Decided on November 06,2018

Gopal Shill Respondents


KALYAN RAI SURANA,J. - (1.) Heard Mrs. M. Choudhury, learned counsel for the appellant. None appears on call for the respondents although notice was served on them.
(2.) This appeal under Section 30 of the Workmen's Compensation Act, 1923 has been filed against the judgment and award dated 07.06.2007 passed by the learned Commissioner, Workmen's Compensation, Golaghat in W.C. Case No. 15/2005. The appeal has been admitted for hearing on the following substantial question of law by order dated 10.10.2007. (i) Whether the Commissioner can assess the loss of earning capacity from his own? (ii) Whether interest on default can be made payable from the date of accident? (iii) Whether insurance company is liable to pay penalty under Workmen's Compensation Act, 1923?
(3.) The brief facts of the case is that the respondent No. 1 is the driver of truck bearing registration No. AS-25-A-2997. On 24.06.2005 at about 10.30 PM while coming from Guwahati, at Lotabari on NH-37, an offending vehicle bearing registration No. AS-01-M-8605 came in a very high speed and dashed against his vehicle with full force. As a result of the accident, both the vehicles got damaged and the respondent No. 1 suffered the following injuries, (i) comminuted fracture of left femur shaft, (ii) chest injury and other injuries. He was given treatment at K.K. Civil Hospital, Golaghat from 25.06.2005 to 27.06.2005 as indoor patient. Thereafter, he was admitted at Assam Medical College Hospital, Dibrugarh on 28.06.2005 where he had undergone treatment till 01.07.2005. On 01.07.2005, he was admitted at a private Hospital at Dibrugarh and discharged on 09.07.2005. The fracture was set by fixing a 'K' Nail on 06.07.2005. He was discharged after 9 days as indoor patient with an advice slip to do ankle exercise, to keep the limb in Thomas splint for one month. His leg had been shortened because of resultant reduction of bones and he suffered pain all the time. The respondent No. 1 had projected that as a result of the accident, he had become permanently disabled and lost his earning capacity by 100%. As he did not receive any compensation from his employer, he had filed a case for compensation before the learned Commissioner, Workmen's Compensation. The respondent No. 1 i.e. the owner of the vehicle and the respondent No. 2 i.e. the insurer/appellant herein had contested the case by filing their respective written statement. The respondent No. 2, who is the owner of the vehicle had admitted in his written statement that the respondent No. 1 was the driver of the vehicle and at the time of the accident, he was on duty. He had stated that the respondent No. 1 had a valid driving licence and he was authorized to drive heavy motor vehicle. It was also admitted that he monthly income/salary of the respondent No. 1 was Rs.4,000/- per month excluding the daily allowance and the truck was playing with valid documents and insurance. In the written statement, the appellant took the usual plea and denied that the respondent No.1 had become permanently disabled.;

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