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2017 Supreme(Gau) 842
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
KALYAN RAI SURANA, J.
New India Assurance Co. Ltd. – Appellant
Versus
Md. Imran Hussain – Respondent
MFA No. 19 of 2005
Decided On : 14-09-2017
For the Appellant :Mr. S. Dutta, Sr. Adv., Ms. M. Choudhury, Mr. R. Kaur, Mr. S. Dutta. Advocates
Introduction of evidence must adhere to procedural rules and provide necessary clinical findings. Court's authority to remand matter for fresh trial based on disputed evidence.
Headnote:
Workmen’s Compensation Act - Challenge to judgment and award - Section 30 of the Workmen’s Compensation Act, 1923 - substantial questions of law: (i) Whether daily allowances earned by the employee can be construed as part of the salary? (ii) Whether the claimant can be construed to be a cleaner when employer denied the same? (iii) Whether interest can be imposed from the date of accident? - Court considered substantial questions of law No. 2 and 3 - Disputed evidence regarding injury report, disability, and interest - Court found introduction of injury report contrary to rules and lacking clinical findings - Remanded the matter back to the Commissioner for fresh trial.
Fact of the Case:
Appellant challenged judgment and award dated 28.05.2004 passed by the Commissioner, Workmen’s Compensation, Nagaon in N.W.C. Case No. 238/2002. Substantial questions of law raised regarding daily allowances, claimant's job role, and imposition of interest from the date of accident.
Finding of the Court:
Court found disputed evidence regarding injury report, disability, and interest. Introduction of injury report was found contrary to rules and lacking clinical findings. Remanded the matter back to the Commissioner for fresh trial.
Issues: Disputed evidence regarding injury report, disability, and interest.
Ratio Decidendi: Introduction of injury report contrary to rules and lacking clinical findings. Remanded the matter back to the Commissioner for fresh trial.
Final Decision: Appeal allowed to the extent indicated. Matter remanded back to the Commissioner for fresh trial.
Heard Mr. S. Dutta, learned Senior counsel assisted by Mr. S. Dutta, learned counsel for the appellant. None appears on call for the respondent although the notice of this appeal was published in one English and Assamese language daily circulating in the State of Assam.
2. By filing this appeal under Section 30 of the Workmen’s Compensation Act, 1923 (now called as Employees’ Compensation Act, 1923 and hereinafter referred to as “the Act”), the appellant has challenged the judgment and award dated 28.05.2004 passed by the learned Commissioner, Workmen’s Compensation, Nagaon in N.W.C. Case No. 238/2002.
3. The present appeal was admitted by order dated 04.01.2008 on the following substantial questions of law:-
(i) Whether daily allowances earned by the employee can be construed as part of the salary?
(ii) Whether the claimant can be construed to be a cleaner when employer denied the same?
(iii) Whether interest can be imposed from the date of accident?
4. At the outset that insofar as the substantial question of law No. 1 is concerned by now it has been well settled that daily allowance earned by the employee is to be construed as part of the salary and therefore, in view of the said provisions of law he does not does the first substantial question of law as framed in this appeal. Therefore, this Court is now to consider only the substantial question of law No. 2 and 3. The learned Senior counsel for the appellant has referred to the written statement of the respondent No. 2 i.e. the owner of the vehicle involved in the accident to show that in paragraph 4 of the said written statement, the owner/respondent had categorically denied that the respondent No. 1 was engaged as cleaner by giving a positive statement that the respondent No. 1 was never been engaged as cleaner or an any other work in his mini bus and thus, denied the employment of the respondent No. 1/claimant under him.
5. It is further submitted that the notice issued under Section 10 of the Workmen’s Compensation Act, 1923, which is marked as Exbt.4 is not proved to have been actually served on the respondent No. 1 and therefore, unless the obligation to serve a notice on the respondent No. 1 was fulfilled, the claim petition before the learned Commissioner, Workmen’s Compensation was not maintainable. It is further submitted that although there is reference in the impugned judgment regarding x-ray plate as exhibit material No. 1 and copy of the FIR and seizure list which was marked as Exbt.9, but the said documents do not found a part of the LCR as sent to this Court.
6. On a perusal of the trial court’s record, a statement made by the learned Senior counsel for the appellant appears to be correct. Further submission of the learned Senior counsel for the appellant was that there are overwriting in Exbt.3, being the injury report dated 12.02.2003 and the places where overwriting was done is clearly visible. Authenticity of the injury report is therefore, questioned. It is further submitted that the said injury report (Exbt.3) was prepared on the basis of the x-ray of the chest done on 19.03.2001 showing fracture on the 6th , 8th , 9th and 10th rib of right side, but there is no statement therein that on physical examination, the said 6th , 8th , 9th and 10th rib of right side was not healed as on the date of issuing of the injury report. It is submitted that the date of the injury report is also questionable because in page No. 1 thereof the date given is 12.02.2003 where is the signature at the page No. 2 (page No. 28 of LCR) reveals that the signature was done on 12.12.2003. The learned Senior counsel of the appellant has referred to the cross-examination of Doctor (PW.2) who has denied that the signature was done on 12.12.2003, and instead stated that the injury report (Exbt.3) bearing his signature at Exbt.3(1) was of 12.02.2003. On the perusal of the signature at Exbt. 3(1), the version of the Doctor (PW.2) appears to be not acceptable as the da
