Divisional Manager Jksfc Bhaderwah vs Doost Mohammad

The instant appeal has been filed by the appellant against award dated 20-05-2014 (for short impugned award) passed by the Assistant Labour

Commissioner, Doda (for short the Commissioner) under Employees Compensation Act 1923 (for short the Act) in favour of the respondent herein.

The appeal has been filed under Section 30 of the Act which provides for filing of an appeal from various orders of a Commissioner enumerated in

(a) to (e) of sub Section (1). The first proviso appended thereto Section 30 (1) however, would provide that no appeal shall lie against any order unless

a substantial question of law is involved in the appeal………

The appellant in the memo of appeal has formulated as many as seven questions styled as substantial questions of law, however, learned counsel

for the appellant insists for consideration of only following question thereof stated to be a substantial question of law:-

“Whether without determining the nature of injury and without there being any evidence with regard to loss in earning capacity, the compensation

can be grantedâ€​.

Heard learned counsel for the parties and perused the record.

Learned counsel for the appellant while placing reliance on Judgment passed by this Court in case titled as “Divisional Manager, J&K State

Forest Corporation vs. Bansi Lalâ€, would contend that the Commissioner proceeded to pass the impugned Award in breach of Section 4(1)(c)(ii) of

the Act, in that, in the case of an injury not specified in Schedule 1, compensation is payable in the case of permanent total disablement as is

proportionate to the loss of earning capacity to be assessed by the qualified medical practitioner alone.

According to the leaned counsel for the appellant, Explanation-II appended to Section 4 supra would provide that in assessing the loss of earning

capacity for the purpose of sub clause (ii), the qualified medical practitioner shall have due regard to the percentage of loss of earning capacity in

relation to different injuries in Schedule 1.

According to the learned counsel for the appellant the Commissioner in absence of any such assessment of loss of earning capacity by the qualified

medical practitioner, could not have granted/awarded compensation to the claimant/respondent.

Per contra, learned counsel for the respondent/claimant would resist and controvert the contentions raised and urged by the learned counsel for the

appellant and would contend that no substantial question of law is involved in the appeal warranting interference by this court inasmuch as the non-

assessment of the loss of earning capacity by the qualified medical practitioner under Section 4(1)(c)(ii) does not forbid or stand in the way of the

Commissioner for award of compensation to the claimant/respondent, in that, such assessment would merely be a medical opinion of an expert in aid

to the Commissioner in adjudicating a claim in correct perspective.

The Workman Compensation Act 1923 indisputably has been enacted for social security and is a welfare legislation with its purpose to protect the

workman. The intention of the legislation as provided under the Act is to make the employer/insurer of the workman responsible against the loss

caused by injury or death which might to have happened, while the workman has been engaged in his work.

Section 2 (b) of the Act defines the Commissioner as under:

“2.(b) Any Commissioner may, for the purpose of deciding any matter referred to him for decision under this Act, choose one or more

persons possessing special knowledge of any matter relevant to the matter under enquiry to assist him in holding the enquiry.â€​

Section 20 provides for appointment of Commissioner and reads as under: -

“20. Appointment of Commissioners.-

(1) The State Government may, by notification in the Official Gazette, appoint any person [who is or has been a member of a State Judicial Service

for a period of not less than five years or is or has been for not less than five years an advocate or a pleader or is or has been a Gazetted officer for

not less than five years having educational qualifications and experience in personnel management, human resource development and industrial

relations] to be a Commissioner for [Employee’s] Compensation for such area as may be specified in the notification.

(2) Where more than one Commissioner has been appointed for any area, the State Government may, by general or special order, regulate the

distribution of business between them.

(3) Any Commissioner may, for the purpose of deciding any matter referred to him for decision under this Act, choose one or more persons

possessing special knowledge of any matter relevant to the matter under injury to assist him in holding the inquiry.

(4) Every Commissioner shall be deemed to be a public servant within the meaning of the Indian Penal Code.

A plain reading of the scheme, statement of objects and reasons of the Act coupled with the provisions supra would reveal that Section 4(1)(c)(ii)

is an enabling provision, enabling the Commissioner to determine the percentage of compensation payable to the claimant on the basis of assessment

of loss of earning capacity by the qualified medical practitioner. The adjudicating authority admittedly in the matter is the Commissioner who on

account of his specialized qualification possessed by him envisaged under Section 20 of the Act has to determine the percentage of compensation

under Section 4(1)(c)(ii). The medical evidence in general and the assessment of loss of earning capacity as assessed by a qualified medical

practitioner under Section 4 (1)(c)(ii) in particular, per-se would be a factor to be taken into account for award of percentage of compensation in the

case of an injury not specified in Schedule 1 by the Commissioner. This would be based on the doctrine of harmonious construction and the settled

principle that a beneficial piece of legislation has to be interpreted in such a way as to assure the benefit and not to deny the benefit that is sought to

be conferred by the statute.

A medical practitioner may very well estimate/assess the loss of physical capacity for work or even the loss of earning capacity yet such medical

evidence by itself cannot termed to be only conclusive/determinative factor for award of percentage of compensation by the Commissioner. The

assessment of loss of earning capacity by a medical practitioner cannot termed to be more than a medical opinion of an expert providing an aid to the

Commissioner who has been held by the Apex Court in the case titled as “Golla Rajanna Etc. Vs. The Divisional Manager & Anr., reported in

2017 (1) SCC 45â€​, to be the last authority of facts.

In the instant case after suffering an injury, the claimant filed a claim petition under the provisions of the Act which claim petition has been

supported with a medical opinion/certificate certifying assessment of disability suffered by the claimant proportionate to the loss of earning capacity.

Perusal of the record in general and the evidence of the doctor namely Dr. N. D. Dhar having appeared as a witness in particular, reveals that the

said evidence has formed basis for the Commissioner to determine the percentage of compensation proportionate to the loss of earning capacity on

account of disability suffered by the claimant and assessed by the doctor concerned.

Indisputably there has been credible and cogent medical evidence on record weighing with the Commissioner entitling the claimant to

compensation with no evidence contrary thereto produced or led by the appellant herein. The case admittedly is not of no medical

evidence/assessment before the Commissioner as is sought to be projected by the appellant before this court but that the Commissioner mandatorily

had to have the assessment of loss of earning capacity determined by a registered medical practitioner authorizing him to determine and grant

compensation to the claimant. This contention and interpretation of the counsel for the appellant of Section 4(1)(c)(ii) does not match with the scheme,

statement of objects and reasons of the Act so much so the observations made in the preceding paras.

The question formulated by the appellant and referred to hereinabove in view of the preceding observation and analysis cannot said to be a

substantial question of law involved in the case, more so in view of the fact that the compensation awarded by the Commissioner to the

claimant/respondent herein is fundamentally based on factual matrix. The judgement of this Court passed in the case of “Divisional Manager J&K

State Forest Corporation supra relied upon by the counsel for the appellant is misplaced and misdirected in the facts and circumstances of the case

and does not lend any support to the case setup by the appellant.

Viewed thus, what has been observed, considered and analyzed hereinabove, the impugned award dated 20-05-2014 does not call for any

interference resultantly the appeal fails and is, accordingly, dismissed.