United India Insurance Co. Ltd vs Babul Das And Anr
2023 Latest Caselaw 443 Gua

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GAHC010210082022




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                   Case No. : MFA/8/2023

            UNITED INDIA INSURANCE CO. LTD.
            A PUBLIC SECTOR UNDERTAKING COMPANY, REGISTERED AND
            INCORPORATED UNDER COMPANIES ACT, 1956, HAVING ITS REGISTERED
            OFFICE AT 24 WHITES ROAD, CHENNAI- 600014 WITH ONE OF ITS
            REGIONAL OFFICE AT CHIBBER HOUSE, 2ND FLOOR, G.S. ROAD,
            ULUBARI- 5, GUWAHATI, REP. BY ITS REGIONAL MANAGER, GUWAHATI,
            ASSAM.



            VERSUS

            BABUL DAS AND ANR.
            S/O LATE SASHI MOHAN DAS,
            VILL.- SASHTRI NAGAR,
            P.O.- BALADMARI,
            P.S.- GOALPARA,
            DIST.- GOALPARA ASSAM, PIN- 783121.

            2:SWARNALATA DAS
             S/O HARENDRA CHANDRA DAS

            VILL.- BAPUJI NAGAR

            P.O.- BALADMARI

            P.S.- GOALPARA

            DIST.- GOALPARA ASSAM
            PIN- 783121

Advocate for the Petitioner   : MR. A K PURKAYASTHA

Advocate for the Respondent :
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                                 BEFORE
                   HONOURABLE MR. JUSTICE AJIT BORTHAKUR

                                       ORDER

08.02.2023

Heard Mr. R. C. Paul, learned counsel for the appellant.

This appeal under Section 30 of the E.C. Act, 1923 has been preferred against the impugned Judgment and Order, dated 11.08.2022, passed by the learned Commissioner, Employee's Compensation, Kamrup(M) at Guwahati in W.C. Case No. 10 of 2017 awarding a sum of Rs.8,32,309/- against the appellant to be paid within a period of 30 days from the date of the order with interest @12% w.e.f. one month of the date of the accident.

The appeal is admitted on the following substantial questions of law subject to deposit of 50% of the awarded amount before the Registry of this Court within a period of 6 (six) weeks-

1. Whether the learned Commissioner of Employee's Compensation below committed an error in law in accepting the monthly salary of the workman to be Rs.12,000/- inclusive Khoraki as per minimum wages declared by the State Government for the Passenger Vehicle Driver whereas Rs.16,000/- per month solely on the basis of the averments made by the claimant as well as the Employer without taking into consideration the legal proposition of law that the averment made by the claimant pertaining to his monthly wages has to be substantially proved on the basis of cogent and legally acceptable evidence and in view of such apparent illegality and infirmity, the impugned finding and consequent decision in awarding Page No.# 3/4

such compensation is not sustainable in law and the same is consequently is liable to be struck down as non est?

2. Whether the injury sustained by the claimant not being one as specified in Schedule I Part II of the Workmen's Compensation Act, 1923 and there being no evidence at all to show that alleged disablement of the claimant reduces his earning capacity in every employment which was capable of undertaking at the time of accident, the learned Commissioner was justified in granting compensation in accordance with the provisions of Section 4(1)(C)(ii) of the Act?

3. Whether, the learned Commissioner of Employees Compensation below is justified to award compensation without deciding the basic question as to whether the injury sustained by the Claimant due to RTA (Road Traffic Accident) resulted in Permanent Total Disablement or Permanent Partial Disablement or Temporary Partial Disablement strictly on the basis of the evidence on record?

4. Whether the learned Commissioner of Employees Compensation below is justified in awarding the compensation to the workmen solely on the basis of the Disability Certificate (Ext 4) issued by the Office of the Joint Director of Health Services, Goalpara on the basis of the medical examination conducted by the PW- 2, the Doctor who is by profession MS in General Surgery without deciding the question as to whether PW-2 can be said to be qualified medical practitioner as defined under Section 2(i) read with Section 11 of the Act in view of the fact that PW- 2 is not a specialist on the subject of Orthopaedic Surgeon?

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5. Whether the learned Commissioner of Employees Compensation below is justified in awarding compensation to the workman relying the Disability Certificate on the point of percentage certificate to decide the question as to whether the disability is permanent or partial or temporary in nature in absence of any indication in the disability certificate or in absence of any evidence adduced by the said Doctor?

The appellant is permitted to raise any other substantial question of law which may arise in course of hearing.

Issue notice. Steps be taken by registered post with A/D within 3(three) days.

Call for the records.

List after 4(four) weeks.

JUDGE

Comparing Assistant