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2011 DAILYLAW 781 (GAU)

United India Insurance Co. Ltd. v. Ralli Tanti

2011-09-20

I.A.ANSARI

body2011
JUDGMENT I.A. Ansari, J. 1. Heard Mr. S.K. Singh, learned counsel for the insurer-appellant, and Mr. S.C. Biswas, learned counsel, appearing on behalf of the workman-respondent No. 1. Also heard Ms. D.P. Hazarika, learned counsel for employer-respondent No. 2. This is an appeal against the award, dated 24.10.2005 passed by the learned Commissioner, Workmen's Compensation, Zone-III, Tezpur, in WC Case No. 8/2004, determining Rs. 1,57,428/- as compensation payable to the workman. This appeal has been heard on the following two substantial questions of law : 1. Whether notice of accident sent under Section 88 of the Factories Act, 1948, informing therein about a fatal accident with other necessary details by the employers to the W.C. Commissioner can be ignored? 2. Whether learned Commissioner can merely on the basis of appearance of a worker determine his age for the purpose of choosing the relevant factor under the Act ignoring the admission of the claimant as to the recording of his age in the official record altogether? 2. The material facts, giving rise to this appeal, are as under : 3. The respondent No. 1 herein was a workman, employed as a factory worker, at Sessional Tea Estate, in the District of Sonitpur, Assam, under respondent No. 1 herein. In the midnight of 9.10.2003, while the respondent No. 1 was putting green leaves into the leaf-crushing machine from the top, his right leg slipped into and moved inside the inlet of rotor-vane of the machine and, as a result of this accident, his right leg got crushed. He was, immediately, taken, in seriously injured condition, to the garden hospital for treatment and, later on, shifted to the Civil Hospital, at Tezpur. On 10.10.2003, he was brought to the Gauhati Medical College & Hospital (in short, 'GMCH'), Guwahati, where his right leg had to be amputated. The respondent No. 1 herein, thereafter, had to remain in the GMCH, as an indoor patient, from 10.10.2003 to 22.11.2003. Even after his discharge from the GMCH, he was advised by the doctors to take complete bed rest for three months. 4. The workman (respondent No. 1 herein) accordingly applied for compensation on the ground that he had been permanently disabled as a result of the accident and rendered unable to earn his livelihood. Even after his discharge from the GMCH, he was advised by the doctors to take complete bed rest for three months. 4. The workman (respondent No. 1 herein) accordingly applied for compensation on the ground that he had been permanently disabled as a result of the accident and rendered unable to earn his livelihood. The respondent No. 2, as employer, did not file any written statement and did not challenge the correctness of the age of the workman, which was mentioned by the workman, in his claim application, as 42 years. 5. At the time of adducing evidence, it was the workman, who had adduced evidence by examining two witnesses. No evidence was adduced by the employer-respondent No. 2. Since the age of the workman, as mentioned in his application seeking compensation, had not been disputed by the employer-respondent No. 2 there was really no dispute with regard to the correctness of the age, which had been mentioned by the workman as 42 years. The accident and the extent of injury, caused to the workman, were also not disputed by the employer-respondent No. 2. 6. Considering the fact that the insurer-appellant had disputed, at the time of hearing, the correctness of the age by mentioning the workman's age as 52 years 7 months, which was as per the notice, given under Section 88 of the Factories Act, 1948, read with Rule 95 of the Assam Factories Rules, 2005, the learned Commissioner, Workmen's Compensation Act, while passing the award, on 24.10.2005, pointed out that the employer had not produced the Employment Register, which contained the age of the employees; rather, the referral form, dated 9.10.2003, which had been filled up by the employer, while sending the workman-respondent No. 1 for medical treatment, mentioned the workman's age as 42 years at the relevant point of time. The discharge certificate, issued by the authorities in the GMCH, also mentioned the patient's (workman's) age as 42 years. The learned Commissioner also took notice of the fact that from the physical appearance of the workman, he looked a person below the age of 45 years and it is this observation of the learned Commissioner, which has been seriously challenged in this appeal. 7. The learned Commissioner also took notice of the fact that from the physical appearance of the workman, he looked a person below the age of 45 years and it is this observation of the learned Commissioner, which has been seriously challenged in this appeal. 7. Considering the questions, which have been raised in the present appeal, it needs to be noted, as already indicated above, that the workman, while applying for compensation, clearly mentioned his age as 42 years. This assertion was not disputed by the employer, mentioned the age of the workman as 52 years 7 months, could not have been accepted to be true by the learned Commissioner without any dispute having been raised with regard to the correctness of the age, which stood mentioned by the workman in his claim application. This apart, the referral form of the Sessa Tea Estate as well as the discharge certificate, issued by the GMCH, both mentioned, as indicated above, the age of the workman as 42 years. Even if, therefore, the observations, made by the learned Commissioner, that the workman looked like a person below 45 years of age, are kept excluded from the purview of consideration by this Court, it is not possible to rely implicitly on the record maintained by the employer, particularly, when it was not even suggested to the workman by the employer or by the insurer, while cross-examining the workman, that the age, mentioned in the records of the employer, was the correct age of the workman. 8. In the circumstances mentioned above, this Court does not find that the learned Commissioner committed any error in arriving at the conclusion that the workman's age, at the time of the accident was 42 years. On this basis, when the compensation is calculated, it comes out to be the amount, which has been determined by the learned Commissioner, i.e., to the tune of Rs. 1,57,428/-. This amount has been directed to be paid within a period of 60 days with further direction to pay simple interest @ 9% per annum, on the said sum of compensation, with effect from 9.10.2003 till realization of the compensation amount, The Court does not find any infirmity, legal or factual, in the findings, arrived at by the learned Commissioner, and the quantum of compensation awarded by him. 9. 9. In the result and for the foregoing reasons, this appeal fails and the same shall accordingly stand dismissed with cost of Rs. 500/-. Let the LCR be sent back forth with.