certificate, had stated, in his cross-examination therein, that he was not aware what work the claimant therein was doing. The medical certificate exhibited therein did not mention that the claimant was incapacitated to carry out the work which he was doing prior to time of the accident. Such finding was challenged on the ground that the medical certificate was issued without knowing the work which the claimant therein was carrying out and in such a situation, the certificate cannot be held to be in consonance with the provisions of the Act. The statement was made by the doctor therein that of 20% disability suffered by the claimant therein could be either permanent or temporary and he further stated that there could be same relief to the claimant if he had taken treatment from specialist orthopedic doctor and in such situation, there was possibility of reduction of the disability. It was in the context of such evidence on record, this Court found that the certificate of injury which was given on the basis of external examination, was found unsustainable for that fact that the doctor did not say that 20% disability suffered by the claimant was permanent or temporary. For the said reasons, the assessment made by the doctor was held to be not as per Section 4(1)(c)(ii) of the Act.

I have duly considered the observations in Robin Bodo (supra) and the evidence on record in the case on hand and it cannot be said that fact situation obtaining in the two cases are wholly similar. Nothing has been elicited from the cross-examination of the doctor in the present case as against his assertion in the examination-in-chief that the disablement of the claimant was permanent in nature. Only suggestions were put that there was no disablement to the claimant to the extent of 35% and there was no basis for him to assess the loss of earning capacity to extent of 50%, which were denied. In the present case, the doctor had stated, in his cross-examination-in-chief, that the claimant in view of the injuries sustained, have difficulties in raising of the hand and objects and thus, the claimant could not be able to do his earlier job. By referring to the difficulties in raising in objects, the doctor had clearly referred to the work of the claimant as a labour in the pick-up van. The said statement was clearly made by the doctor in reference to the work of loading and unloading of goods, carried out by the claimant as his employment. The submission of learned counsel for the appellant that the kinds of injuries stated to have been suffered by the claimant should be assessed by a doctor specialist in orthopedics is not found in the Act. Explanation-II to Section 4(2)(c) states that in assessing the loss of earning capacity for the purpose of sub-clause(ii), the qualified medical practitioner shall have due regard to the percentage of loss of earning capacity in relation to different injuries specified in Schedule-I and Section 2(i) has provided the definition of qualified medical practitioner. From the provisions of the WC Act, it is evident that a qualified medical practitioner can assess the extent of permanent disablement, permanently or temporarily caused by the injuries sustained, and also can assess the loss of earning capacity in consideration of the nature of employment the claimant used to carry out prior to the date of accident. But when such assessment of permanent disability and loss of earning capacity are sought to be challenged, it is also incumbent on the part of the opposite party to assail such findings specifically. But in the instant case, from the nature of cross-examination that was made to the doctor who issued the certificate regarding extent of permanent disability and who deposed about the extent of permanent disability and loss of the earning capacity, should have been confronted specifically in respect of the same. But on examination of the evidence on record, nothing can be found to persuade this Court to arrive at any other finding other than the finding that had been arrived at by the learned W.C. Commissioner.

In respect of the substantial questions of law which were formulated in the instant case, the evidence on record have been re-visited to find out whether there were sufficient grounds to reverse the said findings. On re-appreciation, the answers to the substantial question of law are found to be not in favour of the appellant. Consequently, this appeal is found to be devoid of merit and accordingly, the same is dismissed.

LCR to be returned accordingly.