Zainuddin and Others vs Arjun Kumar Goel and Others

G. Narendra, J.—MFA No. 31840/2010 is filed by the claimant seeking enhancement of compensation. Being aggrieved by the judgment and order of the Commissioner for Workmen''s Compensation granting compensation to the claimant, the insurer has filed MFA No. 30408/2011 challenging quantum.

Heard. With the consent of the leaned counsel appearing for the parties, the matters are taken up together for consideration and final disposal.

For the sake of convenience the parties are referred to as they are arrayed before the Commissioner for Workmen''s Compensation.

This Court while admitting the appeal of the insurer framed the following substantial question of law:

"Whether the Commissioner misread the evidence on record in holding that the injuries were sustained in the accident in question?"

The brief facts of the case are as follows:--The case of he claimant is that he is a driver employed under the first respondent who is the owner of the vehicle bearing Reg. No. AP-10/U-2506. That on 30.12.2007 when he was proceeding from Pune to Mumbai on NH-9 at about 6:30 a.m. they are entered within the limits of Vadagaon Maval police station at that time another tractor came from opposite direction and caused accident and as a result of which he sustained grievous injuries and has become disabled.

The appellant was aged about 38 years as on the date of the accident and was paid monthly salary of Rs. 5,000/- and batta Rs. 100/- per day and as a result of injuries suffered in the accident, he has become disabled and he is unable to support his family.

The respondent/insurer entered appearance and has filed its detailed statement of objections denying the injury alleged to have been suffered by him though it has admitted the accident. The case of the insurer is that though the accident took place but as per the statement of the claimant before the jurisdictional police nobody had suffered any injuries. The statement is produced at Ex. P3, hence, they would state that the claimant did not suffer any injury in the said accident and that he has failed to demonstrate the injury.

On these averments, the Commissioner formulated six issues. The claimant examined himself as PW.1 and got marked 8 exhibits i.e. FIR, Spot Panchanama, Statement of claimant recorded under section 161 of Cr.P.C, driving licence, x-ray reports, discharge summary by Gurunanak Hospital, Bidar and recommendatory letter by the Casuality Medical Officer, District Hospital, Bidar and has also got examined one Doctor as PW.2 who has issued disability certificate. The first respondent owner has been placed ex-parte. The second respondent/insurer apart from filing its detailed statement of objections, it has neither got marked any documents nor examined any witnesses.

The contentions of the claimant is that the Commissioner while computing the compensation has erroneously assessed the disability at 20% only and while doing so, it has erred in not appreciating the evidentiary value of the x-rays and scan report. The doctor PW.2 who has issued the disability certificate has been subjected to the cross-examination and nothing has been elicited to disbelieve the doctor. It is contended by the claimant''s counsel that though the whole body disability is only 10%, it has resulted in functional disability of 100%. He would submit that as a result of the injury the claimant had to given up his avocation as a driver of a heavy vehicle. He would draw the attention of this court to a photo attached along with the disability certificate at Ex. P3. The photo is not conclusive. No material other than the disability certificate and Exs. P7 and P8, which are the discharge summary and recommendatory letter by the Casuality Medical Officer of the District Hospital, Bidar, are produced and which by themselves do not advance the case of the claimant regarding functional disability. The discharge summary states that the procedure undergone is skin grafting, it records that the claimant has suffered crush injury. Ex. P8 only compliments the contents of Ex. P7, wherein the CMO District Government Hospital Bidar, in his recommendatory letter has stated that patient i.e. claimant, requires tibia de-gloving injury, plastic surgery intervention and neither of the Exs. P7 or P8 speak of any fractures. Ex. P7 describes injury as crush injury and Ex. P8 records de-gloving injury and the procedure which is stated to have been carried out on the claimant is only skin grafting.

Learned counsel for the claimant vehemently submits that the scan report, which is taken in the year 2009, would demonstrate the fracture. The contention is counter to the finding of the doctor. In the disability certificate wherein it is stated that x-ray does not reveal any abnormality. The counsel for the claimant has admitted that the whole body disability as taken by the Commissioner is correct but the Commissioner failed to note functional disability suffered by the claimant.

Though much argument are advanced on the point of functional disability, there is neither any pleading nor sufficient and cogent evidence to convince this Court that the findings of the Commissioner is erroneous or that it warrants with interference. In that view of the matter, I do not see any ground to admit the appeal. Accordingly, the appeal is rejected as devoid of merits. The judgment and award of the Commissioner is confirmed.

The counsel for the insurer would submit that the appeal has been admitted on the ground that the Commissioner misread the evidence on record in holding that the injuries were sustained in the accident in question.

It is no doubt true that the insurer filed detailed statement of objections. Apart from filing statement of objections, the insurer appellant has remained a mute spectator. It has neither let in evidence in support of any plea nor has it cross-examined any witness to substantiate its plea. The Hon''ble Apex Court in the ruling reported in Fahim Ahmad and Others Vs. United India Insurance Company Ltd. and Others, in the case of Fahim Ahmad & Ors. v. United India Insurance Company Ltd. & Ors., has held that it is not sufficient if the insurer merely takes a plea the insurer is not only required to plead its case but also demonstrate the case with cogent evidence.

The counsel for the insurer would vehemently argue that the claimant has not at all demonstrated the injury suffered by him and her entire argument would center around Ex. P3, which is the statement recorded under Section 161 of Cr.P.C. It is seen that Ex. P3 is recorded in Marathi language, which is not a language known to the claimant. Insurer would admit that the statement has been written down by the police and it is not countersigned by the claimant. She would rely on the judgment of the Hon''ble Apex court rendered in Civil Appeal No. 2526 of 2007, disposed of on 15.05.2007. Referring to paragraph 13 of the said judgment, she would state that once a party admits a part of the document the said party cannot be permitted to turn around and contend that the other part of the document cannot be relied upon or cannot be looked into. There is no quarrel regarding the proposition. Once a document is marked as an exhibit, it is open for both the parties to rely upon and demonstrate their case on strength of contents of the said document. She would submit that the statement amounts to an admission by the claimant himself and it has to be concluded that he has not suffered any injury at all as stated earlier. The exhibit is a statement recorded by the police and the author is the police officer. It is neither an admission nor of any conclusive value as the same is neither countersigned or acknowledged by the claimant and is stated in a language, which is not known to the claimant. Hence, it has no binding effect or is of much evidentiary value to demonstrate the case of the insurer. If the insurer had really intended to demonstrates it''s case, it could have always summoned the doctor from the Lokmanya Hospital from Pune and Guru Nanak Hospital from Bidar or the CMO of the District Hospital who had issued Ex. P8. The insurer having failed to take any measures to demonstrate its case, it has not open for the insurer to contend before this Court that the claimant had not suffered any injury. Exs. P6, P7 and P8 have been acted upon by the Commissioner to examine and assess the nature of injuries and its impact on the claimant. The insurer has not adduced any evidence to disbelieve or to eschew Exs. P6, P7 and P8 from its consideration. That being the case, the substantial question of law is answered against the insurer. Accordingly, the appeals stand dismissed.

The counsel for the claimant submits that the entire amount is in deposit before this court.

Registry is directed to release the said sum in favour of the claimant after authenticating his identity and obtaining indemnity bond.