Sunil Jindal vs Bhimsen Toppo and Another

D.R. Deshmukh, J.—The appellant is aggrieved by an award dated 17.5.2007 passed by the Commissioner for Workmen''s Compensation, Labour Court, Raigarh (henceforth ''the Commissioner") in Case No. 92/W.C. Act/2005/[Non-Fatal] whereby compensation of Rs. 2,99,419/- was awarded.

This appeal involves the following substantial questions of law:

Whether the order dated 17.5.2007 passed by the Commissioner for Workmen''s Compensation, Labour Court, Raigarh in Case No. 92/W.C. Act/2005 is liable to be set aside because:

(a) for want of medical evidence, the Commissioner was not justified in assessing liability to pay compensation u/s 4 Sub-section (1) Sub-clause (c) (ii) of Workmen''s Compensation Act, 1923?

(b) Whether the principles of natural justice have been violated because sufficient opportunity to adduce evidence was not afforded to the appellant/employer?

Shri Amit Sharma, learned Counsel for the appellant urged that the impugned award is liable to be set aside because as mandated by Section 4 (1)(c)(ii) of the Workmen''s Compensation Act, 1923 (henceforth "the Act"), medical evidence to prove disability sustained in the accident was not adduced by the claimant. It was also urged that the disability certificate on which the Commissioner relied for awarding compensation was filed after recording the evidence of the claimant. It was also urged that not affording sufficient opportunity for summoning witnesses for the employer, the Commissioner closed the case on 17.4.2007, which is contrary to the principles of natural justice.

On the other hand, Ms. Sharmila Singhai, learned Counsel for respondent No. 1 argued in support of the impugned award.

Having heard rival contentions, I have perused the record of Case No. 92/W.C. Act/20Q5/[Non-Fatal]. The claimant''s evidence was recorded on 21.9.2006 and the matter was adjourned to 30.10.2006. On 30.10.2006, the claimant had filed a disability certificate issued by the In-charge, C.H.C. Community Health Centre, Pharsabahar showing that the claimant had suffered 50% permanent disability and condition of the claimant was likely to improve. It also shows that the condition of the claimant is non-progressive. Both these conditions were contrary.

In Shyam Sunder Agrawal v. Jawahar Prasad and Ors. decided by this Court in M.A.(C) No. 40/2007 on 4th February, 2008, it was held that the words "the evidence of any medical witness shall be taken down as nearly as may be word for word" appearing in the second proviso to Section 25 makes it mandatory for the Commissioner to record evidence of medical witness. It is for the claimant to establish the nature of disability suffered which could be done only by leading medical evidence. Section 4(1) (c) (ii) of the Act also requires that the fact of permanent partial disablement as assessed by the qualified medical practitioner has to be taken into consideration.

In Sub Area Manager, West Chirimiri Colliery, S.E.C.L. v. Asuh Kumar Curia, decided by this Court in M.A.(C.)No.27/2007 on 31st of August, 2007, it was held by this Court that without examining the doctor giving the certificate of disability in favour of the claimant and affording an opportunity to the appellant/employer to cross-examine the medical witness on the question of disability, the finding recorded by the Commissioner that the claimant had suffered 95% disability due to accident could not be sustained as being contrary to law of natural justice. In both the cases mentioned above, the matter was remanded to the Commissioner. In view of the decision rendered by this Court in abovementioned cases, the award passed by the Commissioner while recording the finding of 50% permanent disability sustained by the claimant, is liable to be set aside.

A perusal of the record of Case No. 92/W.C. Act/2005/[Non-Fatal] shows that the appellant/employer had paid process fee for issuance of notice to its witnesses Krishna Kumar and Kush Sharma. Although, the notice on Kush Sharma was served yet he did not appear. Another witness-Krishna Kumar was not served. Learned Counsel for the employer had prayed for an adjournment for producing the witnesses] on the next date which was also turned down and the evidence of the employer was closed, I am of the considered opinion that before recording finding on the nature of disablement suffered by the claimant, the Commissioner ought to have recorded medical evidence in support of the fact of disablement suffered by the claimant. One opportunity ought to have been granted by the Commissioner to the employer to produce its witnesses.

In the result, the appeal is allowed. The impugned award passed by the Commissioner is set aside. The matter is remitted to the Commissioner for giving reasonable opportunity to the claimant for adducing medical evidence to prove the nature of disablement suffered by him and also for giving one opportunity, to the employer for producing his witnesses. After giving such opportunity to the parties, the Commissioner shall expeditiously decide the Case No. 92/W.C. Act/2005/[Non-Fatal] preferably within a period of 3 months from the date of receipt of a copy of this order. On application, the amount deposited by the appellant/employer before the Commissioner, shall be refunded.