National Insurance Co. Ltd. vs Rama S/O Dnyanoba Shinde And Ors.
2006 Latest Caselaw 646 Bom

JUDGMENT

A.H. Joshi, J.

1. This appeal is listed for final hearing. It is seen that this Court (Division Bench - R.J. Kochar and A.D. Mane, JJ.) admitted this appeal on 7-9-1998. It is seen that substantial question of law as required by Section 30 of the Workmen's Compensation Act has not been framed.

It is seen that first proviso to Sub-section (1) of Section 30 reads as follows:

30.

Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal and, in the case of an order other than an order such as is referred to in Clause (b), unless the amount in dispute in the appeal is not less than three hundred rupees:

2. The learned Advocate for the appellant was therefore called upon to address on the point of substantial question of law. The learned Advocate urged that ground Nos. 2 and 8 involves substantial question of law.

3. After hearing the parties in view of the fact that the appeal is already admitted by Division Bench, this Court frames following substantial question of law on which the appeal shall be finally heard as follows:

(i) Has the trial Court legally rendered the judgment while adjudicating upon "loss of earning capacity" solely on the oral evidence of surgeon who has treated the claimant for some time?

(ii) Is the impugned judgment rendered in conformity with provisions of Section 4(1)(c)(ii) of the Workmen's Compensation Act?

4. Heard parties. The emphasis is given by learned Advocate for the appellant on non-compliance of Section 4(1)(c)(ii) i.e. judgment being rendered without certification of disablement due to non-scheduled injury without qualified medical practitioner.

5. It is not disputed that facts of the case have been correctly narrated in the judgment.

6. This Court prefers to refer to the facts as are stated in paragraphs 1 and 3 of the judgment which are quoted below for ready reference:

1. The case of the petitioner is that, he was in service with respondent No. 1 as a labourer for loading and unloading the goods in the truck. On 11-4-1996 while on duty he met with an accident. He sustained the serious injuries. There were fractures to the leg and hand. The accident was due to rash and negligent driving of the truck. He was admitted in the hospital and took the treatment for about 6 months. Since after the accident he is unable to discharge the duties as a labourer he become permanent disabled and lost his earning capacity. He was 26 years old and he was getting wages about 50 to 60 per day.

3. The written statement of the Insurance Company is at Exh. C-6. According to defence the petition is not maintainable. However, liability is denied though the coverage is there. It is denied that, the vehicle was insured. Accident, age and salary is denied. The disability is denied Loss of earning capacity is denied. It is prayed that the petition be dismissed against insurance company. Respondent No. 1, who is a owner of the truck and respondent No. 3, who is a driver of the truck proceeded ex parte.

7. It shall be pertinent to note that though in the claim petition, the details relating to the injuries suffered by the claimant and the place where he took treatment were given any denial in this regard or any special averments in this regard were not made by the Insurance Company.

It is also seen that the notice was given to Advocate on 2-4-1997 i.e. prior to filing of claim petition however contents thereof were also not disputed.

8. It is seen that during the course of trial the claimant filed documents relating to the treatment received by him in two hospitals namely the Government Hospital and a Private Nursing Home Sushrut Orthopaedic Centre, Latur. He has also summoned and got produced on record the M.L.C. case record of the accident suffered by him showing that he was subjected to emergency surgery on account of crush injury to the left forearm and compound fracture of femur. It is seen that on his own request he was discharged for further treatment when he was advised blood transfusion as well as to be shifted to S.R.T.R. Hospital Ambajogai.

9. The claimant has in support examined himself. In support of his treatment and disability he examined Dr. Vishwanath Jadhav who is Master of Surgery in Orthopaedics attached to Civil Hospital Latur. Dr. Jadhav was also attended to applicant when he was in Sushrut Orthopaedic Centre as a Visiting Doctor.

10. This witness has stated "in my opinion the injury is of the nature of permanent total disablement to the extent of 25%". He further stated that "the applicant requires permanent support of crutches for walking. He is unable to undertake the work of loading and unloading permanently".

This witness was cross-examined to suggest that to certify the disability the Medical Board has been constituted and for certifying the disability the certificate is required to be signed by the Medical Board however the certificate was issued by him in capacity as a Consultant, and that had the petitioner applied, Board would have issued the certificate. He further stated that his power of hand was reduced but a job where sitting is involved could be done by the applicant. he denied having issued false medical certificate.

11. It is pertinent to note that the Insurance Company sought summons for examining the two witnesses namely (i) Dr. Warad and (ii) Sarpanch of Gram Panchayat Khandala Tq. and Dist. Latur along with death and birth register. Though the application Exhibit C-9 praying for summons was granted, the respondent No. 2 filed pursis Exhibit C-12 stated that it does not want to lead any oral evidence without examining Dr. Warad.

12. The case has thus proceeded in following situation as rendered on the record of the trial Court:

(i) Admittedly it is a case of non-scheduled injury and hence Section 4(1)(c)(ii) of the Workmen's Compensation Act.

(ii) The claimant deposed himself to have suffered total loss of earning capacity because he was required to take help of crutches even for his routine walking as in absence of two crutches he was unable to walk.

(iii) His elbow joint bone was crushed and even the skin was required to be grafted thereat and the movement of his hand was restricted resulting in loss of power and he was not able to do the work of loading and unloading.

(iv) The claimant has suffered fracture by inserting a steel rod, and he was rendered totally incapable of doing any work which involved normal movement.

(v) This witness was not suggested that he is not an expert. This witness was not suggested that he was not a registered medical practitioner or a qualified medical practitioner.

13. After hearing the submissions of the learned Advocate and perusal of memo of appeal what reveals is as hereinafter:

14. Though before delivering the judgment this Court has formulated two questions of law still the grounds on which the judgment is sought to be challenged can be perceived from the contents of the appeal memo.

What is stated in ground No. 4 to 7 can be summarized for reference as follows:

(a) The compensation is awarded sheerly relying upon medical certificate and oral evidence.

(b) The claimant ought to have referred for second medical examination.

(c) Medical evidence and other evidence could have been considered together with the data as to how 100% disability has occurred is not proved; and

(d) that the disability is not certified by qualified medical practitioner.

15. In order to test these submissions it is necessary to see the definition of qualified medical practitioner as given in the Workmen's Compensation Act.

This terms has been defined in Section 2(i) which reads as follows:

2(0

qualified medical practitioner" means any person registered under any [Central Act, Provincial Act, or an Act, or an Act of the Legislature of a [State]] providing for the maintenance of a register of medical practitioners, or, in any area where no such last-mentioned Act is in force, any person declared by the State Government, by notification in the Official Gazette, to be a qualified medical practitioner for the purpose of this Act;

The import of this definition is that a person to be a qualified medical practitioner should be a person registered as such under the provisions of the law relating to Medical Practitioner or declared by the State Government to be so qualified therein.

16. Whether a particular medical practitioner is a qualified medical practitioner is governed by the fact of registration in the State concerned. When disputed these facts need to be proved and can be disproved.

17. On the facts of the case it is seen that Dr. Jadhav who is holding the qualification of Master of Surgery and is Orthopaedic Surgeon Class-I in Civil Hospital under the Government of Maharashtra would be liable to be presumed by taking judicial notice of facts of his qualification and appointment by the State Government to be a qualified medical practitioner. This presumption could have been rebutted, on rebuttable presumption however for this rebuttal a denial in the written statement and evidence to the contrary or otherwise destruction of claimant's evidence was necessary.

18. In the given circumstances it has happened that the disability certificate may have come on record at later point of time.

It is seen that the claim petition is filed on 28-7-1997 and the disability certificate is dated 9-3-1998 i.e. admittedly procured and filed during the pendency of case. In this situation it was open to the Insurance Company to have raised dispute as to reliance of this certificate either by amending the written statement or even without doing this, sheerly by suggesting to the witness that he was not a qualified medical practitioner which would have enabled the claimant or the witness concerned to bring proper evidence before Court to strictly prove his being a qualified medical practitioner, and such failure would have classified the case in the category of his qualifications not being proved.

19. On the facts of the case it is seen that cross-examination of Dr. Jadhav does not reveal that his being a qualified medical practitioner or an expert is challenged.

All that was challenged is authority to issue a certificate in the background of existence of a medical board. Moreover a certificate to be issued by a medical board in a Civil Hospital is not within the contemplation of the Workmen's

Compensation Act, while it may be a matter vis-a-vis a Government servant or patients who are claiming certain benefits under the scheme of the Government.

20. Thus the situation that emerges is that evidence of Dr. Jadhav answers the test of facts as to disability and loss of earning capacity suffered by the applicant, and applicant's having suffered earning capacity to the extent of 100% is duly proved by a qualified medical practitioner.

21. Once it is found that disability is due to injuries which are non-scheduled was proved by a qualified medical practitioner all that was open either to the employer or to the Insurance Company is to bring evidence of rebuttal. It is seen that by filing pursis exhibit C-12 the appellant has declared to the Court it does not want to lead any evidence and left the Court with no choice and option than proceed on the basis of facts proved by claimant which went unchallenged.

22. In spite of the aforesaid factual matrix as to the claimant's evidence having gone un-contested the Insurance Company has filed this appeal. The learned Advocate Mr. Upadhye placed reliance on two judgments in (i) New India Assurance Co. Ltd. Bombay and Suresh Pandurang Sliinde alias Patil, Bhusawal and Anr. 2006(3) Mh.L.J. 458 : 2006(11) LLJ Bombay 1 and (ii) New India Assurance Co. Ltd. v. Ganesh s/o Narayan Pitle and anr. These judgments are relied on claiming that evidence which had come before the Court was found by the Court to be insufficient, the case was remanded.

23. On the facts of this case this Court finds that evidence that was received was sufficient to prove disablement. Reliance in the form of Medical Legal Case papers which are exhibit C-9 which are on record and do sufficiently prove that the applicant was an in-patient in Government Hospital. He had suffered fractures, was required to be operated as an emergency case under general anaesthesia and advised further and better treatment in the higher medical centres and was therefore referred for treatment to S.R.T.R. Medical College Hospital, Ambajogai. Instead, the claimant preferred to go to private orthopaedic centre where better facilities may be available and was treated by same orthopaedic surgeon i.e. Dr. Jadhav. On the proved fact that the claimant was rendered unable to walk without crutches and due to crush injury in the elbow even the skin tissue was damaged and skin was required to be grafted. It is thus duly proved by the claimant that he was rendered unable to undertake the work of hard manual labour of loading and unloading which he was undertaking prior to accident and this fact is duly proved by a qualified medical practitioner who has not just answered the term "qualified medical practitioner" but is himself holding the qualification of orthopaedic Surgeon as he is having a degree of Master of Surgery (Orthopaedic) and is a designated Class-I Orthopaedic Surgeon in the Government Hospital.

On facts of case in the light of above discussion it is clear beyond any room of debate and doubt that the claimant had suffered loss of 100% earning capacity and award in question cannot be faulted. It is seen that in the trial Court the claimant had placed reliance on reported judgment of Division Bench of Orissa High Court in C. David v. Govind Chandra Mishra and Anr. which was case of an appeal by the very Insurance Company which is appellant before this Court and it was a case of non-scheduled injury. It is seen that in that case the injuries were noted by the Court as follows:

The Commissioner found that the appellant sustained different grievous and simple injuries including multiple fracture of right ulna and right forearm. The Commissioner accepted the statement of the doctor that the appellant suffered to the extent of permanent partial physical disability of 60 per cent.

The Division Bench of Orissa High Court accepted the position that Doctor is required to make out loss of earning capacity which is the foundation of working out of entitlement of the claimant and due weightage will have to be given to assessment of loss of earning capacity done by medical practitioner.

24. Technically speaking the appellant may be right in debating that the certificate of the disablement given by Dr. Jadhav refers to 25% disablement however does not specify loss of earning capacity. In this situation it may have become necessary to refer the claimant for assessment of loss of earning capacity had the Court been left to rely upon the Certificate. In the present case however claimant has himself examined said qualified medical practitioner who had brought with him the x-ray plates and other documents. He has proved in his cross-examination the fact that he has rendered incapable to undertake the job of loading and unloading permanently in future.

25. Thus it is a case of testification of loss of earning capacity by a qualified medical practitioner. Oral testimony before the Court has got highest worth and credibility than a simple certificate. Even if had the certificate of qualified medical practitioner being called it was found otherwise liable to be formally proved and the procedure of proving is the same i.e. recording the oral evidence of the said qualified medical practitioner.

26. On the facts of the case when the qualified medical practitioner had himself stepped into witness box and certified that the workman concerned was permanently rendered totally incapable to undertake the work he was doing the technicality that a certification is not there, would not amount to justice and would be a formal requirement dehorsed to what is required by law.

Nothing has remained to be enquired and remand of the case is not called for.

27. This Court therefore holds that the substantial questions of the law the appeal is preferred are liable to be answered against the appellant. This Court therefore holds that the judgment and order under appeal does not suffer from any infirmity. Testification by qualified medical practitioner answers requirement of Section 4(1)(c)(ii) i.e. certification of the percentage of disability by a qualified medical practitioner. The appeal therefore does not require any interference. The same is dismissed with costs.