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High Court Of Calcutta
Bhaskar Bhattacharya, Amit Talukdar
NATIONAL INSURANCE CO.LTD. - Appellant
Versus
SUSANTA DAS - Respondent
F. M. A. 1404 Of 1997
Decided On : 06/28/1999
WORKMEN'S COMPENSATION - LOSS OF EARNING CAPACITY - 100% LOSS - SCHEDULE-I OF THE ACT - INTERPRETATION - COURT ANALYSIS AND CONCLUSION - EVIDENCE - FINDINGS OF FACT - INTERFERENCE - PURE QUESTION OF LAW - INJURY TO LEFT HAND - LOSS OF EARNING CAPACITY - ASSESSMENT - DOCTOR'S EVIDENCE - RELIABILITY - COURT'S DISCRETION - PAYMENT OF COMPENSATION - MANNER OF PAYMENT - SECTION 8(6) OF THE ACT - INTERPRETATION - INTEREST ON COMPENSATION - APPELLATE COURT'S POWER TO AWARD - ABSENCE OF APPEAL OR CROSS-OBJECTION BY CLAIMANT - COURT'S INABILITY TO MODIFY AWARD IN FAVOR OF CLAIMANT.
Fact of the Case:
Respondent No. 1, a 'khalasi' of a vehicle insured with the appellant Insurance Company, suffered injuries in an accident while on duty. He filed a claim for compensation under the Workmen's Compensation Act, alleging 100% loss of earning capacity due to the injuries. The Commissioner awarded compensation accordingly.
Finding of the Court:
The Commissioner's findings on the age of the applicant, relationship of master and servant, rate of salary, nature of injury, and the factum of the accident were based on uncontroverted evidence and were not interfered with by the Court.
Issues: 1. Whether the loss of one hand, in this case, the left hand, amounts to 100% loss of earning capacity? 2. Whether the Commissioner erred in relying on the Doctor's evidence and concluding that the claimant suffered 100% loss of earning capacity? 3. Whether the Court can modify the award to direct payment of interest on the compensation amount from the date of the accident, in the absence of an appeal or cross-objection by the claimant?
Ratio Decidendi: 1. The Court held that the Commissioner rightly relied on the Doctor's evidence and concluded that the claimant suffered 100% loss of earning capacity. The Schedule-I of the Act prescribes 100% loss of earning capacity only in cases of loss of both hands or loss of a hand and a foot. However, the Court found that the Doctor's evidence clearly established that the claimant was unfit for the job of a 'khalasi' of a vehicle and had sustained permanent total disablement of 100%. 2. The Court rejected the appellant's contention that the claimant should be awarded only 50% loss of earning capacity because he had lost only one hand. The Court held that the Doctor's evidence was reliable and provided a sufficient basis for the Commissioner's conclusion. 3. The Court held that it could not modify the award to direct payment of interest on the compensation amount from the date of the accident because the claimant had not filed an appeal or cross-objection against the award. The Court noted that Section 8(6) of the Act mandates the Commissioner to pay the compensation amount to a claimant who is not a woman or a person under legal disability, and that the Court could not pass a direction to the detriment of the appellant in an appeal preferred by the Insurance Company.
Final Decision: The Court dismissed the appeal filed by the Insurance Company, upholding the Commissioner's award of compensation for 100% loss of earning capacity.
( 1 ) THIS appeal under Section 30 of the Workmen's Compensation Act is at the instance of the Insurance Company and is directed against an Award dated March 5, 1997 passed by the 2nd Commissioner for Workmen's Compensation, West Bengal in Claim Case No. 524 of 1995 thereby awarding a sum of Rs. 1,05,895/- on the ground of 100% loss of earning capacity.
( 2 ) THE respondent No. 1 lodged the aforesaid claim case on the grounds that he was working as a "khalasi" of the Vehicle No. WGE 2377 owned by the respondent No. 2 and insured with the appellant, that on June 3, 1994 on its way to Calcutta from Santipur, the vehicle met with an accident, as a result, the respondent No. 1 received injuries in both hands, shoulder, waist and back, that he was initially treated at Ranaghat Sadar Hospital and subsequently at Kalyani Hospital and a surgical operation was done in the said hospital in the left hand and that he had suffered 100% loss of earning capacity. In the said application he described his monthly wages as Rs. 1500/- a month and claimed a lumpsum payment of Rs. 1,05,895/- for loss of 100% earning capacity and further claimed penalty and interest from the date of accident.
( 3 ) THE aforesaid claim case was not contested by the respondent No. 2, the owner of the vehicle. The appellant however contested the claim by filing written statement.
( 4 ) AT the time of hearing of the aforesaid case, the claimant himself deposed as P. W.-1, a "co-khalasi" of the vehicle and eye witness of the accident gave evidence as P. W.-2 and the Doctor certifying 100% loss of earning capacity figured as P. W.-3. The appellant adduced no evidence to contradict the evidence given on behalf of the respondent No. 1.
( 5 ) THE learned Commissioner, on the basis of the materials on record, accepted the case of the respondent No. 1 that he was aged 28 years and was in the employment of respondent No. 2 as a 'khalasi' of the vehicle insured with the appellant and that he suffered a loss of 100% earning capacity due to such accident and thus passed the award impugned in this appeal.
( 6 ) MR. Das, the learned advocate appearing on behalf of the appellant at the outset challenged the findings of the Commissioner on all the points viz. age of the applicant, relationship of master and servant between respondent No. 2 and the applicant, rate of salary, nature of injury and even the factum of accident.
( 7 ) AFTER going through the materials on record we find that all the findings recorded by the learned Commissioner are based on appreciation of uncontroverted evidence adduced on behalf of the respondent No. 1 and any prudent man from the materials on record will come to such findings. Therefore, there is no scope of interference with such findings of fact based on evidence in this appeal under Section 30 of the Workmen's Compensation Act.
( 8 ) MR. Das has however raised a pure question of law in support of this appeal.
( 9 ) ACCORDING to Mr. Das, even if the case of the respondent No. 1 as regard the injuries is accepted, it is a case of loss of only left hand; but such injury does not come within any of the items Nos. 1 to 6 as mentioned in Schedule-I of the aforesaid Act. Mr. Das contends that only in the cases of Serial Nos. 1 to 6 of Schedule-I, the Commissioner can declare 100% loss of earning capacity. Mr. Das submits that in case of loss of both hands or loss of a hand and a foot as specified in Serial Nos. 1 and 2 respectively, the Commissioner declares 100% loss of earning capacity. Mr. Das opines that this is a case where the Commissioner ought to have held that the respondent No. 1 lost 50% of earning capacity, having lost only the left hand. In support of such contention Mr. Das has relied upon the following decisions: a) Dhrubendra Ray v. Biswanath Agarwal and Anr. (1994-II-LLJ- 947) (Ori)b) New India Assurance Co. Ltd. v. Chittaranjan Sandha and Anr. 1996 ACJ 35 (Orissa)c) New India Assurance Co. Ltd. v. Bhagaban
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