National Insurance Co. Ltd. Vs. Benudhar Upadhya and anr. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - after assessing the entire evidence and other materials including the medical certificates with regard to treatment and physical disability as well as loss of earning capacity of petitioner-respondent no. 8. law is well settled that an injured is entitled to receive compensation.a.s. naidu, j.1. the judgment dated 30th june, 1999 passed by the commissioner for workmen's compensation and ass. labour commissioner, balasore in w.c. case no. 40 of 1994 awarding a compensation of rs. 37,063.00 in favour of petitioner-respondent no. 1 is assailed by the national insurance company invoking jurisdiction of this court under section 30 of the workmen's compensation act2. in a motor vehicle accident that occurred on 7/8-5-1994 petitioner-respondent no. 1 who was driving a trekker bearing registration number or-oj-7635 sustained grievous injuries on his body. he was first treated at the balasore hospital as an indoor patient and then shifted to the scb medical college hospital at cuttack. he filed the aforesaid case before the commissioner claiming a compensation of rs. 1,14,000.00.the owner of the aforesaid trekker though received notice of the case, did not appear before the learned commissioner for which he was set ex parte.the appellant-insurance company in its written statement took the stand that petitioner-respondent no. 1 did not sustain any loss of his earning capacity and disowned its liability to pay any compensation.after assessing the entire evidence and other materials including the medical certificates with regard to treatment and physical disability as well as loss of earning capacity of petitioner-respondent no. 1, the learned commissioner arrived at the conclusion that he sustained a loss of earning capacity of 35%. on the basis of such conclusion coupled with other circumstances, the learned commissioner by the impugned judgment awarded the aforesaid compensation in favour of petitioner-respondent no. 1.3. learned counsel appearing for the appellant-insurance company assails the aforesaid judgment of the learned commissioner as not sustainable mainly on two grounds. first, in absence of evidence of any doctor before the learned commissioner with regard to loss of earning capacity of petitioner-respondent no. 1 owing to the accident in question, the learned commissioner acted illegally and with material irregularity in arriving at the conclusion that the loss of earning capacity was 35%. second, even after the accident in question petitioner-respondent no. 1 had renewed his driving licence and thus there was no loss of his earning capacity owing to the accident. he submitted that these aspects were not kept in mind by the learned commissioner while passing the impugned judgment.4. the submissions of the learned counsel for the appellant are strongly repudiated by the learned counsel for petitioner- respondent no. 1 stating that in a given case if materials are available, commissioner can assess the loss of earning capacity of a victim of accident after perusing certificate with regard to his physical disability and other materials. he also submitted that due to the injuries sustained by petitioner-respondent no. 1 he is not capable of driving any heavy vehicle and though his driving licence has been renewed, it cannot be said that he can perform the same duty which he was performing prior to the accident. he thus submitted that none of the grounds on which the learned counsel for the appellant assails the judgment of the learned commissioner is sustainable.5. i have perused the pleadings of the parties and the materials available on record. there is no dispute with regard to the fact that petitioner-respondent no. 1 was the driver of the trekker in question which met with accident and he sustained grievous injuries. there is also no dispute that the said accident occurred, arose out of the employment of petitioner-respondent no. 1 and in course of discharging his duties. he had filed several documents before the learned commissioner including the injury report (ext.3), x-ray plates, discharge certificate issued by the scb medical college-hospital, cuttack (ext.5) and orthopedic handicap certificate issued by the medical board, balasore (ext. 7), etc. he also adduced evidence in support of the fact that he was aged 28 years at the time of the accident. there is no dispute with regard to his earning at the time of the accident. thus the only controversy is with regard to the learned commissioner assessing the loss of earning capacity in absence of evidence of any doctor.6. learned counsel for the appellant in support of his contention relies upon an earlier decision of this court reported in 1996(2) tac 619 (orissa) (oriental insurance company limited v. gajendra prusty and anr.). in that case, a division bench of this court categorically held that the percentage of physical disability has a vital role and a medical practitioner has to assess the loss of earning capacity. for such assessment there must be a basis, but the same should not depend upon guesswork. loss of earning capacity has to be assessed on sound principles of medical science. it cannot be hypothetical nor can be concluded on the basis of surmises and conjectures.7. countenancing the submission of the learned counsel for the appellant-insurance company, learned counsel for petitioner-respondent no. 1 submits that the accident occurred in the year 1994. more than twelve years have passed in the meanwhile. that apart, petitioner-respondent no. 1 exhibited the orthopedic handicap certificate issued by the medical board of balasore which was marked ext. 7, the injury certificate which was marked ext.3 besides other documents with regard to his treatment, etc. he submits that considering that the case is lingering since 1994, without remanding the case to the learned commissioner, this court itself may assess the loss of earning capacity of petitioner-respondent no. 1 and finally dispose of the matter at this level. referring to the very same decision in the case of gajendra prusty as cited by the learned counsel for the appellant-insurance company, he submitted that in the said decision a division bench of this court considering the job of the injured, injury sustained by him, period of his hospitalisation, etc. had assessed the loss of earning capacity and entitlement of the injured. thus there is no bar for this court for pass judgment in this case following the ratio of the said decision.8. law is well settled that an injured is entitled to receive compensation. but then the same should be just, fair and proper, and should not be hypothetical or based on surmises and conjectures. the compensation should also not be profitable. while awarding compensation the court should always keep in mind the object of the enactment of the compensation act. considering the job which was undertaken by the workman at the time of the accident, the nature of injuries sustained by him which arose out of his employment and in course of discharge of his duties, the period of his hospitalization and treatment, the percentage of his disability vis-a-vis the percentage of loss of his earning capacity has to be assessed by taking a pragmatic view assessment of loss of earning capacity shall be with reference to the work which the injured was capable of performing at the time of the accident and not with reference to the work which he was performing at that time.9. after perusing the physical disability certificate, injury report and the evidence as to avocation of petitioner-respondent no. 1 this court holds that the loss of earning capacity in the instant case should be assessed at 30%. so far as the contention with regard to renewal of driving licence by petitioner-respondent no. 1 after the accident is concerned, considering the submissions of the learned counsel for both sides, and scrutinizing the exhibits, the medical reports, etc., this court in a spirit of lok adalat feels that an amount of rs. 30,000.00 (thirty thousand) as against the amount awarded by the learned commissioner would be just and adequate compensation to petitioner-respondent no. 1.10. accordingly this court disposes of the miscellaneous appeal reducing the compensation of rs. 37,063.00 awarded by the learned commissioner to rs. 30,000.00 (thirty thousand). the entire amount of compensation awarded by the learned commissioner having been deposited before this court, this court directs that out of the said deposit rs. 30,000.00 with proportionate interest accrued thereon be disbursed to petitioner-respondent no. 1 on proper identification and the balance amount with proportionate interest thereon be returned to the appellant-insurance company by a crossed-cheque/draft.