Nishitendu Chaudhury, J.@mdashIn this appeal under Section 30 of the Workmen''s Compensation Act, 1923 (now named as Employees'' Compensation Act, 1923 and herein after referred to as ''the Act'') the Insurance Company has challenged the judgment and award dated 16.11.2006 passed by the Workmen''s Compensation Commissioner, Dhubri in W.C. Case No. 6 of 2004 thereby, directing the Insurance Company to make payment of Rs. 2,67,995/- in favour of the workman along with interest.
2. One Md. Kurban Ali lodged a claim before the learned W.C. Commissioner at Dhubri stating that he being a driver under one Bharat Kalita with respect to vehicle No. AS-14-A-2373 (Maruti Van) was driving the vehicle from Ananda Bazar side towards Barpeta Road when he met with an accident at about 6 P.M. and sustained grievous injury on his left eye. He was taken to Barpeta Road PHC immediately and was also recommended for treatment by an eye specialist. Subsequently, he lost his vision of his left eye for which he had to give up the occupation of driving and so, claimed compensation. According to him, he earned Rs. 4,200/- per month including all allowance and that he was 25 years of age at the time of accident. The claimant himself disclosed that the vehicle was under insurance cover of United India Insurance Company Limited under Nalbari Branch vide policy No. 130201/31/02/01425 which was valid at the time of the accident.
3. On being summoned the opposite party No. 1, owner of the vehicle, appeared and submitted written statement, whereby he admitted that the claimant was engaged by him as a driver of the vehicle and that he sustained injury. The salary of the workman was also specifically admitted by the owner in his written statement. According to the opposite party No. 1 the vehicle was duly insured by the respondents No. 2 & 3 and so, they were liable to make payment of compensation.
4. The opposite parties No. 2 & 3, the Insurance Company, submitted written statement denying responsibilities on various grounds including non service of notice under Section 10 of the Act.
5. Upon such rival contentions of the parties, the learned W.C. Commissioner framed four issues and asked the parties to prove their respective case. The four issues are quoted below:
"(1) Is there any cause of action for the claim petition?
(2) Whether the claim petition is maintainable in its present form
(3) Whether the opposite parties are liable to pay compensation as claimed b the claimant/petitioner?
(4) If yes, what relief is the claimant petitioner entitled to?"
6. The claimant examined himself as well as one Dr. J. Das to prove his injuries. The owner Bharat Kalita appeared and examined himself while the Insurance Company examined one witness and produced the policy document on record. Upon considering all these materials on record, the learned W.C. Commissioner arrived at the finding that the claimant was a driver with respect to vehicle No. AS-14-A-2373 belonging to opposite party No. 1, owner and that it met with an accident leading to loss of left eye of the claimant. The learned W.C. Commissioner was also of the view that the vehicle was originally numbered as NL-05/5333 which was wrongly mentioned as NL-01/5333 in the policy document and that this vehicle was renumbered as AS-14-A-2373. Accepting the registration certificate of the vehicle as a proof for change of number of the vehicle, the learned W.C. Commissioner arrived at the finding that the vehicle was under valid Insurance of the opposite parties No. 2 & 3 and since, it was a scheduled injury, the workman lost 40% of his earning capacity and accordingly, accepting his age as 25 the compensation was assessed at Rs. 2,08,233/-. Along with this amount interest @ 9% per annum was also added and thus, the final awarded amount was calculated to Rs. 2,67,995/- and the learned W.C. Commissioner directed the Insurance Company to make payment of the amount to the claimant. This judgment has been brought under challenge in the present appeal.
7. This Court while admitting the appeal on 26.02.2007 framed following five substantial questions of law:
"(1) For that the substantial question of law arises as to whether the learned Commissioner can assess the loss of earning capacity in absence of any certificate regarding loss of earning capacity issued by a qualified medical practitioner as required under the Workmen''s Compensation Act.
(2) For that the substantial question of law arises as to whether the learned Commissioner below erred in law in taking into account the allowances received by the respondent No. 1/claimant from the employer while as ascertaining the wages of the claimant.
(3) For that the substantial question of law arises as to whether the learned Commissioner can assess and/or take into account disability percentage in absence of certificate of disability issued by the competent authority.
(4) For that the substantial question of law arises as to whether the learned Commissioner below committed illegality in ignoring the vital discrepancy of the registration number of the vehicle in question as it was recorded in the certificate of insurance and that which was recorded in its registration certificate. The registration number in both being different, the learned Commissioner could not have held that the said vehicle was insured with the appellant.
(5) For that the substantial question of law arises as to whether the learned Commissioner below committed error in accepting the disability percentage as 40% when the same was not assessed by a qualified medical practitioner/specialist/Board."
8. Even after service of notice the respondents have not appeared and so, the matter was taken ex parte.
9. I have heard Ms. R.D. Mozumdar, learned counsel for the appellant and perused the records including the deposition of the witnesses and the documents adduced by them.
10. Upon perusal of the substantial question of law at Serial No. 1, 3 & 5 above, it would appear that all these three substantial questions of law hinge on the basic question that the qualified medical practitioner did not assess the loss of earning capacity or physical disability of the workman. But, since it is a scheduled injury under Entry No. 25 of part No. II to the Schedule of the Act, assessment of the loss of earning capacity under Section 4(1)(c)(ii) of the Act would not apply in view of the fact that the loss of earning capacity has been laid down by the statute itself. Entry No. 25 of the Part-II to the schedule shows that loss of one eye amount to 40% loss of earning capacity and so, under such circumstances the substantial questions No. 1, 3 & 5 would not arise. These substantial questions of law, therefore, do not require any adjudication.
11. The substantial question No. 2 on law was framed by this Court on 26.02.2007 in regard to consideration of daily allowance as a part of monthly wage for a workman under the Act. This question has already been decided by the Hon''ble Supreme Court in the case of
12. Under such circumstances the only point to be decided is the question No. 4 framed by his Court at the time of admission of the appeal. Ms. R.D. Mozumdar, learned counsel for the appellant argues that the Insurance Company has all along been disputing its liability to indemnify the owner in respect to vehicle No. AS-14-A-2373. Producing the insurance certificate and the policy at the time of the deposition the witness of insurance company has shown that this vehicle was never insured under the Insurance Company. The insurance was with respect to vehicle No. NL-05/5333. According to Ms. R.D. Mozumdar the owner of the vehicle merely produced a photo copy of the registration certificate to show that vehicle No. NL-05/5333 was re-numbered as AS-14-A-2373. In the absence of original registration certificate the same could not be admissible in evidence and so, the learned W.C. Commissioner committed error in relying on such document. The question as to whether the vehicle involved in the accident was really insured by the Insurance Company being the basic question and the registration certificate not having been exhibited in original, the impugned judgment and award is liable to be set aside, Ms. R. Mozumdar argued.
13. I have perused the exhibits adduced by the parties. The owner of the vehicle examined himself on oath and in course of his deposition he not only produced and exhibited a photocopy of the registration certificate but also brought on record the some letters to show that he submitted application before the Insurance Company for making correction of the vehicle number in the policy document both before and after the change of the vehicle number. Initially, the vehicle was shown as NL-01/5333 in the policy document and so, he filed an application before the Insurance Company to make correction of the vehicle number as NL-05/5333. Subsequently, when the vehicle was re-registered with District Transport Officer, Nalbari, he filed another application before the Insurance Company for recording the change of vehicle number but the Insurance Company did not take any action in regard thereto. It appears that the registration certificate was exhibited without any objection. So, manner of admission of the document at this stage cannot be questioned. The registration certificate is on record. It contains a recital to the effect that the vehicle was originally numbered as NL-05/5333 and on migration to Assam it was numbered as AS-14-A-2373. The registration certificate contains the chasis number and engine number of the vehicle which coincide with the chasis number and engine number mentioned in the particulars of the policy. This coupled with the fact that the owner of the vehicle claims to have submitted application before the authority for correction in the policy document, it is sufficient to hold that the very vehicle of the owner which was insured with the appellant herein was subsequently renumbered as AS-14-A-2373 which admittedly was involved in the accident in question. The finding of fact arrived at by the learned W.C. Commissioner cannot be said to be perverse and so, the sole surviving substantial question No. 4 framed by this Court at the time of admission has to be decided in favour of the claimant and against the appellant. Moreover, the appellant not having taken necessary steps during the course of trial for bringing the records from the office of the District Transport Officer, Nalbari for the purpose of contesting the claim of the vehicle owner, it cannot be heard at the appellate stage to say that the vehicle was never insured. It appears from order dated 21.02.2007 passed by the learned W.C. Commissioner that the whole of the awarded amount was deposited by the Insurance Company with the jurisdictional W.C. Commissioner and the same has already been released to the workman on the same date. That being the position really nothing survives in this appeal. Considering, the entirety of the circumstances referred to above, this appeal is devoid of any merit and it is accordingly dismissed.
14. Send down the records.
15. No order as to costs.
