New India Assurance Co. Ltd. Vs. Sudarsan Samal 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]. d.p. mohapatra, j. 1. the new india assurance company ltd. filed this appeal under section 30 of the workmen's compensation act, 1923 (for short 'the act') challenging the judgment of the joint labour commissioner-cum-commissioner for workmen's compensation, bhubaneswar in w.c. case no. 38 of 1991 awarding compensation of rs. 1,03,990/- to respondent no. 1 and directing the appellant to pay the entire amount.2. the factual backdrop of the case relevant for disposal of the appeal may be stated thus:sudarsan samel respondent no. 1 was employed as driver of the tipper-truck bearing registration no. osd 250 owned by respondent no. 2m/s. b. engineers and builders and insured by the appellant. on july 24, 1989 when the respondent no. l was driving the vehicle, he met with an accident in which he was seriously injured. he was treated initially at kenduguda public health centre and when his condition deteriorated he was shifted to m.k.c.g. medical college hospital, berhampur. he remained as an indoor patient in the hospital from july 25, 1989 to august 22, 1989. thereafter he underwent treatment in lokanath nursing home, cuttack and then at nirtar, olatpur. the injured sustained crushed compound fracture of tribia and fibula, fracture of femaral shaft, lacerated wound on the left ankle joint and multiple injuries on other parts of his body. on account of the injuries sustained, his right leg was shortened by 1 1/2 inch and there was malunion of right tibia. in the circumstances the respondent no. 1 claimed compensation on the basis of the total disablement and cent percent loss of earning capacity,3. the employer-respondent no. 2 neither filed written statement nor contested the case. he however filed a copy of the insurance policy. the appellant-insurance company filed written statement generally denying the allegations in the claim petition and disclaiming its liability for compensation.the claimant was examined as p.w. 1 and the doctor sudhir kumar mohapatra, clinical tutor of orthopaedic, m.k.c.g. medical college hospital, berhampur was examined as p.w.2 several documents were filed on behalf of the claimant. no evidence was adduced on behalf of the appellant.4. assessing the evidence oh record the commissioner held, inter alia that the respondent no. 1 sustained injuries due to the accident which arose out of and in course of his employment under respondent no. 2; that respondent no. 1 was 30 years old on the date of the accident; that his income was rs. 1000/- per month. relying on the evidence of the doctor he held that respondent no. 1 cannot drive any vehicle and will not be able to do any manual work giving strain to both the legs, and that he was entitled to get compensation of the basis of loss of 100% earning capacity. on that basis the compensation was quantified at rs. 1,03,990/-. referring to the insurance policy, the commissioner held that the appellant was liable to pay compensation to respondent no. 1 5. the main thrust of the submissions of ms.m. ghose, learned counsel for the appellant was that the commissioner erred in treating the case of the injured to be one of total disablement instead of partial disablement. she also contended that in the absence of any statement by the doctor regarding loss of earning capacity of the injured, the commissioner committed illegality in determining the compensation. referring to explanation ii of section 4(1)(c)(ii) of the act, the she contended that the commissioner committed illegality in determining the compensation as noted above without any statement to that effect by the doctor.sri k.k. jena learned counsel for respondent no. 1 supported the award passed by the commissioner.6. on the contentions raised by the learned counsel for the parties, the moot question that arises for consideration is whether in the facts and circumstances of the case the commissioner was right in treating the case to be one of total disablement. the term 'total disablement' has been defined in section 2(1) of the act as:'total disablement' means such disablement, whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement. provided that permanent total disablement shall be deemed to result from every injury specified in part i of schedule i or from any combination of injuries specified i part ii thereof where the aggregate percentage of the loss of earning capacity, as specified in the said part ii against those injuries, amounts to one hundred percent or more.' the term 'partial disablement' is defined in section 2(g) as:'partial disablement means, where the disablement is of a temporary nature, such disablement as reduces the earning capacity of a workman in any employment in which he was engaged at the time of the accident resulting in the disablement, and, where the disablement is of a permanent nature, such disablement as reduces his earning capacity in every employment which he was capable of undertaking at that time: provided that every injury specified (in part ii of schedule i) shall be deemed to result in permanent partial disablement.'concededly section 4(1) of the act is applicable to the case. the question is whether clause (b) or (c) of the said section extends to the facts and circumstances of the case. in the present case, as noted earlier, the commissioner, on assessment of evidence on record, has recorded his finding that due to the injuries sustained, the right leg of the respondent no. 1 has been shortened by 1 1/2 inches, that there is mal-union of the right tibia, that he will not be able to bend the leg beyond 15 degree and that in such circumstances he cannot drive a vehicle and cannot do any manual work giving strain to the legs. these are findings of fact which cannot be disturbed in this appeal in view of the limitation under section 30 of the act. therefore, the limited question which emerges on the above findings is: can it be said to be a case of total disablement or partial disablement. the supreme court in the case of pratap narian singh deo v. shrinivas sabata reported in (1976-i-llj-235), considered the case of carpenter who had lost one hand by amputation. the commissioner had held that the case is one of total disablement. the apex court upheld the finding holding that in the circumstances the injured could not work as a carpenter in his life.7. coming to the facts of the case at hand, there can be little scope for doubt that the injured has suffered total disablement for undertaking the work of a driver which he was discharging at the time of the accident. in such circumstances, the commissioner, in my view was right in treating the case as one of total disablement.coming to the second contention raised by ms. ghosh, the kerala high court in the case of new india assurance co. ltd. v. k. abdullakutty (1993-i-llj-1122) interpreting section 4(1)(c)(ii) held that though the disability certificate is one of the basic documents necessary to establish the disablement sustained by the workman as result of the injuries that cannot be equated with loss of the earning power; loss of earning power is a question of fact which hasto be judged on the basis of the nature of injuries sustained and also with due regard to the nature of the avocation of the workman at the time when he sustained the injury along with other attendant factors: it is not for the medical practitioner to speck of loss of earning power but it is a question to be adjudicated by the commissioner, loss of earning capacity is not necessarily co-extensive with the loss of physical capacity; medical evidence, though relevant cannot be decisive. the court rejected the contention that as provided in section 4(1)(c)(ii) of the act the loss of earning capacity is a matter for a qualified medical practitioner to assess and it cannot be judged by the commissioner since the commissioner was entrusted only with the duly of adjudicating the compensation payable to the injured workman. the court relied on the decisions of calcutta high court, air 1969 cal 378: calcutta licensed measures bengal chamber of commerce v. md. hossain, air 1957 cal 660: kalidas ghosal v. s.k. mondal and certain other cases. i am in respectful agreement with the view taken by the kerala high court.a doctor is competent to speak about the physical disablement suffered by the injured which is reasonably within the scope of his expertise. regarding loss of earning capacity, which cannot be equated with physical disablement in all cases, he cannot be said to be an expert in the matter. his evidence though admissible to be considered together with other evidence available in the case. the commissioner in whom the power of adjudication is vested under the statute may or may nor accept the doctor's statement relating to loss of earning capacity of the injured on judging the entire matter. in case where the doctor while making a statement regarding extent of physical disablement suffered by the injured, does not specifically state about loss of earning, capacity the commissioner is to consider the other evidence available in the case and record his finding on the point. in the present case, as noted earlier, on consideration of the evidence of p.ws. 1, and 2, the commissioner recorded the finding indicating that the injured is incapable of driving any vehicle and of doing any manual work putting strain to his legs, therefore there is no scope for doubt that he adjudged the case as one of total disablement. as such, calculation of compensation on that basis is not illegal or unreasonable or unjust or improper. there is little scope to interfere with the award passed by the commissioner.8. accordingly the appeal is dismissed, but in the circumstances of the case without any order for costs.