Decided on November 13,2018

Oriental Insruance Co. Ltd. Appellant
Bimal Pathar Respondents


KALYAN RAI SURANA,J. - (1.) Heard Mr. S. Dutta, learned Senior counsel assisted by Mrs. M. Choudhury, learned counsel for the appellant. None appears on call for the respondents No. 1 and 2 although the names of the learned counsel for the respondents are reflected in the cause list.
(2.) This appeal under Section 30 of the Workmen's Compensation Act, 1923 has been filed against the judgment and award dated 04.09.2008 passed by the learned Commissioner, Workmen's Compensation, Nagaon in W.C. Case No. 94/2003. The appeal has been admitted for hearing on the following substantial question of law by order dated 24.05.2010. (i) Whether daily allowances earned by the Workmen can be constructed to be part of the salary in order to compute he precise amount of compensation? (ii) Whether Doctor can assess the loss of earning capacity of the injured at his whims/guess work?
(3.) The case of the respondent No. 1/claimant is that he was a labourer in a truck bearing registration No. AS-25-B-5870. He was under employment of respondent No. 2. On 01.04.2013, while the said truck was proceeding from Nagaon towards Doboka side for loading sand, at a place called Arjuntal on N.H. 36 at about 4:30 P.M, in order to avoid a scooterist who was coming from opposite side in a zig-zag manner, loss control of the vehicle, which fell down in a road side ditch. As a result of the accident, the respondent No. 1 sustained fracture injuries on his right wrist, injury of the back of the neck and abrasion over the left thigh. The respondent No. 1 was taken to Nagaon for treatment and the police of Nagaon P.S. registered a case vide G.D.E. No. 7 dated 01.04.2003. On receipt of information, the owner of the truck i.e. respondent No. 2 came to the place of occurrence and removed the damaged vehicle and also met him and, as such, claiming that notice u/s 10 of the Workmen's Compensation Act was not required, the respondent No. 1 filed a claim petition seeking a compensation of Rs.1,50,000/- under Section 4(1)(c) of the Workmen's Compensation Act. The present appellant appeared in the case and had filed their written statement. The respondent No. 2, the owner of the vehicle had also filed his written statement, admitting that the respondent No. 1 was his workmen and worked at a daily wages of Rs.100/-. He had disclosed that the vehicle was duly insured with the appellant and the insurance was valid as on the date of the accident.;

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