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2017 Supreme(Gau) 196
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
KALYAN RAI SURANA, J.
United India Insurance Co. Ltd. - Appellant
Vs.
Sri Ratneswar Das & another - Respondents
M.F.A. NO. 83/2007
Decided On : 02-03-2017
For the Petitioner: Mr. R. Goswami, Mr. BJ Ghosh, Mrs. T. Kalita, Mr. J. Borooah, Advs.
Headnote:
Workmen’s Compensation Act, 1923 - Section 30 - Employees Compensation Act, 1923 - Section 2(1)(l) and 4(1)(C)(ii) - Workmen Compensation - Compensation for non-specified injury - Permanent disability - Learned counsel for appellant - None appears on call on behalf of respondents - As per order of this Court dated it was recorded that earlier counsel for respondent No.1 had withdrawn from case and Court had issued notice to respondent No.1 to make alternative arrangement - But despite due service of notice on respondent No.1, no alternative step was taken - Hence, matter is heard ex-parte against respondents - Assessment of loss of earning capacity as a result of non-specified injury which did not take into consideration profession of workman and functions which he has to perform in course of his duty is an assessment of loss of earning capacity as per provisions of W.C. Act, 1923 - Commissioner for Workmen’s Compensation can award interest from date of accident in case of a non-scheduled injury when the compensation could be determined by Commissioner for Workmen’s Compensation only after assessment of loss of earning capacity is made by a qualified medical practitioner - Vehicle was proceeding from Barpeta towards at Bridge – Held, Learned counsel for appellant has referred to Section 2(1)(l) of the Act defining ‘temporary partial disablement’, ‘permanent partial disablement’ and ‘total partial disablement’ to show manner of assessing loss in those 3 heads are different - Workmen Compensation did not take into consideration the job which was performed by workman in course of employment or such employer/the respondent No.1 could have engaged him second substantial question of law is also decided in negative and in favour of appellant by holding that view of qualified medical practitioner was required under Act to take into consideration provisions of Section 4(1)(C) for assessing loss of earning capacity - Appellant is entitled to withdraw amount deposited before court of learned Commissioner, Workmen Compensation if not disbursed already to the respondent No.1 - However, if respondent No.1 has withdrawn any amount in meantime from deposit made by appellant it would be open for appellant to take appropriate measures for recovery of same from the respondent No.1 - Appeal is allowed.
1. Heard Mr. R. Goswami, learned counsel for the appellant. None appears on call on behalf of the respondents. As per the order of this Court dated 13.12.2016, it was recorded that earlier counsel for respondent No.1 had withdrawn from the case and the Court had issued notice to the respondent No.1 to make alternative arrangement. But despite due service of notice on respondent No.1, no alternative step was taken. Hence, the matter is heard ex-parte against the respondents.
2. This appeal under Section 30 of the Workmen’s Compensation Act, 1923 (now Employees Compensation Act, 1923) is directed against the judgment and order dated 24/05/2007 passed by the learned Commissioner, Workmen’s compensation, Kamrup in W.C. Case No. 249 of 2003. The appeal was admitted on the following substantial questions of law:
“1. Whether an assessment of loss of earning capacity, as a result of non-specified injury, which did not take into consideration the profession of the workman and the functions which he has to perform in the course of his duty, is an assessment of loss of earning capacity as per provisions of the W.C. Act, 1923.
2. Whether the appellants, as Insurers, are liable for compensation for non-specified injury if the assessment of loss of earning capacity, allegedly suffered by a workman, was made without taking into consideration the jobs/functions performed by the workman in the course of his duty.
3. Whether the Commissioner for Workmen’s Compensation under Workmen’s Compensation Act, 1923 can award interest from the date of the accident in the case of a non-scheduled injury when the compensation could be determined by the Commissioner for Workmen’s Compensation only after the assessment of the loss of earning capacity is made by a qualified medical practitioner.
4. Whether the Commissioner for Workmen’s Compensation under Workmen’s Compensation Act, 1923 can award interest from the date of the accident in the case of a non-scheduled injury when the claimant completes service of notice as belatedly as two and a half years after the accident without assigning any reasons for the delay.
5. Whether the appellants who are the Insurer are liable for compensation if the findings of fact by the Commissioner for Workmen’s Compensation as regards the permanent disability as well as the alleged loss of earning capacity suffer from perversity.”
3. The case, in brief, is that the respondent No. 1 was an employee of the respondent No.2 as a conductor of the bus bearing Registration No. AS-25-A–7095 which met with an accident on 07/01/2003 at about 5-00 A.M. while the vehicle was proceeding from Barpeta towards Guwahati at Bamuna Bridge on Barpeta– Bhawanipur PWD Road. As a result of the accident, the respondent No. 1 sustained injuries and he was admitted to Barpeta Civil Hospital wherein he was given treatment. The respondent No. 1 filed a plaint alleging that due to the injuries suffered in the accident, he became permanently disabled resulting in his inability to perform his job. As per the claim petition, the said vehicle, which was involved in the incident was having a valid insurance policy of the appellant.
4. The respondent No.1 exhibited Doctors’ prescription as Exht. 1 & 2 and X-ray report as Exht. 3, X-ray Plate as Exht. 4, Medical Certificate as Exht. 5, Police Report as Exht.6, photocopy of Insurance Policy as Exht. 7, School Certificate as Exht. 8 and Employers Certificate as Exht. 9. The respondent No.1 was aged about 33 years at the time of the accident and he was receiving salary of Rs. 4,200/- per month. As per the evidence rendered by the PW.1, as a result of the accident, he sustained fractured injury on the right leg and injuries on peritial region of scalp, chest, waist and other parts of the body. However, as per the X-ray report (Exht. 3), there was a comminuted fracture on the right tibia. As per the evidence of PW.1, he is unable to walk properly and he could not continue to do the job of conductor and hi
