NEW INDIA ASSURANCE CO. LTD. Vs. NURUL ALI

JUDGEMENT

(1.) This is an appeal under Sec. 30 of the Workmen's Compensation Act, 1923 challenging the Judgment and award dated 13.11.2006 passed by the W.C. Commissioner, Kamrup in WC Case No.191 of 2003 thereby directing the insurance company to make payment of RS. 86,478.00 to the claimants along with interest @ 9% per annum on the entire amount w.e.f. from the date of accident till deposit.

(2.) The respondent No.1 as claimant filed a claim petition before the W.C.Commissioner stating that he was working as handyman under the opposite party No. 2 Nur Navin Ali with respect to vehicle No. AS-01/P- --6486 on 27.5.2003. The vehicle met with an accident and the claimant received physical injury owing to the same . The accident had taken placed at 11.30 am at Dadra O.P. under Hajo P.S. According to the petitioner, he sustained fracture on right humerus including injury over occipital region and because of this, he has been permanently disabled and cannot pursue his occupation. He has become devoid of any income and that is why a prayer has been made for payment of adequate compensation to him. The claimant stated that he was being paid RS.2500.00 per month as monthly salary.

(3.) On receipt of notice, opposite party No.1 and owner of the vehicle appeared and submitted written statement stating that the claimant was being paid RS. 2500.00 per month as salary. He disclosed that the vehicle in question was covered under insurance of New India Assurance Co. Ltd at the relevant time. The insurance company being opposite party No.2 submitted written statement denying the claim in entirety. Upon such rival contention, the learned tribunal allowed the parties to lead their respective evidence . Claimant examined himself as PW-1 and Dr. S.C. Sharma as PW-2 . The doctor's prescription, x-ray report, medical certificate and police report were exhibited as Exhibits-1, 2, 3, 4 and 5 respectively. The claimant disclosed that in course of employment, he used to get RS. 2500.00 per month as salary. He was duly cross examined by the insurance company when he stated that he was paid daily allowance of RS. 75.00 and salary of RS. 250.00 per month but he did not submit the salary certificate. However, owner was not examined who had admitted that the monthly salary of the claimant was RS. 2500.00 . Dr. SC Sharma on being examined as PW-2 proved medical certificate and claimed that the loss of earning capacity of the claimant was reduced by 35 % and it was permanent as the claimant had suffered fracture injury on his right humerous. Considering this part of the evidence, the learned W.C.Commissioner accepted the proposition that the workman was partially and permanently disabled because of the accident referred to above. He did not accept the averments of the claimant in the regard to monthly income. Taking into account the provision of Minimum Wages Act, he presumed that monthly salary of the claimant must be RS. 1980.00 and accordingly made the calculation of compensation under Sec. 4(I)(ii) of the Act of the 1923 W.C.Act. This judgment has been challenged by the insurance company before this court. This court while admitting the appeal on 5.10.2007 framed the following three substantial question of law: