New India Assurance Co. Ltd. Vs. Surendra Kumar Sendha 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. in this appeal filed under section 30 of the workmen's compensation act, 1923 (hereinafter referred to as 'w.c. act.), the new india assurance co. ltd. has challenged the judgment of asstt. labour commissioner-cum-commissioner for workmen's compensation, cuttack. in w.c. case no. 82 of 1990 awarding a sum of rs. 47.652.75 as compensation in favour of respondent no. i, workman, surendra kumar sen jha, for injuries sustained by him in the accident arising out of and in course of his employment.2. the aforementioned w.c. case was instituted on the application filed by the respondent no. 1 claiming compensation of rs. 1,00,000/- from respondent no. 2, sarala endowment trust, owner of the bus osu 5097 and the appellant, insurer of the said vehicle. the case of applicant, shortly stated, was that on september 12, 1989 he was driver of the said bus. he was getting rs. 1,500/- per month as his wage. when the bus was going from puri to paradeep, it went off the road near naharakanta gada on national highway no. 5and fell into a ditch, 15 feet below the road leyel, due to the said accident the applicant sustained serious injuries.the owner of the vehicle (respondent no. 2) neither filed any written statement nor contested the case.the insurer (appellant) filed two written statements in which it admitted that the applicant was a workman employed by respondent no. 2 and he sustained injuries in the accident which arose out of and in course of his employment. the stand of the opposite party was that the injuries sustained by the applicant were very minor in nature and, therefore, he is not entitled to receive any compensation under the act. 3. the applicant examined himself and dr. subodh patnaik, who treated him after the accident, as his witness and filed certain documents including a medical certificate/ disability certificate, exh. 5. no evidence was adduced on behalf of the insurer.4. on assessment of the ex parte evidence led by the parties the commissioned held that the applicant has lost his earning capacity to the extent of 45 per cent which is permanent in nature. taking the age of the applicant as 28 years and the wage earned by him as rs. 1,000/- per month, he assessed rs. 47,652.75 as the compensation due to the applicant. holding that the ill fated vehicle was validly insured with the appellant on the date of the accident, the commissioner directed the insurance company to bear the liability for the entire compensation amount.5. from the evidence of the applicant it appears that in the accident he sustained fracture of his right leg (below knee) and fracture of left hand (above elbow joint) and some cut injuries on different parts of his body; he was brought by taxi to the clinic of dr. subodh patnaik, pw 2, at badambadi, cuttack, for treatment; that on the doctor's advice x-ray was taken in a private clinic at ranihat and from the report the fractures of right leg and left hand were confirmed. the applicant has further stated that dr. patnaik plastered his right leg and left hand which remained for about one month and after removing the plaster the doctor advised him to undergo physiotherapy. he has also stated that despite treatment he is unable to walk properly and cannot lift any weight by his left hand. due to the disability he has not been employed since the date of accident. from his cross-examination, it is clear that he has not been examined or treated by any other doctor (other than dr. subodh patnaik). he has stated that he does not take any help from others at the time of bathing; that there is no spot on the fracture points; that he could not say whether the fractures are compound or simple and that he was not kept as an indoor-patient in the clinic. he has denied the suggestion that he has been driving his own bus bearing registration no. osp 107.dr. subodh patnaik in his testimony corroborated the statements of the applicant that he has suffered fracture of tibia and fibula of the right leg and humerus of left arm. from the evidence of the doctor it appears that the plaster was removed on october 28, 1989 and the patient was advised for x-ray and after x-ray, malunion of tibia and fibula was detected, the patient was advised physiotherapy and medicines. the doctor has further stated that on december 15, 1989 the applicant approached him with complaints of swelling and pain in the ankle joint and restricted movement of the left aim. he was advised to consult orthopaedic specialist. dr. m.l. gupta and to undergo physiotherapy. thereafter on several dates the applicant approached dr. subodh patnaik with the complaints of rigidityand stiffness of leg and arm and he was advised physiotherapy. finally the patient approached him on may 17, 1992 for assessment of the disability. after careful physical and clinical examination, he assessed the disability of the applicant at 45 per cent which is of permanent nature. he has further stated that with this disability the applicant cannot walk a long distance and cannot work by his left hand due to pain and restriction of movement of the shoulder joint and that he cannot drive any vehicle without difficulty. in cross examination the doctor has stated, interalia, that he is not an orthopaedic specialist and he has not advised the patient to go to s.c.b. medical college hospital at cuttack, since he felt that he could treat such type of patients. the doctor admits that though he had verified all the prescriptions issued by him previously to the applicant he has not kept any record of such prescriptions. the prescriptions and x-ray plates are not in the case record. he has further stated that even if fractures are united properly there will be disability. he has modified his earlier statement to the effect that there is malunion of tibia and fibula, but there is no malunion of the left humerus and due to ligament damage of the shoulder joint there is restriction of movement of the said joint. exh5 is the disability certificate issued on may 17, 1992 by dr. subodh patnaik. it is stated therein that on radiological examination it was found that the applicant has got fracture of tibia and fibula of the right leg and humerus of left arm; that when the applicant approached the doctor on december 15, 1989 with complaints of swelling and pain in the ankle joint and restricted movement of the left arm he was advised to consult orthopaedic specialist, dr. m.l. gupta. the assessment of disability at 45 per cent has been stated in the certificate.6. the provision for assessment of compensation is made in section 4 of the w.c. act. undisputedly the present case comes under clause (c) of sub-section(1) of section 4 which reads as follows:'4. amount of compensation.-(1) subject to the provisions of this act, the amount of compensation shall be as follows, namely: xxx xxxx (c) where permanent partial disablement results from the injury- (i) in the case of an injury specified in part ii of schedule i, such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury; and (ii) in the case of an injury not specified in schedule i, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury; explanation i. where more injuries than one are caused by the same accident, the amount of compensation payable under this head shall be aggregated but not so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries; explanation ii. in assessing the loss of earning capacity for the purposes of sub-clause (ii), the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in relation to different injuries specified in schedule i;' it is also not disputed that the injuries sustained by the applicant are not included in part i or ii in schedule i of the w.c. act. therefore, the assessment of compensation can only be made on the basis of evidence produced by the applicant regarding the loss of earning capacity. to put it differently, in such a case it will be necessary for the workman to show by leading evidence that as a matter of fact he has suffered loss of earning capacity to a particular extent, then he will be entitled to compensation commensurate with the loss of earning capacity suffered by him. in both types of cases of injury (scheduled and non-scheduled injuries), the basic criterion for determination of amount of compensation is the same, i.e.. the loss of earning capacity but by providing 'deemed loss' of earning capacity as indicated in schedule i to the act, the legislature has fixed the minimum compensation for which the workman is not required to lead further evidence. in cases wherein the workman is in a position to establish that the percentage of the loss of earning capacity suffered by him is in excess of the percentage fixed by the statute he may lead evidence to establish the loss of earning capacity in excess of the percentage fixed by the statute and in such cases he would be in a position to claim the amount of compensation commensurate with the percentage of loss of earning capacity proved by him. therefore, irrespective of the fact as to whether the workman has suffered injuries specified in the schedule or injuries which are not specified in the schedule, the amount of compensation is to be determined on the basis of the loss of earning capacity suffered by the workman.7. in the case at hand there is no question of 'deemed loss' of earning capacity. the only evidence led is that of dr. subodh patnaik and the only document produced is the disability certificate, exh.5. as discussed earlier. dr. subodh patnaik is not an orthopaedic specialist, he has not made any specific statement regarding loss of earning capacity of the applicant. he has merely stated that the disability suffered by him due to the injuries is to the extent of 45 per cent. he has, however, made a statement that the applicant, who is a professional driver, will not be able to drive the vehicle without difficulty. on such evidence the commissioner was not right in law in taking the extent of disability (45 per cent) as the loss of earning capacity. therefore, the judgment is vitiated by illegality. on a fair assessment of the evidence led in the case, i am of the view that it will be apt and proper to fix the loss of earning capacity at 25 per cent. adopting the statutory formula accepted by the commissioner the amount of compensation comes to rs. 26,473.75.8. in the result, the appeal is allowed in part; the judgment of the commissioner is modified to the extent that the applicant is entitled to receive rs. 26,473.75 as compensation instead of rs. 47,652.75. the applicant is also entitled to receive interest at the rate of 6 per cent from the date of filing of application till payment. no costs.