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2017 Supreme(Gau) 69
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
KALYAN RAI SURANA, J.
National Insurance Co. Ltd. - Petitioner
Vs.
Pranab Ch. Roy & Ors. - Respondents
MFA 123 of 2007
Decided On : 24-01-2017
For the Petitioner: Mr. R. Goswami, Mr. B.J. Ghosh, I. Borooah
For the Respondents: Mr. S. Hoque, Mr. I. Islam
Headnote:
Workmen’s Compensation Act, 1923 - Section 2(1) , 4(1)(c) and 30 - Accident - Lost total eye sight in the right eye amd other injury - Evidence - Claim for Compensation - Claim petition before Commissioner, Workmen’s Compensation was that he was employed by respondent No. 2 herein as a driver for his vehicle and while said vehicle was on way car met with accident near, under P.S - As a result of said accident, respondent No. 1 had sustained head injury, facial injury, chest injury and eye injury - He was given primary treatment in Rangia and then he came to Pathshala for treatment and later on he was shifted to Guwahati Medical College and Hospital for treatment - Respondent No. 2 appeared before Commissioner for Workmen’s Compensation and accepted occurrence of the accident and disclosed that as a driver the respondent No. 1 was received salary of Rs. 4,200/- and daily food allowance of Rs. 70/ - Appellant also contested case by filing their written statement denying that respondent No. 1 was engaged as a driver on date of accident and that injury under plea of injury as a driver was not sustainable, injury being not grievous and permanent in nature - Respondent No. 1 has claimant as examined two witnesses including himself and Doctor - Doctor was examined as P.W. 2 he was at relevant time engaged as a Senior Medical and Health Officer, in district of Bongaigaon - He had stated in his evidence that he had examined the respondent no. 1 on in his clinic and he found that following injury suffered by respondent No. 1 in accident – Held, Respondent on other hand submits that respondent No. 1 was a driver and therefore injury sustained in respect of his eye would in fact lead to total loss of his earning capacity and therefore, learned Commissioner, Workmen’s Compensation had not committed any wrong in assessing loss of earning capacity as 40% as certified by qualified medical practitioner which is in accordance with provisions - injury sustained by workmen is capable of being categorized under any one of various categories of injuries given in Schedule (I) appended to this said Act, learned Commissioner would have no discretion to over look percentage of loss of earning capacity as mentioned therein - In present case in hand owing of evidence tendered by P.W. 2, the learned Doctor they can’t be any two views that injury sustained by respondent No. 1 was injury lead to the visual of one eye, without complications or disfigurement of eye-ball - Respondent No. 1 is normally covered by entry No. 26 Part II of Schedule I of said Act and as such assessment of loss of earning capacity of workman at 40% is held to be not sustainable and therefore substantial question of law is decided in negative and against respondent No. 1, by holding loss of earning capacity could have been calculated only @ 30% as prescribed therein - Appeal stands allowed
Heard Mr. R. Goswami, learned counsel for the appellant. Also heard Mr. S. Hoque, learned counsel for the respondent/claimant No. 1. None appears for the respondent No. 2 on call.
2. By filing this appeal under Section 30 of the Workmen’s Compensation Act, 1923 (now renamed as the Employees’ Compensation Act, 1923), hereinafter referred to as the said Act, the appellant has challenged the judgment and order 02.07.2007 passed by the learned Commissioner, Workmen’s Compensation, Dhubri in W.C. Case No. 25/2005.
3. The case projected by the respondent No. 1 in the claim petition before the Commissioner, Workmen’s Compensation was that he was employed by the respondent No. 2 herein as a driver for his vehicle No. AS-15/8893 and while the said vehicle was on the way from Guwahati to Pathshala on 03.06.2005, the car met with the accident near Changsari, under Kamlapur P.S. As a result of the said accident, the respondent No. 1 had sustained head injury, facial injury, chest injury and eye injury. He was given primary treatment in Rangia and then he came to Pathshala for treatment and later on he was shifted to Guwahati Medical College and Hospital for treatment. He stated that he had lost total eye sight in the right eye, which affected his eye sight in the left eye. He suffered fracture injury in the chest in respect of 4, 5 and 6 rib of the chest, he lost one tooth and his forehead bone was also cracked, affecting his whole eye sight. He had stated that his vehicle was insured by the appellant herein by policy which was valid on the date of the accident and he claimed that his employed not give any ex-gratia for compensation. The respondent No. 2 appeared before the Commissioner for Workmen’s Compensation and accepted the occurrence of the accident and disclosed that as a driver the respondent No. 1 was received salary of Rs. 4,200/- and daily food allowance of Rs. 70/- .The appellant also contested the case by filing their written statement, denying that the respondent No. 1 was engaged as a driver on the date of accident and that the injury under the plea of injury as a driver was not sustainable, injury being not grievous and permanent in nature. The appellant disputed the income of the respondent No. 1.
4. The Respondent No. 1 has claimant as examined two witnesses including himself and the Doctor. The Doctor was examined as P.W. 2 he was at the relevant time engaged as a Senior Medical and Health Officer, Manikpur in the district of Bongaigaon. He had stated in his evidence that he had examined the respondent no. 1 on 30.12.2005 in his clinic and he found that following injury suffered by the respondent No. 1 in the accident which occurred on 03.06.2005:
i. Cut injury over both eye brows.
ii. Prontial area of head.
iii. Multiple leserated injury in the both hands.
5. His statement in his evidence as regards his medical opinion on the visual impairment by the right eye of the respondent No. 1 is as follows:-
“On 15.07.2005 during eye examination of Regional Institute of Ophthalmology G.M.C. Hospital the visual acuity of the patient in the right eye was finger comting at 1” feet distance and treatment give.
On 19.08.2005 he again visit the Regional R.I.O. G.M.C. Hospital for check-up. But no improvement in the vision of the right eye. When I examine on 15.09.2005, I have found the following findings in the right eye on excrrnal examination of right & left eye is normal, slit lamp on the bio microscopy both eye normal found scopy right eye shows scarring of foveal reason of macular left eye normal. Auto refractometry right eye no response left eye normal. Visual acuity examination right eye total absence of right, left eye N6 in my opinion the visual lost of right eye is due to scurring of fonial reason of the macula of retina due to the from to the right eye and frontal part of the skull the work disability of that person is about 40% due to loss of Binocular vision. Exbt. –(1) prescription and Exbt.- 1(1) my signatu
