Oriental Insurance Co. Ltd. vs Md. Taibur Rahman And Anr

(1) Heard Mr. S.K. Goswami, learned counsel for the appellant. Also heard Mr. S. Ali, learned counsel for the respondent No.2, who is the owner of

the offending vehicle.

(2) By this appeal under section 30 of the Workmen’s Compensation Act, theappellant has challenged the judgment and order dated 16.08.2007

passed by the learned Commissioner, Workmen’s Compensation, Nagaon in NWC Case No.24/2005.

(3) The case projected by the respondent No.1/ claimant is that while driving thevehicle bearing registration No.AS-02/3855 owned by the respondent

No.2 herein, on 09.01.2005 at about 3:15 p.m., the said vehicle met with an accident at Rangaloo under Nagaon P.S. As a result of the accident, the

respondent No.1 suffered grievous injuries. The said accident was registered under Nagaon P.S. Case No.30/2005 under section 279/337/338 IPC.

Claiming to have suffered permanent disability, the respondent No.1 had filed a claim petition before the learned Commissioner, Workmen’s

Compensation, Nagaon, and claimed compensation of Rs.5,00,00/- (Rupees Five lakh only).

(4) In support of the claim petition, the respondent No.1 examined himself as PW-1and he also examined the Doctor, as PW-2. The following

documents were exhibited by the respondent No.1: (1) Driving Licence, Ext.1, (2) accident information report, Ext.2, (3) Certificate by Medical board,

Ext.3, (4) Prescription and Medical vouchers, Ext.4 to 17, (5) Notice under section 10 of the Workmen’s Compensation, Ext.18.

(5) The appellant had contested the case by filing its written statement and takingusual plea they had denied their liability. However, no witness was

examined by the appellant.

(6) On the basis of the evidence on record, the learned Commissioner had acceptedthe finding by the medical board by holding that the respondent

No.1 had suffered physically disabled to the extent of 40%. On the basis of the answer given on the question put by the Court, the Doctor (PW-2) had

stated that the respondent No.1 had lost his earning capacity by 100%. Accordingly, accepting the monthly income of respondent No.1 to be

Rs.3000/month, the learned Commissioner had assessed the compensation as follows: 60% of Rs.3000/- X 197.06 X 100% = Rs.3,54,708/- (Rupees

Three lakh fifty four thousand seven hundred and eight only). The said amount was awarded with 12% interest from 30 days of passing of the said

order.

(7) Heard the submissions made by the learned counsel for the appellant as well asthe respondent No.2.

(8) It is seen that the PW-1 had admitted in his cross-examination that no plasterwas applied to the fracture or at the hospital where he was first

treated. He had admitted that after the accident he had stayed in his home for one month and thereafter he went to Patna. He further admitted that

after the accident, his driving licence had expired and he had got the same renewed. The Doctor (PW-2) had admitted in his cross-examination that

without treatment for one month, the patient would not be able to stay. On perusal of the impugned judgment it is seen that the learned Commissioner

had referred to materials Ext.1 to 9 being X-Ray plate. However, none of those X-ray plates are available on record There is no order in the order-

sheet about the return of the X-ray plates to the respondent No.1. The learned Commissioner had recorded that the medical board had advised for

fresh X-ray and the same is found to be marked as Ext.111 in the order. However, the said exhibit is also not available on record. It appears to be

very strange that the Doctor’s prescriptions marked as Ext.4 to 17, which indicates medical reports issued by doctors/ hospital at Patna where the

respondents No.1 was treated, being Ext.7, 9, 10, 11, 12, 13, 14, 15, 16 and 17, it is seen that none of the documents contain any discharge slip from

the hospital and none of the medical documents reflected any note from the doctor indicating that there was any shortening of the right leg and almost

on all the documents it is mentioned that there was a fracture in right femur with K-nail done at Patna. There is no note by any doctor that the

respondent No.1 was operated upon for removal of any bone part which can lead to the shortening of the leg. It is not even the pleaded case of

respondent No.1 that due to the injuries suffered there was any shortening of the right leg of the respondent No.1. Under the circumstances, the

opinion of the medical board that there was shortening of the right leg by 1 (one) inch cannot be co-related to the accident of the respondent No.1,

which he had suffered on 09.01.2005.

(9) As observed herein before that there is no note in the order sheet that the X-rayplates which are reflected in the order as material Exts-1 to 9 as

well as Ext.111 were returned back to the respondent No.1. Under the circumstances, the non-transmission of the X-ray plate does not inspire the

confidence of the Court on the correctness of the judgment passed by the learned Commissioner, Workmen’s Compensation.

(10) On a perusal of the medical reports referred above i.e. Ext.4 to Ext.17 as well as as per the contents of the notice under section 10 (Ext.18)

and the claim petition, it is seen that nowhere it is mentioned that there was a shortening of the right leg of the respondent No.1. Therefore, this Court

finds that the opinion of the medical board is also no sustainable. Moreover, there was no pleading in the claim petition that the respondent No.1 had

suffered loss of earning by 100% and the respondent No.1 himself led no evidence about his alleged loss of earning capacity by 100%. Therefore, the

sole basis of quantification of loss of earning capacity is the Court question put to the doctor (PW-2), who had not made any statement in his evidence

as to whether the loss of earning capacity was assessed by taking into consideration of any other employment which could have been carried out by

the respondent No.1, the said finding of the loss of earning capacity by 100% is not found sustainable on the basis of materials available on record.Â

(11) Therefore, on the absence of the material exhibits, the substantial questions oflaw as formulated could not be answered in the absence of medical

reports i.e. Ext.1 to 9 and Ext.111 referred to the impugned order.

(12) Ordinarily, this Court would not have given any opinion on the non-sustainabilityof the impugned judgment as well as the opinion of the medical

board (Ext.3). However, as the opinion of the medical board is not found to be backed up by any medical record, this Court is inclined to remand the

matter back for fresh decision by the learned Commissioner, Workmen’s Compensation, Nagaon. However, it is now provided that if any medical

opinion is required to be procured, the same may be done from the medical board constituted by the Principal, Gauhati Medical College and Hospital,

who would also opine whether the shortening of the right leg of the respondent No.1 was due to the accident which was suffered on 09.01.2005 based

on the medical evidence which is available on record.

(13) Moreover, this Court finds that the order passed by the learned Commissioner,Workmen’s Compensation is contrary to the law laid down by

this Court in the case of National Insurance Company Limited Vs. Bimal Nath, reported in 2009 (1) GLT 370, wherein this Court had mandated that

the Commissioner, Workmen’s Compensation is resigned to award compensation by taking note of the loss of earning capacity in any employment

in which the injured could have gainfully employed and as that aspect of the matter was not considered by the Commissioner, this Court is compelled

to remand back the matter for a fresh decision. Therefore, the judgment and order dated 16.08.20007 passed by the learned Commissioner,

Workmen’s Compensation, Nagaon is set aside.

(14) In view of the judgment passed by the Hon’ble Apex Court in case of Golla Rajanna Vs The Divisional Manager and anr., (2017) 1 SCC 45,

wherein it was held that the Commissioner, Workmen’s Compensation is the last authority on facts. Bound by the said authority, this Court is not

inclined to make an assessment as to the percentage of disability or loss by earning capacity so as to decide the entitlement of the respondent No.1 to

any compensation.

(15) In view of above, as the impugned judgment and award stands set aside, it isprovided that the balance 50% of the awarded compensation lying in

the office of the learned Commissioner, Workmen’s Compensation be refunded back to the appellant.

(16) As this Court finds that the interest of the owner of the vehicle (respondentNo.2) stands duly indemnified by the appellant herein. It may not be

necessary for the respondent No.2 to contest the fresh trial on remand of this case, before the learned Commissioner, Workmen’s Compensation,

Nagaon. Therefore, until the said learned Tribunal requires the presence of the respondent No.2 herein (owner of the vehicle, his appearance is

dispensed with.

(17) The appellant shall appear before the learned Commissioner, Workmen’sCompensation, Nagaon on 20.08.2018 by producing the certified

copy of this order, shall seek further instructions from the said learned Commissioner.

(18) It is provided that while deciding the matter afresh, the learned Commissioner,Workmen’s Compensation (now Employees Compensation)

shall not be influenced by any observations made herein. However, the learned Commissioner shall take a note of advice that when sending the LCR,

it shall ensure that all the exhibits including the material exhibits like X-ray plates should be sent to this Court.

(19) Send back the LCR.