New India Assurance Company, Ltd. v. Bharat Yadav (Alias) B.P Yadav And Another

1. New India Assurance Company Limited (hereinafter referred to as 'the insurer') filed this appeal under section 30 of the Workmen's Compensation Act 1923 challenging the Judgment and order dated 09.7.1996 passed by the Commissioner, Workmen's Compensation, West Bengal, Second Court in Claim Case No. 177 of 1994.

2. The appellant respondent No. 1, Bharat Yadav filed the claim case claiming a compensation of Rs. 1,11,355/- alleging that in course of his employment on 5.4.1993 as a khalasi, in Vehicle No. DL-IG-A-0033 belonging to the respondent No, 2 Kuljit Singh, he sustained injuries on both legs including thigh, knee, ankle, foot and toes, wrist and back as a bulk of plywood that were being carried by the said vehicle (Truck), fell on him. Initially, he was treated at Medical College and Hospital, Calcutta for 18 days and subsequently in a Howrah Hospital for about 9 months. As a result of the accident, he was not in a position to move without the help of a pair of crutch. The claimant was examined by a doctor who issued a certificate to the effect that the claimant sustained permanent total disablement of hundred percent. At the relevant time the claimant was getting a salary of Rs. 1500/- per month and he was aged 21 years. The appellant, New India Assurance Company Limited was the insurer of the vehicle at the relevant time and hence, the claim was made against the owner as well as the insurer of the said vehicle.

3. Kuljit Singh of M/s. Shammi Road Corporation being the owner of the vehicle (opposite party No. 1 respondent No. 2) did not appear and file any written statement. But he filed a letter dated 10.8.1994 indicating that the claimant Bharat Yadav was temporarily employed as a cleaner-cum-helper in the offending vehicle and that the vehicle was insured with the New India Assurance Company Limited at the relevant time. It is also stated in the said letter that the Company had to bear the necessary medical expenses for the treatment of the claimant.

4. The insurer also filed a written statement challenging the employment of the victim as a khalasi in the offending vehicle, his age, monthly income and extent of injury. However, the insurance coverage of the offending vehicle at the relevant time was not specifically denied.

5. On the basis of the respective pleadings, the learned Commissioner framed the following four issues :

"Issue No. 1 : Was there any accident arising out of and in course of applicant's employment under the O.P ?

Issue No. 2 : Has the applicant sustained any permanent partial disablement involving loss of earning capacity ? It so, to what extent ?

Issue No. 3 : What was the age and monthly wage of the applicant at the time of accident ?

Issue No. 4 : Is the insurance Co. (O.P. No. 2) liable to pay any compensation ?"

6. The claimant examined himself as P.W. 1 and Dr. Parbat as P.W 2 and no witness was examined by the opposite parties, Documents were also produced before the learned Commissioner in support of the injury of the claimant and subsequent treatment. The certificate of insurance was also produced to show that the offending vehicle was covered by a policy of insurance during the period from 30.3.1993 to 29.3.1994. On the basis to the evidence on record, the learned Commissioner decided the issue Nos. 1, 2, and 3 in favour of the claimant and came to a finding that the claimant was aged 21 years at the time of the accident and his wage was Rs. 1000/- per month. The learned Commissioner also came to a conclusion that the offending vehicle was insured with the New India Assurance Company Limited and that the day of the accident was well covered with insurance policy. But without dealing with the issue No. 4 separately and without giving any decision on the issue No. 4, the learned Commissioner came to a finding that the claimant was entitled to get one hundred loss of earning capacity and fixed a sum of Rs. 1,11,355/- as compensation payable by the insurer.

7. In course of hearing of this appeal, the claimant respondent No. 1 appeared. But the owner of the vehicle, namely the respondent No. 2 did not appear and contest.

8. Mr. Krishanu Banik appearing on behalf of the claimant raised a preliminary objection to the effect that as no substantial question of law is involved in this appeal, the appeal is to be dismissed within the meaning of First proviso to section 30(1) of the Workmen's Compensation Act 1923. It is also contended that the plea raised by the appellant to the effect that the claimant did not suffer any injury in the accident making him permanently disabled and consequently, one hundred percent loss in earning capacity being raised for the first time in this appeal, such new plea cannot be taken a the appellate stage. On this score, he relied on a single Bench decision of the Karnataka High Court reported in 1983 TAC 419 (S. Chinnaswami v. Periaswamy). He also relied on another single Bench decision of Punjab & Haryana High Court reported in 1(2000) ACC 17 (Rattan Singh v. Haryana State Electricity Board & Ors.). Reliance was also placed on another single Bench decision of Karnataka High Court reported in 1998 ACJ 179 (Oriental Insurance Co. Ltd. v. Vasantha Pitambar and Anr.). On this score, the learned counsel further argued that extent of disability being a question of fact, it cannot be treated as a substantial question of law. On the question of new plea taken in appeal, reliance was placed in a judgment of Andhra Pradesh High Court reported in 1996 ACJ 627 (Janatha Modern Rice Mills v. Satyanarayana). Reliance was also placed on another decision of Patna High Court (Rawal Das Nichal Das v. Jagamath Ekka). In support of the contention that no new plea can be taken in appeal, reliance was also placed in a decision of Rajasthan High Court reported in 1991 ACJ 74 (United India Insurance Co. Ltd. v. Roop Kanwar and Ors.).

9. Finally, the learned counsel for the respondent No. 1 also placed reliance on a Division Bench judgment of this Court reported in 1999 (II) CHN 226 [National Insurance Co. Ltd. v. Susanta Das and Anr.) in support of the contention that when the learned Commissioner rightly relied on the evidence of a doctor and passed the award relying on the uncontroverted evidence adduced on behalf of the claimant, there is no scope of interference in appeal.

10. Mr. K.K. Das, the learned counsel for the appellant, on the other hand, placing reliance on a Division Bench Judgment of this Court reported in 2000 (1) TAC 117(Cal) (New India Assurance Co. Ltd. v. Bishwanath Das and Anr.) contended that the learned Commissioner failed to appreciate the provisions introduced in the Act by the Amendment Act 22 of 1984 and accordingly, failed to consider that the allegedly recognised medical practitioner did not give any assessment with regard to the loss of earning capacity of the claimant. The learned counsel further pointed out that the medical certificate issued by Dr. M.N. Parbat and the evidence adduced by the doctor has not stated anything about the loss of earning and hence, the finding of the learned Commissioner is opposed to law and as such, this forms a substantial question of law for a proper decision in this appeal.

11. After a careful scrutiny of the provisions of the Amendment Act 22 of 1984, we come to a conclusion that the only substantial question of law which arises for consideration in this appeal is as to whether compensation has to be granted taking into consideration the provisions of Part I of the First Schedule read with Section 2(1) and Section 4(1) of the Workmen's Compensation Act 1923.

12. At the very outset, it is to be noted from the materials on record that the employment of the claimant and consequent sustaining of injuries have been proved and the findings of the learned Commissioner on the facts namely the sustaining of injuries by the claimant in course of his employment, his age and the monthly income are not open for discussion in this appeal as all those findings are on the issues of fact. But it is to be noted from the impugned judgment that the learned Commissioner did not find out the percentage of loss of earning capacity of the claimant as is required under Section 4(1) of the Act. By the Amendment Act 22 of 1984 which came into force on 1st July 1984, a specific provision has been introduced for assessment of loss of earning capacity of the workman by a qualified medical practitioner. The Division Bench of this Court in New India Assurance Co. Ltd. v. Bishuianath Das and Anr. (supra) analysing this point came to a conclusion that in view of the amended provision of the Act, the loss of earning capacity of the appellant workman should be assessed by a qualified medical practitioner. After a careful scrutiny of the evidence adduced by the doctor in this case, we come to a conclusion that the medical practitioner failed to assess the loss of earning capacity in this case as required by the Act as it stands after the Amendment Act.

13. True it is that the decision of the single Judge of Andhra Pradesh High Court in New India Assurance Co. Ltd. v. Smmayya @ M. Shankar and Ors. reported in 1997 ACJ 185: 1996(1) TAG 237 was relied upon by the Division Bench in the above cited case of Biswanath Das and Anr. (supra). The same decision also fell for consideration before the Division Bench of this Court in National Insurance Co. Ltd. v. Susanra Das and Anr. (supra) and Their Lordships came to a conclusion that the decision in Smmayya's case (supra) was not applicable in the case where the doctor gave an evidence that the claimant suffered one hundred percent loss of earning capacity. In paragraph 13 of their decision, Their Lordships also viewed that unless there is any evidence as regards actual loss of earning capacity, the commissioner was not competent to assess the loss of earning capacity of the workman. From the above discussions, it would be noticed that two separate Division Bench of this Hon'ble Court practically ratified the findings in Smmayya's case and thereby came to a conclusion that for the purpose of calculating the compensation, it is incumbent upon the learned Commissioner to assess actual loss of earning capacity. While respectfully agreeing with the findings of two Benches of this Court, we come to a conclusion that before passing any order of compensation it is incumbent upon the Commissioner to assess the actual loss of earning capacity on the basis of the evidence required under Section 2(1) and Section 4(1) of the Act. Since in this case the qualified medical practitioner did not assess the actual loss of the earning capacity of the claimant, the learned Commissioner failed to arrive at a just conclusion. Or in other words, the compensation as assessed by the learned Commissioner being opposed to law is not acceptable and it is liable to be set aside.

14. With regard to the question of new plea taken in this appeal and the argument that the extent of disability is a question of fact as argued by the learned counsel for the respondent No. 1 and the decisions cited by him, it is to be mentioned that in those cited decisions the effect of the Amendment Act 22 of 1984 were not taken into consideration, and hence the principles adopted in those cases are not applicable in this case. The assessment of actual loss of earning capacity being a prime consideration in a case of this nature as introduced by the Amendment Act, it has taken a shape of substantial question of law which cannot be ignored or overlooked. When the statute commands the learned Commissioner, who is an Adjudicatory Authority under the Act, to exercise his power in a particular manner and subject to certain conditions statutorily laid, the learned Commissioner is statutorily bound to follow the same and if there is any departure from the prescribed procedure or violation of conditions, then it is to be construed that the learned Commissioner has committed an illegality. So the point raised in this appeal cannot be construed as a question of fart.

15. It is to be noted from the written statement filed by the insurer that at the very initial stage, the liability to pay one hundred percent loss of earning capacity of the claimant was challenged for which an issue was framed. But in the impugned judgment, the issue was not properly decided and practically there was no basis for a conclusion to the effect that there was actual loss of earning capacity of the claimant to the extent of one hundred percent. It is also to be noted that the question raised by the insurer in this appeal is not at all a new plea. So the objection raised in this regard is not entertainable.

16. In view of the above discussions, we come to a conclusion that the judgment under appeal cannot be sustained.

17. The appeal is accordingly allowed. The judgment and order of the learned Commissioner are hereby set aside. The proceedings are remanded to the learned Commissioner. Workmen's Compensation, Second Court, West Bengal with a direction to consider the claim of the claimant respondent No. 1 afresh strictly in accordance with the provisions of the Act and the Rules framed therein, after affording an opportunity to the parties to adduce further evidence, at an early date and preferably within a period of three months from the date of communication of this order.

18. The learned Commissioner is also directed to dispose of all the issues in accordance with the law and not to leave aside any of the issues unattended in the manner done in this case.

19. Since the matter is pending for long and we have not interfered with the finding of the learned Commissioner as regards sustaining of injury in course of employment, we deem it proper to order that out of the amount deposited, the learned Commissioner shall allow the claimant respondent No. 1 to withdraw 50% of the amount without prejudice to the rights and contentions of the parties. The balance amount, however, be invested in a short term fixed deposit in any nationalised bank as a deposit till the final disposal of this case and the interest accruing thereupon shall ensure to the benefit of the successful party.

Later Urgent Certified xerox copy of this judgment and order, if applied for be granted as expeditiously as possible.

S. Banerjea, J.

20. I agree.