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IN THE HIGH COURT OF GAUHATI
KALYAN RAI SURANA, J.
Oriental Insurance Co Lts - Appellant
Versus
Munindra Bharali - Respondent
Miscellaneous First Appeal No. 59 of 2003
Decided On : 20-02-2018
Advocate Appeared:
A. Ahmed, Adv., M. Khataniar, Adv.
Headnote:
Workmens Compensation Act, 1923 - Sections 30 and 4 - Indian Penal Code, 1860 - Sections 273, 337, 338 and 427 - Accident - Injuries - While plying bus with passengers towards bus met with an accident PS in district due to brake failure - As a result of accident driver of vehicle sustained grievous injuries - In view of accident a case being PS Case was registered - Respondent had claimed that he was getting monthly salary of per month and he was 27 years old at time of accident and that bus was duly insured with appellant - Owner of vehicle did not contest case - However appellant who was opposite party in claim petition filed their written statement and by denying contents of claim petition respondent was put to strict proof of their claim - Learned Commissioner on appreciating evidence on record held that respondent was earning a salary of per month and relied on Injury Report wherein Doctor had found physical disability and loss of earning capacity as well as in statement of Doctor that respondent could not be able to drive motor vehicle for injury sustained - Held, Therefore in absence of X-Ray Plate on record no value can be put to an X-Ray Report alone - Moreover it has been settled by this Court in case of National Insurance that assessment of disability must be after considering whether loss of earning capacity would affect loss of earning capacity on all work/employment which injured could have carried out said exercise having not been done said Injury Report could not have been taken as a basis of holding that there was a definite loss of earning capacity - In view of discussion above substantial question of law is decided in negative and in favour of appellant by holding that percentage of disability and loss of earning capacity assessed by Doctor on very date of accident could not be found basis for arriving at a compensation amount - It is submitted that pursuant to order passed by this Court a sum has been deposited before learned Commissioner Workmens Compensation and same has been disbursed to respondent - Needless to say that it would be open for appellant to recover said amount from respondent - Appeal stands allowed.
KALYAN RAI SURANA, J.
1. Heard Mr. A. Ahmed, learned counsel for the appellant. None appears on call for the sole respondent/claimant.
2. This appeal under Section 30 of the Workmen's Compensation Act, 1923 has been filed against the judgment and award dated 26.03.2003 passed by the learned Commissioner, Workmen's Compensation, Guwahati in W.C. Case No. 89/2002, by which a compensation of Rs. 2,24,618/- was awarded to the respondent on account of injuries sustained in a road traffic accident which occurred on 31.03.2002.
By order dated 10.01.2018, this Court had proposed to hear this appeal on the following substantial question of law:
(i) Whether the percentage of physical disability and the percentage of loss of earning capacity assessed by PW.2 on the very date of the accident could have formed the basis for arriving at the compensation amount?
(2) Whether grant of interest from the date of filing of the application is sustainable in law?
3. The case as projected in the claim petition in brief is that the respondent No. 1 claimed to employed by one Sri Bilash Chandra Bharali (O.P. No. 1 in the claim petition) as a driver of bus bearing registration No. AS-25/7979. While plying the bus with passengers from Guwahati towards Barpeta on 31.03.2002 at about 12.15 PM, the bus met with an accident at Hajo under Hajo P.S. in the district of Kamrup due to brake failure. As a result of the accident, the driver of the vehicle sustained grievous injuries. In view of the accident, a case, being Hajo P.S. Case No. 7/2002 under Sections 273/337/338/427 IPC was registered. The respondent had claimed that he was getting monthly salary of Rs. 4,500/- per month and he was 27 years old at the time of the accident and that the bus was duly insured with the appellant. The owner of the vehicle did not contest the case. However, the appellant who was the opposite party No. 2 in the claim petition, filed their written statement and by denying the contents of the claim petition, the respondent was put to strict proof of their claim.
4. Although no issues were framed for trial, the respondent examined himself as PW.1 and the Doctor who had issued the Injury Report (Exbt.6) has examined as PW.2. the respondent exhibited the following documents, viz., Prescriptions (Exbt.1 to 4), X-Ray Report (Exbt.5), Injury Report (Exbt.6), Accident Information Report (Exbt.7).
5. The learned Commissioner, on appreciating the evidence on record, held that the respondent was earning a salary of Rs. 4,000/- per month and relied on the Injury Report (Exbt.6) wherein the Doctor had found physical disability of 50% and loss of earning capacity at 45% as well as in the statement of the Doctor that the respondent could not be able to drive motor vehicle for the injury sustained. As per Doctor's evidence, the age of the claimant was taken to be 30 years as on 31.03.2002 and taken into account the monthly salary of Rs. 4,000/- per month, the compensation was computed as follows:
60% of Rs. 4,000/- X 207.98 X 45% = Rs. 2,24,618/-.
In addition to the said amount, the respondent was held to be entitled to get interest @ 9% p.a. from 30.04.2002 i.e. date of filing of claim petition till payment. It was ordered that compensation of Rs. 2,24,618/- be deposited by the appellant within a period of 30 days.
6. The learned counsel for the appellant submits that the Doctor (PW.2) did not take into consideration whether loss of earning capacity was in relation to any employment which the respondent could have undertaken and it is also submitted that the accident had occurred on 31.03.2002 and though the Injury Report (Exbt.6) was issued on 12.06.2002, the Doctor (PW.2) had mentioned that he had examined the respondent on 31.03.2002 and, as such, it is submitted that the Doctor (PW.2) could not have certify 40% physical disability and 50% loss of earning capacity on the date of the examination, which is the date of the accident also. In support of his submissions, the learned counsel for t
