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High Court Of Calcutta
SAMARESH BANERJEE, Gorachand De
NEW INDIA ASSURANCE COMPANY LIMITED - Appellant
Versus
BHARAT YADAV ALIAS B.P.YADAV - Respondent
F. M. A. 138 Of 1998
Decided On : 09/14/2001
WORKMEN'S COMPENSATION - ASSESSMENT OF LOSS OF EARNING CAPACITY - MEDICAL PRACTITIONER'S ASSESSMENT - NECESSITY - WORKMEN'S COMPENSATION ACT, 1923, SECTION 2(1), 4(1) - AMENDMENT ACT 22 OF 1984.
Fact of the Case:
Bharat Yadav, a khalasi in a truck owned by Kuljit Singh, sustained injuries in an accident while working. He filed a claim for compensation under the Workmen's Compensation Act, 1923, against Kuljit Singh and the insurer, New India Assurance Company Limited.
Finding of the Court:
The Commissioner found that Bharat Yadav sustained injuries in the accident, was 21 years old at the time of the accident, and earned a monthly wage of Rs. 1000. The Commissioner also found that the offending vehicle was insured with New India Assurance Company Limited.
Issues: 1. Whether the claimant sustained any permanent partial disablement involving loss of earning capacity and, if so, to what extent? 2. What was the age and monthly wage of the claimant at the time of the accident? 3. Is the Insurance Company liable to pay any compensation?
Ratio Decidendi: 1. The Amendment Act 22 of 1984 introduced a specific provision for assessment of loss of earning capacity of the workman by a qualified medical practitioner. 2. The medical practitioner in this case failed to assess the loss of earning capacity as required by the Act. 3. The Commissioner failed to assess the actual loss of earning capacity on the basis of the evidence required under section 2 (1) and section 4 (1) of the Act.
Final Decision: The appeal was allowed, the judgment and order of the Commissioner were set aside, and the proceedings were remanded to the Commissioner for reconsideration in accordance with the provisions of the Act.
( 1 ) NEW India Assurance Company Limited (hereinafter referred to as 'the insurer') filed this appeal under section 30 of the Workmen's Compensation Act 1923 challenging the judgment and order dated 09. 7. 1996 passed by the Commissioner, Workmen's Compensation, West Bengal, Second Court in Claim Case No. 177 of 1994.
( 2 ) THE appellant respondent No. 1, Bharat Yadav filed the claim case claiming a compensation of Rs. 1,11,355/- alleging that in course of his employment on 5. 4. 1993 as a khalasi, in Vehicle No. DL-IG-A-0033 belonging to the respondent No, 2 Kuljit Singh, he sustained injuries on both legs including thigh, knee, ankle, foot and toes, wrist and back as a bulk of plywood that were being carried by the said vehicle (Truck), fell on him. Initially, he was treated at Medical College and Hospital, Calcutta for 18 days and subsequently in a Howrah Hospital for about 9 months. As a result of the accident, he was not in a position to move without the help of a pair of crutch. The claimant was examined by a doctor who issued a certificate to the effect that the claimant sustained permanent total disablement of hundred percent. At the relevant time the claimant was getting a salary of Rs. 1500/- per month and he was aged 21 years. The appellant, New India Assurance Company Limited was the insurer of the vehicle at the relevant time and hence, the claim was made against the owner as well as the insurer of the said vehicle.
( 3 ) KULJIT Singh of M/s. Shammi Road Corporation being the owner of the vehicle (opposite party No. 1 respondent No. 2) did not appear and file any written statement. But he filed a letter dated 10. 8. 1994 indicating that the claimant Bharat Yadav was temporarily employed as a cleaner-cum-helper in the offending vehicle and that the vehicle was insured with the New India Assurance Company Limited at the relevant time. It is also stated in the said letter that the Company had to bear the necessary medical expenses for the treatment of the claimant.
( 4 ) THE insurer also filed a written statement challenging the employment of the victim as a khalasi in the offending vehicle, his age, monthly income and extent of injury. However, the insurance coverage of the offending vehicle at the relevant time was not specifically denied.
( 5 ) ON the basis of the respective pleadings, the learned Commissioner framed the following four issues :"issue No. 1 : Was there any accident arising out of and in course of applicant's employment under the O. P " issue No. 2 : Has the applicant sustained any permanent partial disablement involving loss of earning capacity " It so, to what extent " issue No. 3 : What was the age and monthly wage of the applicant at the time of accident " issue No. 4 : Is the Insurance Co. (O. P. No. 2) liable to pay any compensation ""
( 6 ) THE claimant examined himself as P. W. 1 and Dr. Parbat as P. W 2 and no witness was examined by the opposite parties, Documents were also produced before the learned Commissioner in support of the injury of the claimant and subsequent treatment. The certificate of insurance was also produced to show that the offending vehicle was covered by a policy of insurance during the period from 30. 3. 1993 to 29. 3. 1994. On the basis to the evidence on record, the learned Commissioner decided the issue Nos. 1, 2, and 3 in favour of the claimant and came to a finding that the claimant was aged 21 years at the time of the accident and his wage was Rs. 1000/- per month. The learned Commissioner also came to a conclusion that the offending vehicle was insured with the New India Assurance Company Limited and that the day of the accident was well covered with insurance policy. But without dealing with the issue No. 4 separately and without giving any decision on the issue No. 4, the learned Commissioner came to a finding that the claimant was entitled to get one hundred loss of earning capacity and fixed a sum of Rs. 1,11,355/- as compensation payable
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