AMARSHI JERAM Vs. HAZRAT AND COMPANY

JUDGEMENT

(1.) Now it was contended by Mr. Vyas that the injuries sustained by the workman amounted to a total permanent disablement and therefore the workman would be entitled to the compensation of Rs. 4900 though not Rs. 5100.00 as claimed by him. It was argued that the medical evidence disclosed that the workman would not be able to do the same work and in the same manner as he used to do before the accident. Reliance was placed on the evidence in particular of Dr. Popat. Mr. Vyas also contended that the agreement Ex. 5 was void in view of the provisions of section 17 of the Act (The Workmens Compensation Act) as according to the evidence of the workman it was obtained from him under pressure for the purpose of reducing the liability of the employers. He also argued that no reliance could be placed upon that agreement as it was not registered in accordance with the provisions of section 28 and the rules made under the Act. Mr. Vyas submitted that the learned Commissioner was in error when in paras 7 and 8 of his order he held that he was entitled to direct its registration on a mere production of the agreeMent by the employers in the course of the hearing before him.

(2.) Mr. Modi on the other hand argued that even according to the evidence of Dr. Popat there would have been no defect or disablement if the workman had taken proper treatment. He argued that instead of going to Dhoraji to the bonesetter the workman ought to have taken treatment at a hospital that though the workman went to the Irwin Hospital of Jamnagar he did not continue the treatment there and therefore the defect or disablement in his left leg was solely due to want of care on his part and failure to take proper treatment for which there could be no liability on the employer. Mr. Modi has however not been able to point out to me any provisions of the Act which would indicate that if the workman were to fail to take proper treatment the employer could avoid his liability to pay compensation. In fact section 11 of the Act would appear to be a pointer to the contrary. It must be remembered that the object of the Act is to provide compensation for injuries resulting from an accident arising in the course of employment. As soon as therefore there is an accident in consequence of which a workman suffers injuries the employer becomes liable to pay compensation. Section 11 first provides that where a workman has given notice of an accident he shall if the employer offers to have him examined free of charge by a qualified medical practitioner submit himself for such examination and any workman who is in receipt of a half-monthly payment under the Act shall if so required submit himself for such examination from time to time. Sub-section (2) then provides that if a workman on being required to do so by the employer or by the Commissioner at any time refuses to submit himself for examination by a qualified medical practitioner or in any way obstructs the same his right to compensation shall be suspended during the continuance of such refusal or obstruction unless in the case of refusal he was prevented by any sufficient cause from submitting himself. Sub-section (3) provides that if a workman before the expiry of the period within which he is liable under sub-section (1) to be required to submit himself for medical examination voluntarily leaves without having been so examined the vicinity of the place in which he was so employed his right to compensation shall be suspended until he returns and offers himself for such examination. Sub-section (b) of section 11 provides that where an injured workman has refused to be attended by a qualified medical practitioner whose services have been offered to him by the employer free of charge or having accepted such offer has deliberately disregarded the instructions of such medical practitioner then if it is proved that the workman has not thereafter been regularly attended by a qualified medical practitioner or having been so attended has deliberately failed to follow his instructions and that such refusal disregard or failure was unreasonable in the circumstances of the case and that the injury has been aggravated thereby the injury and the resulting disablement shall be deemed to be of the same nature and duration as they might reasonably have been expected to be if the workman had been regularly attended by a qualified medical practitioner whose instructions he had followed and compensation if any shall be payable accordingly. It seems that section 11 of the Act was intended to provide a remedy in certain cases against payment of compensation and a claim for excessive compensation. It is clear from the section that an employer can avoid liability for compensation on his providing the workman with the services of a medical practitioner and if such services are refused or instructions of such medical practitioner are disregarded by the workman in an unreasonable manner the injury and the resulting disablement are to be deemed to be of the same nature and duration as they might reasonably have been expected to be if the workman had been regularly attended by a qualified medical practitioner and whose instructions the workman had followed. But it is also clear from this section that the onus is upon the employer to prove that he had offered services of a medical practitioner free of charge to the workman and that inspite of such offer the workman had refused to take treatment of such medical practitioner or that such treatment was taken but the workman had disregarded the instructions of such a medical practitioner. As I have already pointed out no evidence was led on behalf of the employers.

(3.) It is true that the workman was first taken to Dhoraji to a bone setter instead of to a hospital. But there was no evidence to show that it was the workman who had insisted on being taken to Dhoraji instead of to a hospital. It is also true that workman went to the Irwin Hospital at Jamnagar from where he was discharged after four days and he did not go to the hospital again. But that would not mean and there was no evidence to the effect that the workman discontinued going to the hospital inspite of medical instructions to the contrary. Thus there was no evidence either of a refusal to take medical treatment though such treatment was offered to him by the employers free of charge or of disregard of any medical instructions. In these circumstances it is somewhat difficult to appreciate as to how Mr. Modi would be entitled to claim the benefit of section 11.