B.P.KATAKEY,J. - (1.) THESE appeals under Section 30 of the Workmen's Compensation Act, 1926 (in short, the Act) by the Insurance Company are directed against the orders passed by the learned Commissioner, WC, Guwahati awarding compensation to the workmen-respondents- under Section 4 (1) (c) (ii) of the Act, for the personal injuries caused to them by an accident arising out of and in course of their employment.
(2.) ALL these three appeals were admitted for hearing vide order dated 5. 1. 2007 on the identical substantial questions of law: (i) Whether the injuries sustained by the claimant not being one as specified in Schedule-I Part-II of the Act and there being no evidence and finding at all to show that the alleged disablement of the claimant reduces his earning capacity in every employment which he was capable of undertaking at the time of accident, the learned Commissioner was justified in granting compensation in accordance with the provisions of Section 4 (1) (c) of the Act? (ii) Whether the medical practitioner having assessed the loss of earning capacity of the claimant at 30% without due regard to the percentage of loss of earning capacity in relation to the injuries specified in Scheduled-I of the Act, the learned Commissioner was justified in acting upon the said purported assessment and granting compensation under Section 4 (1) (c) of the Act? As all the three appeals involve the identical substantial questions of law, they are taken up for hearing and disposal together, as agreed to by the learned counsel for the parties.
(3.) THE relevant facts for the purpose of disposal of the present appeals may be noticed as under: (A) MFA No. 2/2007. (I) The respondent Bimal Nath, who was the driver of the vehicle No. AS-01/p-3237 (Maruti Van) belonging to Sri Kamdev Das (opposite party No. 1 before the learned Commissioner, WC), filed an application seeking compensation under the provisions of the Act, which was registered as WC Case No. 32/05, against the owner of the vehicle as well as the Insurance Company (appellant herein) contending inter alia that on 25. 11. 04 while he was driving the said vehicle from Pathshala towards Bhabanipur, a truck collided with the said vehicle and as a result of which, he sustained injuries in the right elbow joint, legs as well as on other parts of his body, which in turn, incapacitated him from driving the motor vehicle. It has further been contended in the said application that he was 22 years old at the time of accident and was drawing Rs. 4,000/- as wages. The owner of the vehicle upon receipt of the notice entered appearance and filed the written statement admitting the employment of the workman, the accident arising out of and in course of his employment, the injuries sustained by him and also his monthly wages. The owner of the vehicle has further contended that since a valid policy of insurance has been issued by the appellant, the award, if any, has to be satisfied by it. The appellant herein, who has been impleaded as opposite party No. 2, in the written statement denied all the averments made by the workman in the claim application, including the nature and extent of injuries alleged to have been suffered by him. (I) The respondent Bimal Nath, who was the driver of the vehicle No. AS-01/p-3237 (Maruti Van) belonging to Sri Kamdev Das (opposite party No. 1 before the learned Commissioner, WC), filed an application seeking compensation under the provisions of the Act, which was registered as WC Case No. 32/05, against the owner of the vehicle as well as the Insurance Company (appellant herein) contending inter alia that on 25. 11. 04 while he was driving the said vehicle from Pathshala towards Bhabanipur, a truck collided with the said vehicle and as a result of which, he sustained injuries in the right elbow joint, legs as well as on other parts of his body, which in turn, incapacitated him from driving the motor vehicle. It has further been contended in the said application that he was 22 years old at the time of accident and was drawing Rs. 4,000/- as wages. The owner of the vehicle upon receipt of the notice entered appearance and filed the written statement admitting the employment of the workman, the accident arising out of and in course of his employment, the injuries sustained by him and also his monthly wages. The owner of the vehicle has further contended that since a valid policy of insurance has been issued by the appellant, the award, if any, has to be satisfied by it. The appellant herein, who has been impleaded as opposite party No. 2, in the written statement denied all the averments made by the workman in the claim application, including the nature and extent of injuries alleged to have been suffered by him. (II) Questioning the nature of injuries stated to have been suffered by the workman, an application was filed by the Insurance Company praying for directing the claimant to submit himself for examination by a qualified medical practitioner, which was though allowed by the learned Commissioner and the workman was willing to get himself examined again, the appellant Insurance Company did not comply with the direction contained in the order dated 21. 3. 06 passed by the learned Commissioner and hence, the workman was not medically examined afresh by a Govt. doctor. (III) The workman in support of the claim examined two witnesses, namely himself as well as the doctor and exhibited a number of documents including the certificate issued by the doctor relating to the injuries and his loss of earning capacity. Neither the owner nor the Insurance Company adduced any evidence. The Insurance Company, however, cross-examined the witnesses examined by the workman. The learned Tribunal upon appreciation of the evidences on record passed the order dated 11. 9. 06 awarding a sum of Rs. 1,59,386/- as compensation under Section 4 (1) (c) (ii) of the Act assessing his loss of earning capacity at 30% and directed the Insurance Company to deposit the amount of compensation within 30 days, there being no dispute relating to the contract of insurance between the owner of the vehicle and the Insurance Company. (B) MFA No. 3/2007. (I) The respondent workman, Gokul Pathak filed the application seeking compensation under the provisions of the Act, which has been registered as WC Case No. 33/05, against the owner as well as the Insurance Company contending inter alia that while he was driving the vehicle bearing Registration No. As-15/3276 (TATA SUMO) belonging to the opposite party No. 1 before the learned Commissioner, on 10. 5. 04, from Guwahati to Barpeta, the vehicle met with an accident at Kakertal Bamunbari and as a result of which he sustained injuries on his right fore arm and on the forehead, which incapacitated him from driving the motor vehicle. It has further been contended that he was aged about 22 years and was paid monthly wages of Rs. 4,000/ -. The owner of the vehicle in the said proceeding before the learned Tribunal also entered appearance and filed the written statement admitting the factum of accident as well as the injuries suffered by the workman arising out of and in course of his employment and also his age and the monthly wages. The Insurance Company has filed almost identical written statement as has been filed in WC No. 32/05, denying everything including the nature of injuries suffered. (II) In the said proceeding also, though the prayer of the Insurance Company to get the workman examined by a doctor afresh was allowed by the learned Commissioner and the workman submitted himself for medical examination, the Insurance Company did not comply with such direction, for which he could not be medically examined afresh. The workman in the said proceeding also examined himself as well as the doctor in support of the claim and exhibited a number of documents including the certificate of disability reflecting the nature of injuries sustained as well as loss of earning capacity. The learned Tribunal upon appreciation of the evidences on record awarded a sum of Rs. 1,49,745/- under Section 4 (1) (c) (ii) with interest, by holding that he has suffered 30% loss of earning capacity for the injuries sustained by him and directed the Insurance Company to satisfy the award, in view of the contract of insurance between the owner and the Insurance Company. The learned Commissioner further directed that in the event the said amount is not deposited within 30 days, the same shall carry interest @ 9% per annum from the date of accident till the date of deposit. (C) MFA No. 4/2007 (I) Sri Bhadreswar Kalita, the respondent-workman, filed the application praying for awarding compensation under the provisions of the Act, which has been registered as WC Case No. 34/05, before the learned Commissioner, WC at Guwahati against Sri Paresh Gayari and the present appellant Insurance Company, being the owner and the insurer of the vehicle respectively, contending inter alia that on 7. 11. 04 while he was driving the vehicle bearing Registration No. AS-15/6464 (Bus) belong to Sri Paresh Gayari from Barpeta towards Dhubri, the said vehicle met with an accident at Ararghar under Chapor P. S. when a truck dashed against the said Bus, as a result of which he sustained injury on his right leg and the right hand and became incapacitated to drive the motor vehicle as he lost the strength on his right hand. The workman in the application claimed his age to be of 35 years at the relevant point of time and the monthly wages as Rs. 4,000/ -. In the said proceeding also, the owner of the vehicle entered appearance and filed the written statement admitting the factum of employment, accident arising out of and in course of the employment, age, monthly wages as well as the nature of injuries sustained by the workman and further contending that the vehicle in question has been insured by the appellant Insurance Company and, therefore, any amount of compensation payable has to be paid by the said Insurance Company under the contract of insurance. Like in the other proceedings, being WC Case Nos. 32 and 33 of 2005, the Insurance Company in the written statement denied all the averments made by the claimant in the claim application including the nature of injuries sustained. (II) In the said proceeding also, though the prayer for fresh medical examination was allowed by the learned Tribunal, on the basis of the application filed by the appellant Insurance Company, the claimant was not medically examined afresh in spite of his submission for such examination, because of the failure of the Insurance Company to comply with such direction issued by the learned Commissioner. The claimant in the said proceeding also, examined himself as well as the doctor and exhibited a number of documents including the injury report and also the certificate of loss of earning capacity as assessed by the doctor. The learned Tribunal upon appreciation of the evidences on record awarded a sum of Rs. 1,40,700/- as compensation under Section 4 (1) (c) (ii) by assessing the loss of earning capacity of the claimant, because of the injuries sustained by him, at 35% and directed the Insurance Company to satisfy the award within 30 days, in view of the undisputed contract of insurance, with a further direction that in default, the said amount shall carry interest @ 9% per annum from the date of accident till the date of deposit. ;