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2018 Supreme(Gau) 1408
IN THE HIGH COURT OF GAUHATI
Kalyan Rai Surana, J.
National Insurance Co. Ltd. - Appellant
Vs.
Habibur Rahman - Respondent
M.F.A. No. 56 of 2004
Decided On : 25-01-2018
For the Appellant :Mr. S.S. Sarma, Mr. R.K. Bhatra and Mr. K.K. Bhatta and Ms. M. Mazumdar, Advocates
Headnote:
Civil Procedure Code, 1908 - Order 41 Rule 23 (A) ,21 and 28- Workmen’s Compensation Act, 1923 - Section 30 - Permanent total disablement Appeal under section of Workmen’s Compensation Act is directed against judgment and award passed by Commissioner Workmen’s Compensation in WC Case thereby awarding a sum of Rs in favor of respondent and appeal was admitted by order substantial question of law on which appeal has been heard was not formulated following substantial questions of law are formulated on which this appeal has been hear and case as stated in claim petition is that on while respondent was driving bus bearing registration toward with passengers said bus met with an accident at PWD Road under P.S., which is recorded vide GD Entry and due to accident respondent sustained grievous injuries leading to his permanent total disablement and projecting that he was earning a salary of Rs per month including allowances and stating that his age was years at time of accident a claim for compensation of Rs was made appellant contested case by filing their written statement taking usual plea and requiring respondent to a strict proof of his claim - Held, Commissioner is also directed to take note of provision of Rule and Rule of Workmen’s Compensation Rules prescribes manner in which documents have to be produced before Commissioner and in present case claim petition was filed on injury report was prepared on at time of filing of claim petition this document was not on record and as per provision of Rule of Workmen’s Compensation Rules it is prescribed that a document which has not been produced at or within time specified in Sub-Rule 1 or 2 as case be shall not without sanction of Commissioner be admissible in evidence on behalf of party who should have produced it and if this rule is applied then injury report it becomes inadmissible in eye of law and Similarly Rule mandates that issues are required to be framed provisions of Workmen’s Compensation Act - Now Employees Compensation Act is a beneficial legislation and claimant should not be made to suffer delay merely on technical grounds as has happened in this case Commissioner would now scrupulously apply and follow provisions of Rule and if a document is sought to be introduced subsequently - It must be done by following prescribed procedure and by providing a copy thereof to insurer so as to enable them to take adequate instructions in matter and with aforesaid observations and there shall be no order as to costs order of remand is within scope of Order Rule (A) CPC and appellant who is represented by their counsel shall appear before - Commissioner Workmen’s Compensation on and by producing a certified copy of this order shall seek further instructions from said Tribunal and amount already disbursed to respondent shall be subject to outcome of fresh adjudication upon remand and Return back LCR - Appeal is allowed
Kalyan Rai Surana, J.
Heard Mr. S.S. Sarma learned Senior Counsel assisted by Ms. M. Mazumdar learned counsel for the appellant.
2. This appeal under section 30 of the Workmen's Compensation Act, 1923 is directed against the judgment and award dated 09.09.2003 passed by the learned Commissioner, Workmen's Compensation, Guwahati in WC Case No. 207/2002, thereby awarding a sum of Rs. 1,69,394/- in favour of the respondent. The appeal was admitted by order dated 10.06.2004. However, the substantial question of law on which the appeal has been heard was not formulated. Hence, the following substantial questions of law are formulated on which this appeal has been heard:-
1. Whether in light of certificate dated 07.12.2002 issued by the Officer-in-charge, Hajo P.S. in connection with Hajo P.S. GDE No. 147/02 dated 07.05.2002 to the effect that on 07.05.02 at about 8:30 a.m. at Pakar Kuna village on PWD road one line bus bearing registration No. AS-14/4871 met with accident as a result one Md. Giasuddin Ahmed is injured "One Habibur Rahman S/o Lt. Abdul Aziz of village Galabil, P.S. Tarabari Dist. Barpeta was driving the above mentioned vehicle at the time of accident", the finding by the learned Commissioner, Workmen's Compensation that Md. Habibur Rahman was a victim of the same accident is perverse?
2. Whether the learned Commissioner could have relied on the injury report (Exbt.1) dated 20.01.2003 and the injury report (Exbt.6) to award compensation?
3. The brief facts of the case as stated in the claim petition is that on 07.05.2002 while the respondent No. 1 was driving the bus bearing registration No. AS-14-4871 from Gamafulbari Madrassa towards Guwahati with passengers, the said bus met with an accident at Pakarkona PWD Road under Hajo P.S., which is recorded vide GD Entry No. 147/2002. Due to the accident the respondent No. 1 sustained grievous injuries, leading to his permanent total disablement. Projecting that he was earning a salary of Rs. 4200/- per month including allowances and stating that his age was 25 years at the time of the accident, a claim for compensation of Rs. 6,50,000/- was made. The appellant contested the case by filing their written statement taking usual plea and requiring the respondent to a strict proof of his claim.
4. In support of the claim petition, the respondent examined himself as PW-1 and the Doctor who issued medical certificate (Exbt.6) was examined as PW-2. The owner of the vehicle, who is the respondent No. 2 herein, did not contest the claim petition. The learned Commissioner, did not frame any issue. The respondent No. 1 had exhibited the following documents:-
1. Doctor's Certificate-Exbt.1.
2. Doctor's Prescriptions-Exbt-2, 3 and 4.
3. X-ray report-Exbt-5.
4. Medical certificate-Exbt-6.
5. Police Report-Exbt-7 (the original report annexed with analogous case No. 206/02).
6. Driving license-Exbt-8.
5. The assessment made by the Doctor towards the physical disability of 50% of loss of earning capacity at 35% was accepted. It was held that as per the accident information report (Exbt.7) submitted by the I/O of the Hajo P.S. the respondent No. 1 was one of the injured in the accident.
6. The learned Commissioner, on the basis of the professional driving licence of the respondent No. 1, held that the driving licence was issued on 20.01.1989 and that nobody was entitled to hold a professional driving licence until he attained 18 years of age and, as such, at the time of the accident the age of the respondent No. 1 would not be less than 33 years. Accordingly his income was taken to be Rs. 4200/- per month and he was held to be 33 years of age and compensation was computed as follows:- Rs. 2400 X 201.66 X 35% = Rs. 1,69,394/- (Rupees One lakh sixty nine thousand three hundred and ninety four only). The appellant was directed to pay the said sum along with simple interest at 9% with effect from 21.08.2002 till the date of deposit.
7. Heard the submissions made by the Senior Counsel for the
