IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH) M.F. A. NO. 90/2005

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1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH) M.F. A. NO. 90/2005 United India Insurance Company Ltd.. Sri Shital Das -Vs- Petitioner Respondent For the petitioner: For the respondent: Mrs. S. Roy, Adv. None. BEFORE HON BLE MR. JUSTICE KALYAN RAI SURANA Date of hearing & Judgment : JUDGMENT & ORDER Heard Mrs. S. Roy, learned counsel for the appellant. None appears for the respondent. 2. This appeal under Section 30 of the Workmens Compensation Act, 1923, now Employees Compensation Act, 1923 (hereinafter referred to as said Act ) is directed against the judgment and award dated passed by the learned Commissioner, Workmens Compensation, Nagaon in W.C. Case No.182/2001 awarding compensation of Rs.79,615/- along with 12% per annum w.e.f MFA No. 90//2005 Page 1 of 5

2 3. The case of the respondent before the learned Commissioner, Employees Compensation, Nagaon was that he was a pillion driver of passenger carrying Bus bearing Registration No.AS-25-A/7695 under the employment of Md. Bhainur Ali of Rangia. On on way from Rangia to Nagaon with passenger on board, the said Bus met with an accident at Sonapur on NH-37 at about 8-00AM. As a result of the accident, he sustained grievous injuries on his shoulder involving clavicle and on his L.S. Spine. The police took him to nearby clinic and thereafter he was treated by one Dr. Durgeswar Bora (M.S.) at his private chamber in Nagaon. The accident was registered at Sonapur Police Station vide Sonapur Out-post GDE No. 602 dated The vehicle was duly insured with the appellant and as his employer did not pay compensation, the respondent No.1 approached the learned Commissioner, Employees Compensation, Nagaon and a case was registered as W.C. Case No.182/ In course of trial, the respondent No.1 examined himself as well as Dr. D. Bora. PW.1/claimant in his cross examination stated that accident when took place the driving licence was having validity till and thereafter he had renewed his licence. He also admitted that before filing the case he did not give any written notice to the owner of the Bus. He also admitted that he did not file any document of taking treatment at medical centre at Sonapur. He also stated that he took treatment at GMCH but those documents were not filed in the case. He also admitted that he took treatment at Nagaon after one day of the accident. Bue he did not file any document relating to admission and discharge certificates of taking treatment at Nagaon. He further admitted that now (i.e. at the time of giving deposition) the fracture at the clavicle is not seen. He also admitted that no document by which he was advised to apply bandage in the fracture injury was filed in the court. He admitted that he did not file any X-ray plate in this case. He further admitted that he did not inform the concerned District Transport Officer that he cannot drive the vehicle. He also stated that he did not file any document regarding the salary earned by him. MFA No. 90//2005 Page 2 of 5

3 5. As per Exht.4, which is the prescription of PW.2 dated , it has been stated that the respondent No.1/claimant was treated at Sonapur PHC he had swelling tenderness and deformity on the right shoulder joint and multiple abrasion over the extremities and tenderness over the lumbo sacral spine and he was advised to done X-ray for both right shoulder and L.S. Spine. As per Exht.2, which is the report of X-ray, fracture was seen in the right clavicle and no other abnormality is seen. It is also reported that lumber spines show scoliotic deformity. However, X-ray plate has not been annexed. As per Exht.3, which is the medical certificate of assessment of physical disability of loss of earning, there is specifically mentioned that the X-ray shown fracture on right clavicle, but instead of the injury at L.S. Spine, the remark is there was tenderness on the L.S. Spine and immediately after that there is a mention at X-ray N.A.D. In medical terminology the full form of N.A.D is no abnormality detected. The Doctor (PW.2) by Exht.3 has certified that on physical examination, he found that respondent No.1 had frozen shoulder of right should joint. 6. PW.2, the Doctor, in his cross examination admitted that while issuing Exht.3, he did not follow the Schedule-1 given in the said Act. He further admitted in cross that if the respondent No.1 receives better treatment his recovery would be more and his earning capacity under some change. 7. This Court is of the view, on perusal of the documents, it is further seen that as the Doctor had himself admitted that if better treatment was received, there was a chance of more recovery and change in the earning capacity of the claimant. This Court is compelled to take a view that concerned Doctor was aware at the time of giving treatment that it was possible of the respondent No.1 to get a better treatment. In the opinion of this Court, the Doctor/PW.2 who is admittedly and Orthopedic Surgeon, has not been given any evidence to show that when there is a mention in Exht.3 no abnormality is detected in X-ray, what was the basis to have a contradictory finding on physical examination. Therefore, if the evidence of PW.2 is to be accepted, it would be contrary to MFA No. 90//2005 Page 3 of 5

4 Exht.2, wherein it is stated that no other abnormality is seen. Therefore, in view of the provisions of Section 92 of the Evidence Act, the oral evidence which is contrary to a documentary evidence, must be excluded. 8. In the absence of fresh X-ray plates, on or before , the diagnosis of frozen shoulder at right shoulder joint appears to be on the basis of surmise and conjunctures. The said presumption can be drawn on the basis of the statement made by the claimant that he did not inform the concerned District Transport Officer that he was incapacitated to drive vehicle at the time when his driving licence was renewed after the date of accident. Therefore, the presumption is that he was physically well when he applied for renewal of his driving licence. This Court is compelled to make an observation that it appears that the Doctor administered medicines to his patient, knowing that if the patient had received better treatment, his condition would have improved. Having said so, this court is restrained itself from making any further comment as the said Doctor had no notice to defend his action. An X-ray plate is the primary evidence of the injury and X-ray report is the secondary evidence depicting what is the radiologist had found on reading the X-ray plate. In the absence of primary evidence, it is not possible to depend only on the secondary evidence to hold that there was an injury to the respondent No.1 which has reduced his earning capacity and has resulted in physical disability. In the light of the fact in Exht.3, there is a mention that there is no abnormality is detected in the X-ray, the testimony of the Doctor is found to be contrary to the report of an Radiologist. Therefore, such evidence has to be rejected. 9. Moreover, this Court is of the view that when the respondent No.1 was treated as PHC at Sonapur, there was no reason for the respondent No1/claimant to withhold a document relating to that treatment because it as an admitted case before the learned Commissioner that police had taken him to the said centre for his initial treatment. Therefore, a presumption is drawn under Section 114, Explanation (g) of the Evidence Act that had the said document been produced, MFA No. 90//2005 Page 4 of 5

5 it could have been adverse to the respondent No.1. Admittedly, the respondent No.1 is a resident of Rangia in the district of Kamrup and it is difficult to appreciate that a person from Rangia would travel all along to Nagaon to get treatment without taking treatment at Guwahati, which is the nearest place having a better facility for medical treatment compared to Nagaon. Admittedly, the PW.2, who was treating the victim was not an Orthopedic Surgeon but was a Master of Surgery. It is unconvincing that even after not allegedly properly healed of fracture in the shoulder one would continue to omit visiting an Orthopedic Surgeon. Therefore, Exht.3, being found contrary to Exht.2, X-ray report, the same is liable to be rejected. Even in Exht.3 and Exht.4 despite the X-ray report showing no abnormality is seen, the Doctor/PW.2 has found swelling tenderness and deformity on the right shoulder joint and multiple abrasion over the extremities and tenderness over the lumbo sacral spine. The said findings is not only without any basis and found to be contrary to Exht.2 and, as such, the same is liable to be rejected. The injuries suffered by the respondent No.1 stands disproved and/or not proved. 10. Resultantly, the appeal stands allowed. The judgment and award dated passed by the learned Commissioner, Workmens Compensation, Nagaon in W.C. Case No.182/2001 is hereby set aside. 11. The appellant is entitled to withdraw any statutory deposit or deposit of any part of the award made before the learned Commissioner, Employees Compensation, Nagaon or before the Registry of this Court, as the case may be. 12. Send back the LCR forthwith. JUDGE MKS. MFA No. 90//2005 Page 5 of 5