THE BRANCH MANAGER UNITED INDIA INSURANCE CO. LTD. vs BIRALA THENGAL AND ANR

1) Heard Mr. S. S. Sarma, learned Senior Counsel assisted by Ms. M. Mazumdar, learned Counsel appearing for the appellant. None appears on call

for the Respondents.

2) This appeal under Section 30 of the Workmen’s Compensation Act, 1923 is directed against the judgment and award dated 20.07.2011, passed

by the learned Commissioner, Workmen’s Compensation, Golaghat, in W.C Case No. 6/2010, by which the appellant was directed to pay a sum of

Rs.4,78,159/- (Rupees four lakh seventy eight thousand one hundred fifty nine only) with interest at the rate of 9% per annum in favour of Respondent

No. 1.

3) The case projected in the claim petition was that the Respondent No. 1 was working as a paid and permanent handyman of a truck bearing

registration No. AS-03-D-2601. On 05.01.2010, while the car was going from Kachomari towards Rupahi, at about 10.30 AM, due to rash and

negligent driving of the said vehicle, near Geruamukh, on NH-37, the truck turtle on the side of the road. As a result of the accident, Respondent No.1

suffered grievous injuries like Typeâ€"III compound fracture segmental left humerous with crush injury left shoulder, fracture on right clavicle. He

was admitted to B.P. Civil Hospital Nagaon and on the same day transferred to GMC Hospital for better treatment, he was discharged on 20.01.2010.

Surgical procedures were undertaken and ultimately his left shoulder had to be amputated. It was projected that the treatment was till going on and he

had become totally disabled and lost his earning capacity by 100%. The accident was registered vide Khatowal P.S. GDE No. 74 dated 05.01.2010. It

was projected that the Respondent No. 1 was earning a monthly salary of Rs.4000/- (Rupees four thousand only) per month and a sum of Rs.50/-

(Rupees fifty only) as his daily allowance and he was 22 years old at the time of accident. A sum of Rs.7,00,000/- (Rupees seven lakh only) was

claimed as compensation.

4) The owner of the vehicle, Respondent No. 2 herein, had contested the claim by filing written statement. He had admitted the employment and the

income of the Respondent No. 1 and had stated that his vehicle was duly insured with the appellant. The appellant vide their written statement denied

that the Respondent No. 1 was a Workman or that his injuries were sustained in course of his employment. By denying the liability, the Respondent

No.1 was put to strict proof of the claim. The Respondent No. 1 examined himself as C.W.-1 and Doctor was examined as C.W.â€"2. The appellant

had examined three witnesses. The Respondent No. 1 had exhibited the following documents:

i. Exhibit -1 is the Accident Report;

ii. Exhibit -2 is the Discharge slip of Nagaon Civil Hospital;

iii. Exhibit -2(1) is Diagnosis done at Nagaon Civil Hospital, Nagaon;

iv. Exhibit -2(2) is the Referral Certificate to GMCH, Guwahati;

v. Exhibit -3 is the Case summary & Discharge certificate of GNRCH, Ghy, dtd 05.01.2010;

vi. Exhibit -4 is the Discharge Certificate of GHCH, Ghy, dtd 20.01.2010;

vii. Exhibit -4(1) is Diagnosis done at GHCH, Ghy;

viii. Exhibit -4(2) is Treatment administered at GHCH, Ghy;

ix. Exhibit -5 is the Physical Disability Certificate issued by District Medical Board, Golaghat;

x. Exhibit -6 to 6 (49) are Cash memos & Receipts of medical treatment;

xi. Exhibit -7 to 7(12) are the prescriptions of doctors;

xii. Exhibit -8 to 8(7) are the pathological Reports;

xiii. Exhibit -9 is the Employer cum Salary Certificate of the claimant;

xiv. Exhibit -10 is the X-Ray Report of pelvic both Hips, done at GMCH, Ghy, on 06.01.2010.

5) The Branch Manager of the appellant, namely, Sri Nogen Chandra Bharali was examined twice as D.W.-1 as well as D.W.-3 and one Mridul

Gogoi was examined as D.W. -2. On the basis of material on record, the learned Commissioner framed three issues for trial:

i. Whether there is any cause of action in this claim petition?

ii. Whether the injured was a workman under the provisions of the Workmen’s Compensation Act, 1923?

iii. Whether the claimant is entitled to get compensation under the provisions of the W.C. Act, 1923? If so, who is liable to pay compensation and to

what extent?

6) The learned Commissioner by referring to the various medical records, held that the Respondent No.1 had become totally disabled person and has

lost his earning capacity by 100% and was unable to do the job of a handyman or any other job. The learned Commissioner held that the accident

involving Respondent No. 1 took place in course of his employment and he was held to be entitlement to compensation under the Workmen’s

Compensation Act. In view of entry made in Serial No.1 of Scheduleâ€"I, Part II of the W.C. Act, it was held that Respondent No. 1 had lost his

earning capacity by 90%. His age was accepted to 30 years and income of the Respondent No. 1 was accepted to be Rs.4000/-(Rupees four

thousand only) per month as per the employer’s salary certificate. It was held that the truck was covered by insurance policy and the appellant

was made liable to pay compensation as follows:

60% of Rs.4000/-X221.37X90% = Rs.4,78,159/-

The amount was awarded with simple interest of 9% per annum.

7) The only submission of the learned Senior Counsel for the appellant was that while the learned trial Court had accepted all the exhibits submitted by

the Respondent No.1, without those documents being proved by the respective authors, the learned Commissioner had rejected Exhibit-B, being the

certified copy of the G.D. entry on the ground that the author was not examined and, as such, it is submitted that the learned Commissioner had

adopted two different parameters, one for the Respondent No. 1 and the other for the appellant.

8) Referring to entries contained in the G.D. entry No. 74 (Exb.-B), it is submitted that to the said entry, Respondent No.1 was stated to be a Mohri of

Tamul (Areca Nut) and that the offending vehicle was carrying packets of Tamul (Areca Nut). Hence, it is submitted that the rejection of Exhibit-B

was improper and therefore, the appeal deserves to be allowed.

9) This appeal was admitted by order dated 21.09.2011 on the following substantial question of law:

i. Whether the learned Commissioner was empowered to add daily allowance in the salary of the alleged injured handyman to determined the amount

of compensation?

ii. Whether the appellant-insurer could have been made liable to pay interest to

the injured-claimant?

iii. Whether the finding of the Commissioner, Workmen’s Compensation, that the appellant is liable to pay compensation to the workman, is

perverse.

iv. Any other question(s), which may be allowed to be raised at the time of hearing of the appeal.

10) In respect of first substantial question of law, it is seen in the claim petition, it was projected by the Respondent No.1 that he was aged 22 years

and he was receiving a sum of Rs.4000/- (Rupees four thousand only) per month as his wages and a sum of Rs.100/-(Rupees hundred only) as his

daily allowance. However, although it is well settled that the daily allowance is a part of the salary, nonetheless, the learned Commissioner had

accepted the monthly income of the Respondent as Rs.4000/- (Rupees four thousand only). Therefore, as the daily allowance had not been added to

the monthly wages, nothing survives for the decision of the first substantial question of law as the learned Commissioner did not consider quantification

of compensation on the basis of daily allowance.

11) In respect of second substantial question of law, it is seen that the learned Commissioner had granted interest at the rate of 9% per annum from

the date of filing of the claim petition till realization on the basis of the decision referred by this court in the case of Oriental Insurance Company Ltd.

Vs. Shri Sibu Ram Das (MFA No. 18/1999). In this regard, it seen that as per the provisions of Section 4(A) of the Employee’s Compensation

Act, 1923, it is prescribed that interest would become due where any employer is in default in paying compensation due under the act within one

month with the date it will due. In the present case the learned Commissioner had delivered the judgment on 20.07.2011, allowing one month’s

time to deposit the compensation. Accordingly, in view of the provisions of Sub Section (3) of Section 4(A) of the Employee’s Compensation Act,

1923, it is held that the interest would become due from after one month from the date of the award. In this regard, para 18 the case of the Regional

Manager, United India Insurance Co. Ltd. Vs. Sri Ranjit Das & ANR., MFA 279/2010, decided by this court on 08.12.2017 is quoted below:

“18. In this connection, the Learned Counsel for the appellant has placed reliance on the case of New India Insurance Company Ltd. Vs.

Anupama Singh & Anr., 2017 (3) GLT 770, wherein this Court has interpreted the provisions of Section 4(1)(c)(ii) of the Workmen’s

Compensation Act to hold that interest was payable after one month from the date of judgment and award passed by the Learned Commissioner,

Workmen’s Compensation.â€​

12) Hence, it is held that Respondent No.1 would be entitled for interest from 20.08.2011 i.e., 30 (thirty) days after the delivery of the judgment. The

second substantial question of law is answered accordingly. The liability to pay interest would stand from lapse of one month from the date of

impugned judgment and award and not from the date of filing the petition.

13) In respect substantial question of law No.3, it is seen that the learned Senior Counsel for the appellant had projected that the Respondent No.1

was not a workmen but was a Mohri of Tamul (Areca Nut) as per the entries made in the G.D.E and it is projected the evidence of D.W.-2 was

wrongly discarded. In this regard it is seen that the appellant had filed their written statement on 02.06.2010 and it was projected therein that the

appellant had appointed an investigator to verify the genuineness of the claim as well as driving license. From the contents of the relevant GDE entry,

it is stated that the Respondent No.1 was a Mohri in respect of Tamul (Areca Nut). The said certified true copy of Exhibit-B was obtained on

26.03.2010 i.e., prior to date of filing of the written statement, but no effort was made to amend the written statement of the appellant. Moreover, as

per the contents of the investigation report (Ext.-A), it is mentioned therein that the case was allotted for investigation on 26.02.2010 and the date of

submission of report was 26.03.2010. Therefore, on the date when the appellant had filed the written statement, the said report was available with the

appellant. As per the contents of the said report, there is no dispute that the Respondent No. 1 was employed as the handyman of the offending

vehicle. The documents enclosed with the said investigation report (Ext.-A) contains MVI report as well as form 54 and, as such, it was not a

projected case of the appellant that the Respondent No. 1 was not in employment in the offending vehicle as handyman. On 31.03.2011, an additional

statement was filed by the appellant, where it was mentioned about GDE, yet no document was enclosed or field with the additional written statement.

Therefore, without amending the written statement, the certified true copy of the G.D. entry was introduced in evidence by the D.W.-1, who was

again examined as D.W.-3. This has resulted in the learned Commissioner to discard the said evidence on the ground that the author was not

examined.

14) The said G.D. Entry i.e., Exhibit-B, having been introduced without any leave of the learned Commissioner, appears to have correctly discarded. It

is seen that the said document (Ext. B) was introduced without completing the requirement of Rule 21 of the Workmen’s Compensation Rules,

1924, and that the Respondent No. 1 did not file the said document prior to its introduction in evidence because the said document was not mentioned

in the written statement. The respective dates also have same relevance because the copy of G.D. entry was obtained on 28.12.2010, and the D.W.-1

was examined thereafter on 15.02.2011. Under the circumstances, it is seen that appellant had withheld introduction of Exhibit-B at initial stage of

trial, when the D.W.-1 was first examined and therefore, this court does not find any infirmity for the rejection of Exhibit-B for non-examination of the

author. Without making any prayer for re-examination of D.W.-1, the same witness could not have been examined as D.W.-3.

15) Accordingly, this court does not find any infirmity with the finding of the learned Commissioner, directing the appellant to pay the compensation.

The third substantial question of law answered accordingly. No other issue was raised.

16) As a result of the discussions above, it is noticed that the Respondent No.1 has suffered grievous injuries resulting in the amputation of the left

shoulder, hence, this court does not find infirmity in the finding recorded by the learned Commissioner that the Respondent No.1 had lost his earning

capacity by 90%. Accordingly, the computation of compensation as awarded by the learned Commissioner is hereby upheld.

17) As a result, the appeal stands partly allowed by reducing the liability of payment of interest from the date of 20.08.2011, being 30 (thirty) days

beyond the date of passing the impugned judgment and award, instead of liability of paying interest from the date of filing of the claim petition. All

other reliefs are refused.

18) The impugned order and judgment stands upheld the extent as indicated above, by maintaining the quantum of compensation.

19) The parties are left to bear their own cost.

20) Let the LCR be returned.