M/S ORIENTAL INSURANCE CO. LTD. REGIONAL OFFICE AT G.S. ROAD, ULUBARI, GUWAHATI Vs. SRI PRAFULLA KONWAR S/O SRI KAMESWAR KONWAR RESIDENT OF VILLAGE

JUDGEMENT

(1.) With regard to motor accident held on 9.11.2005, the driver and the handyman of a mini bus bearing registration No.ASG-5244 (407) filed two separate claim petitions before the WC Commissioner at Nagaon. The claim petition filed by handyman was numbered as NWC Case No. 17 of 2006 whereas the same instituted by the driver was numbered as NWC Case No. 12 of 2006 by the WC Commissioner at Nagaon. Although two separate judgments have been passed in both the NWC cases but identical substantial questions of law were framed by this court at the time of admission of both the appeals. The fact involved in both the cases are same as they have arisen from the same accident involving the same vehicle. Accordingly, both the appeals are taken up together for disposal.

(2.) The mini bus having registration No. ASG-5244 belongs to one Thaneswar Borah of Nagaon who is stated to have engaged Prafulla Konwar as his handyman and one Dipak Bordoloi as his driver with respect to the vehicle. The vehicle was duly insured with the Oriental Insurance Co. Ltd., Nagaon branch vide policy No. 321100/2005/1698. The handyman, Prafulla Konwar was paid monthly salary of Rs.3500.00 per month in addition to daily allowance of Rs.20.00. Dipak Bordoloi , the driver was paid monthly salary of Rs.4000.00 per month in addition to daily allowance of Rs.20.00. On 9.11.2005, when the vehicle was moving from Roha to Nagaon with passengers, it was knocked down from behind by another moving vehicle at Bebejia and thereby both the driver and the handyman sustained injuries. The handyman stated that he sustained fracture in both the melleolus of left ankle whereas the tibia and fibula on the right leg of the driver Dipak Bordoloi are said to have been fractured. According to the handyman, he was initially taken to Nagaon Civil Hospital where his leg was plastered. He thereafter obtained treatment from one Dr. Dipesh Das. The owner on being notified appeared and submitted written statement admitting basic facts as to engagement and payment of salary to the workman and also as to happening of the accident. The owner pointed out that vehicle having been valid insurance under the opposite party No.2, he was not liable to make payment of compensation whatsoever. The insurance company though filed written statement and contested the claim but did not examine any witness. However, the opposite party No. 2 insurance company cross examined the witness at length. In course of trial, claimant Praffulla adduced several documents on record which includes accident information report as Exhibit-1, X-ray report as Exhibit-2, injury report as Exhibit-3, Exhibits -4 to 10 are prescriptions, Notice under Sec. 10 as Exhibit-11 and x-ray plate as M. Exhibit-1. He was duly cross examined by the insurance company.

(3.) Dipesh Das was examined as PW-2 in both the cases. He stated in NWC Case No.17 of 2006 that he examined the victim on 9.11.2006 as well as on 13.11.2006. He advised for x-ray report which he examined later on. According to him, the handyman cannot discharge his normal duty with such injuries. He opined that the handyman suffered physically disability to the extent of 30% resulting in 35% of loss of earning capacity. He proved medical certificate Exhibit-3 to have been issued by him.