ORIENTAL INSURANCE CO. LTD. vs DEWCHARAN PRASAD and ANR

Heard Mr. S. Dutta, the learned counsel for the appellant as well as Mr. M.H. Rajbarbhuiyan, the learned counsel appearing for the respondent

No. 1/ claimant.

This appeal under Section 30 of the Workmen''s Compensation Act, 1923 is preferred against the judgment and award dated 20.11.2007,

passed by the learned Commissioner, Workmen''s Compensation, Nagaon in N.W.C. Case No. 17/2003. The appeal has been admitted for

hearing on the following substantial question of law by order dated 26.03.2010.

(i) Whether while assessing compensation, the learned Commissioner could have included, within the wages, daily allowances, paid to the

workman?

(ii) Whether acceptance of 40% loss of earning capacity by the learned Commissioner, while assessing and awarding the compensation is tenable

in law?

(iii) Any other question or questions, which may be allowed to be raised by the Court at the time of hearing of this appeal?

The case in brief is that the respondent No. 1 was employed as a handyman of truck bearing registration No. MNP-2798, which was owned by

the respondent No. 2. On 18.02.2001 while coming from Doboka towards Nagaon, the said vehicle met with an accident at Arjuntal on N.H. 36

due to mechanical defect. The Nagaon P.S. registered a case vide G.D.E. No. 344 dated 18.02.2001. The respondent No. 1 claimed that he was

32 years old and used to earn Rs.5,000/- per month including daily allowance. The said vehicle was duly insured with the appellant. By filing the

claim petition, the respondent No. 1 claimed compensation of Rs.3,00,000/- with interest @ 18% per annum. The appellant as well as the owner

of the vehicle i.e. respondent No. 2 submitted their written statement. In his written statement, the respondent No. 2 disclosed that the vehicle was

duly insured with the appellant. He admitted the employment and income of the respondent No. 1.

In support of his claim, the respondent No. 1 examined himself as PW.1 and the Doctor who was treating him was examined as PW.2 and the

respondent No. 1 exhibited the following documents, viz. prescription of the Doctor (Exbt.1, 2 and 3), Injury Report dated 02.08.2005 (Exbt.4).

The appellant did not examine any witness.

The learned Commissioner, by relying on the evidence of Doctor (PW.2), observed that following the accident, the following injuries were found

on the person of the respondent No. 1/claimant, (i) swelling, tenderness and restriction of movement of left knee joint and observed that X-ray

showed fracture of left patella, (ii) multiple infected abrasions over the both extremities, and held that on cross-examination of both the PWs.,

nothing adverse had come out and the learned Commissioner arrived at a finding that the respondent No. 1/claimant had succeeded in proving the

injury and the resultant disablement. Accepting the evidence of the Doctor (PW.2), it was held that the injuries have made the respondent No.1

physically disabled by 20% and he has lost his earning capacity by 40%. Accordingly, holding the appellant liable to pay compensation, his salary

was taken to be Rs.3500/- per month and compensation was calculated as follows:

60% of Rs.35,00/- X 203.85 X 40% = Rs.1,71,7234/-

The said amount was ordered to be paid together with 12% interest from the date of the adjudication till realization.

The learned counsel for the appellant has fairly submitted that it has been well settled that daily allowance paid to a workman forms a part of the

monthly wages earned by the workmen. Hence, he has not pressed the substantial question of law No.1. Accordingly, in respect of the said

substantial question of law No. 1, it is held that the daily allowance paid to a workman forms part of wages and, as such, there is no infirmity in

accepting the daily allowance as part of wages by the learned Commissioner.

The learned counsel for the appellant submits that the assessment of loss of earning capacity at 40% by the learned Commissioner was contrary

to the evidence on record as well as considering the Schedule-I Part-II appended to the Workmen''s Compensation Act. It is submitted that far

higher degree of disablement like loss of thumb and its metacarpal bone, loss of all toes of both feet, loss of vision of one eye etc., entitled an

injured person to 40% loss of earning capacity and under the said Workmen''s Compensation Act, 1923, as such, when in the present case, the

respondent No. 1 suffered the disability of restrictive movement of left knee joint owing to fracture of left patella, the acceptance of loss of earning

capacity at 40% was far in excess of the disablement prescribed in Schedule-I Part-II of the Workmen''s Compensation Act. The learned counsel

for the appellant has referred to the evidence of Doctor (PW.2) and stated that the Doctor has merely suggested that the disability suffered by the

respondent No. 1 ''may'' reduce his earning capacity by 40% and, as such, it was not a specific opinion that there was actual loss of earning

capacity by 40%. Moreover, in his cross-examination, the Doctor (PW.2) has stated that the problem of chronic osteoarthritis gets cured by

physiotherapy. Therefore, it is submitted that the finding on disability and loss of earning capacity was wrongly decided and is liable to be interfered

with in this appeal.

Per-contra, the learned counsel for the respondent No. 1 has made his submission in support of the impugned judgment and award. It is

submitted that after the accident on 18.02.2001, the respondent No. 1 was treated as an indoor patient at B.P. Civil Hospital from 18.02.2001 to

21.02.2001 and that the Doctor (PW.2) had found swelling tenderness and restrictive movement of left knee joint, which shows the respondent

No. 1 suffered fracture of left patella and moreover, owing to the accident, he had suffered multiple infected abrasion over both the extremities.

Moreover, the Doctor (PW.2) had opined that the injury No. 1 was grievous for which the respondent No. 1 had been developing chronic

osteoarthritis in the left knee joint and left ankle joint which had made him 20% physical disabled and therefore, there is no infirmity in holding that

the respondent No. 1 had lost his earning capacity by 40%. It is submitted that the evidence of the Doctor and the contents of the disability

certificate (Exbt.4) issued by him could not be dislodged during his cross-examination. Hence, it is submitted that the appeal be dismissed by

affirming the award.

On a perusal of the records, it appears that although the accident information report had been filed on record, the same was not marked as an

exhibit. Similarly, the salary certificate issued by the employer, the discharge slip issued by Bhogeswari Phukanani Civil Hospital, Nagaon and the

X-ray report issued by the B.P. Civil Hospital, Nagaon were not exhibited. In the discharge slip of the hospital, the said un-exhibited document on

record, does not show that the injured had a fracture of the left patella. No X-ray plate has been exhibited. Therefore, it is not known that the un-

exhibited X-ray report dated 20.02.2007 was in respect of which X-ray plate. As admitted in the claim petition, the accident had occurred on

18.02.2001. But in the prescription of the Doctor (PW.2) dated 22.02.2001, there is no indication that any plaster of Paris was applied at the

fracture area. However, in prescription dated 27.03.2001 (back page of Exbt.1), it is recorded about plaster of Paris removal and the reference to

fracture of patella is referred in prescription dated 18.12.2001 (Exbt.2) and prescription dated 07.08.2003 (Exbt.3). Thus, it cannot be said that

the respondent No. 1 has been successfully able to prove his disability even by preponderance of probability.

On a perusal of the claim petition, there is no indication about percentage of disability and the percentage of loss of income. The claim petition

was filed on 22.01.2003, it is only by way of the injury report dated 02.08.2005 (Exbt.4), the Doctor (PW.2) has certified that the respondent

No. 1 had suffered 20% physical disablement permanently and the loss of earning capacity is reduced by 40%. In the said certificate, it is

mentioned that now the patient has been developing chronic osteoarthritis. But the reading of the said certificate does not reflect that the patient

was examined on 02.08.2005 because the Doctor had certified that the respondent No. 1 was examined on 22.02.2001. There is no prescription

of the Doctor (PW.2) on the date of 22.02.2001. In the absence of any mention in Exbt. 4 i.e. the injury report that the Doctor had examined the

respondent No. 1 on 02.08.2005, it cannot be accepted that the patient was developing chronic osteoarthritis on the date when the certificate was

issued. The physical condition of the respondent No. 1 on 02.08.2005 was not recorded in the injury report (Exbt.4). The Doctor (PW.2) did not

get any X-ray examination of the respondent No. 1 done. Therefore, without recording of the physical or the clinical condition of the respondent

No. 1 on 02.08.2005, this Court is not inclined to accept the injury report (Exbt.4) as a proof of disability or reduction of earning capacity by 40%

and physical disability by 20%. The said certificate merely records the condition of the injured on 22.02.2001.

It is seen that in the cross-examination of PW.1, he had admitted that in the claim petition, the date of accident was 18.12.2002, but he stated

that accident had occurred on 18.01.2001. On a perusal of the claim petition, it appears that the date of accident is corrected to 18.02.2001,

therefore, from the nature of admission made in the crossexamination, it appears that as per the claim petition, the date of accident was

mentioned/typed as 18.12.2002. No doubt that was a typing error, nevertheless such error is required to be corrected only with the permission of

the learned Commissioner. In the present case in hand there is no order by the learned Commissioner, allowing correction and/or amendment of

the claim petition. However, the said act has not prejudiced this Court in any manner.

Coming to the contents of Exbt.4, it is seen that the said certificate was issued on 02.08.2005 whereas the claim petition was filed on

22.01.2003. Hence, the said injury report (Exbt.4) appears to have come on record after the claim petition was filed. There is no order allowing

the said injury report (Exbt.4) to be filed on record. In this connection this Court would like to refer to the provisions of Rule 21 of the Workmen''s

Compensation Rules, 1924. Sub-rule (1) requires that when the application for relief is based upon a document, the document shall be appended

to the application. Under Sub-rule (2), any other document which a party desires to tender in evidence shall be produced at or before the first

hearing and under Sub-rule (3) there is a bar that any document which is not produced at or within the time specified in Sub-rule (1) and (2) would

not without the sanction of the learned Commissioner be admissible in evidence on behalf of the party who should have produced it. Therefore, the

said injury report dated 02.08.2005 (Exbt.4) was not on record when the appellant had submitted their written statement.

In the absence of the X-ray plate, this Court is of the opinion that the X-ray report, though un-exhibited, was only a secondary evidence and,

as such, in the absence of the primary evidence i.e. X-ray plate, a mere mentioning by a Doctor in prescription that there was a fracture on left

patella cannot be termed as a conclusive evidence or even a acceptable evidence of such injury. Similar adverse inference is further required to be

drawn because the accident information report of the police has also not been exhibited by the respondent No. 1/claimant.

However, on a perusal of the said accident information report, it appears that there was indeed a road traffic accident involving the respondent

No. 1 on 18.02.2001, therefore, the provisions of Workmen''s Compensation Act, 1923, being a beneficial legislation, a lapse on part of the

respondent No. 1 in proving document which is found on record cannot be permitted to defeat the intent of the said Act, which would frustrate

very purpose of the Workmen''s Compensation Act.

For the reasons as discussed above, the substantial question of law No. 2 is answered in the negative and in favour of the appellant by holding

that the learned Commissioner had erred on facts and in law in accepting loss of earning capacity. Hence this appeal deserves to be allowed.

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, as such, 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 respective evidence to prove their respective stand. Needless to mention that the learned

Commissioner shall not be prejudiced/influenced by the observation made above.

The appellant as well as the respondent No.1, who are duly represented by their learned counsel herein, are directed to appear before the

learned Commissioner, Workmen''s Compensation, Nagaon on 12.03.2018 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.