United India Insurance Company Ltd vs Md Jakir Islam And Anr

Heard Mr. S.S Sharma, learned senior counsel appearing for the appellant Insurance Company. By the order dated 01.06.2018, it was accepted that the respondent No.1 claimant had refused to accept the notice which was caused to be served upon him by personal service. Accordingly, a satisfaction was arrived that the notice on respondent No.1 had been served. Mr. P. Sundi, learned counsel appeared for the respondent No.2 owner of the vehicle, but when the matter is taken up for hearing, the learned counsel is not present.

The claimant respondent No.1 was employed as a driver of the vehicle AS-02A/9861, which was a bus owned by the owner respondent No.2. While proceeding from Nagaon towards Hojai on 13.12.1999, the bus met with an accident and turned turtle. As a result of the accident, the claimant respondent No.1 sustained certain injuries. In course of the claim proceeding, the claimant respondent No.1 led the evidence that he was employed as a driver of the vehicle AS-02A/9861, which met with an accident on 13.12.1999 and in the accident he had sustained certain fracture injuries on his right shoulder, amongst others, along with some other injuries. He also gave the evidence that he was paid a salary of Rs.2400/- per month.

The doctor who gave treatment to the claimant was examined as PW-2 and in his deposition stated that the respondent No.1 claimant sustained some fracture injuries on his right shoulder. Later on, when the plaster was opened, the medical opinion was that he could not move his right shoulder in a proper manner due to pain and upon a later examination, it was found that the claimant respondent No.1 had developed osteo-arthrities due to his earlier injury. The medical opinion given was that the disability was of permanent nature and that there was no chance of any recovery. Accordingly, the medical opinion rendered was that the claimant respondent No.1 suffered disablement of 20% with a loss of earning capacity of 40%. Based upon the said evidence, by the award dated 11.02.2011 in Case No.WC 141/1999, the Commissioner of Workmen Compensation, Nagaon had awarded a compensation amounting to Rs.1,20,914/- along with an interest with 7.5% per annum from 22.09.2000 up to the date of the award and thereafter to pay interest at the rate of 9% per annum till realisation.

The award dated 11.02.2011 has been assailed by the appellant Insurance Company in this appeal and the grounds urged upon is that the PW-2 was incompetent to assess the loss of earning capacity inasmuch as, he is a chest specialist and not an orthopaedic specialist.

Ordinarily, the said ground taken would have had some acceptance as the injury sustained to the right shoulder as claimed by the claimant respondent No.1 would have been within the purview of an orthopaedic specialist. But what we take note of is that the PW-2 doctor was serving as the Superintendent of BP Civil Hospital, Nagaon at the relevant time when he had examined the claimant respondent No.1. There is no material to arrive at a conclusion that the BP Civil Hospital, Nagaon at the relevant point of time had their specialist department to be headed by the respective specialists. The Medical Officer In-charge of the hospital in the absence of there being an specialist department, cannot be said to be incompetent to assess the nature of the injury sustained by a workman, who was under his treatment.

The medical assessment as per the evidence of PW-2 is that the claimant respondent No.1 had difficulties in the movement of his right shoulder and that after repeated examination, an opinion was formed that such disability was permanent in nature. In any view of the matter, the PW-2 was also a qualified medical professional and all that he had assessed was that the claimant respondent No.1 even after recovery from the fracture had difficulties in the rotatory movement in the shoulder. We are of the view that in order to arrive at a conclusion whether a person has difficulties in rotatory movement of a shoulder does not have the requirement of a specialist orthopaedic surgeon for his opinion and even a medical professional under whose treatment the claimant respondent No.1 underwent would also be competent enough to give its opinion on the said aspect.

The physical state of the claimant did not require any complicated medical opinion to be given except to make an assessment whether the rotatory movement of his right shoulder was good enough or there were restrictions in the rotatory movement. Further, from the evidence on record, we find that neither in the cross-examination nor by producing any further material the Insurance Company had confronted the evidence of the PW-2 doctor that the claimant respondent No.1 had suffered a disability in the rotatory movement of his right shoulder and that the disability was permanent in nature.

Another reason for the Insurance Company to disbelieve the medical evidence was that the claimant respondent No.1 as per his own admission still had a valid driving license in his favour. Based upon it, the appellant Insurance Company contends that as the claimant respondent No.1 can still continue his earlier vocation of driving a vehicle, therefore, it cannot be said that he had suffered any disability or any loss of earning as deposed in the medical evidence. At the outset the said contention appears to be attractive, but on a deeper consideration, we are of the view that the medical evidence shows 20% disability and 40% loss of earning capacity, which again would indicate that the claimant respondent No.1 did not became wholly disabled to drive a vehicle, but his disability was of 20%. No evidence is available on record that in spite of the injury, the claimant respondent No.1 is continuing with his earlier vocation of driving a bus with impunity without any loss of capability and is earning in the same manner as he was prior to the accident.

In such view of the matter, the admission of the claimant respondent No.1 that he still had a driving license in his favour by itself cannot be accepted to mean that he neither had suffered any disability nor any loss of income at all.

Another ground taken by the appellant Insurance Company is that under the law, it being a case of injury, the rate of interest could have been awarded only from the date of the judgment onwards and not from the date of the injury or from the date of filing of the claim petition. To that extent, we are in agreement with Mr. S.S Sharma, learned senior counsel and accordingly, the part of the award dated 11.12.2011 providing for the rate of interest @7.5% per annum from 22.09.2002 up to the date of award is accordingly interfered and the Insurance Company would not be liable to pay the interest for the said period.

Apart from the aforesaid limited interference, the rest of the award remains un-interfered. If the required amount had not been paid to the claimant respondent No.1, the same be paid by the Insurance Company within a period of two months from the date of receipt of a certified copy of this order after proper identification of the concerned claimant.

The appeal stands partly allowed as indicated above.

Send back the LCR immediately.