Divisional Manager, JKSFC, Doda vs Kabir Ahmad And Another

Tashi Rabstan, J

This appeal is directed against the award dated 27.04.2010 passed by the Commissioner Workmen's Compensation (Assistant Labour Commissioner), Doda, whereby the application of Kabir Ahmad, respondent No.1 herein, under Section 3 of Workmen's Compensation Act came to be allowed and he was held entitled to a compensation of Rs.269083/- only, which included interest @ 12% per annum upto the date of award. This award was to be satisfied by the J&K State Forest Corporation, through Divisional Manager, Doda.

The facts-in-brief as projected in the award are that on 08.08.2004 while dressing a log of wood in Compartment 66, Kandairi Nala of State Forest Corporation, Division Doda, the axe struck on the right foot of respondent-Kabir Ahmad, as a result of which he received traumatic injuries to all toes of his right foot, which ultimately resulted in contracture deformity of toes and he became disabled. In the application, he claimed to be 18 years of age at the time of accident and was earning Rs.150/- per day as wages.

With a view to substantiate his claim, respondent-Kabir Ahmad produced witnesses, namely, Abdul Latif, Noor Mohammaed and Dr. Nizam-ul-Din, Medical Officer, District Hospital, Doda.

The Medical Officer deposed that Kabir Ahmad, respondent herein, had traumatic injuries of all toes of right foot. He has developed contracture of three toes and stiffness of one toe of right foot. The disablement is permanent to the extent of 30%. The percentage may increase with increasing age. He cannot do hard manual works and can lift only light weights.

A perusal of the award reveals that despite granting number of opportunities, the appellant herein did not produce even a single witness to rebut the assertions of respondent-Kabir Ahmed.

On the basis of evidence on record, the Commissioner found that respondent-Kabir Ahmed was 19 years of age at the time of accident and had been earning Rs.4000/- per month. Learned Commissioner, accordingly, held Kabir Ahmed, respondent herein, to be entitled to a compensation of Rs.269083/- only, which included interest @ 12% per annum upto the date of award. Feeling aggrieved, the appellant herein has filed the present appeal.

Learned counsel appearing on behalf of the appellant raised a question that the Doctor, who assessed the workman, has not given any certificate regarding the loss of earning capacity in terms of Section 4(1)(c)(ii) of the Workmen's Compensation Act, 1923. As per Section 4(1)(c)(ii) of the Act, the Doctor has to assess the loss of earning capacity of the workman which is not done in this case. By relying on the said provision, learned counsel for appellant is of the opinion that the Doctors alone are competent to fix the loss of earning capacity of a workman within the meaning of the Act. Since in the present case, the Doctor has not assessed the loss of earning capacity, therefore, suo motu fixation by the Assistant Labour Commissioner regarding the loss of earning capacity is improper, irregular and not in consonance with the provisions of the Act, as such cannot be sustained. It is further contended that the Doctor himself assessed the nature of injury as partially permanent. Thus, the injuries sustained are not actually permanent and therefore, the quantum of compensation awarded by the Assistant Labour Commissioner is excessive. He further argued that the Commissioner without insisting for a certificate from the qualified medical practitioner or subjecting the respondent to medical examination to find out the impact of the injury on his earning capacity, has passed the award impugned, whereas the Commissioner in absence of any such assessment of loss of earning capacity by the qualified medical practitioner, could not have granted/awarded compensation.

Heard learned counsel appearing for the parties and perused the file.

Admittedly, there is no dispute regarding the factum of accident and that the accident occurred in the premises of appellant/principal employer during the course of employment. The issues were adjudicated by the Assistant Labour Commissioner with reference to the documents and evidence produced. In view of the fact that the accident was established and the injuries sustained during the course of employment, the Assistant Labour Commissioner awarded compensation and the quantum of compensation was arrived at based on the doctor's report that the workman sustained partial and permanent disability to the extent of 30%. 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., 2017 (1) SCC 45, to be the last authority of facts. 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.

In the case of Vivek and Co. vs N. Ravi and ors., in C.M.A. No.1705 of 2018 decided on 12.02.2021, what is held by the High Court Madras in paragraphs 14 to 21 is reproduced hereunder:

"14. In the case of New India Assurance Co., Ltd., Vs. Sri Gopal Shill & another, the Gauhati High Court held as follows:

"8. In view of the said ratio as laid down by this Court, this Court is of the opinion that as regards the first substantial question of law, the Commissioner under the said Act does not have the power to make its own assessment of the loss of earning capacity of its own without there being any medical evidence in that regard and, as such, the first substantial question of law is answered in the negative and in favour of the appellant in terms of the ratio laid down in the case of Sanjit Kumar (supra)"

Perusal of the entire paragraph cited above reveals that it is not open to the learned Commissioner to assess the loss of earning capacity in the absence of any valid certificate to that effect. Further, it speaks about medical evidence. Therefore, the very purpose is to hold that in the absence of a valid medical certificate from a qualified medical practitioner, the Commissioner of Labour cannot assess the loss of earning capacity. In other words, the loss of earning capacity is to be assessed with reference to the medical certificate issued by the medical practitioner. Thus, the medical practitioner is competent to issue a certificate regarding the disability and to fix the percentage of disability and based on the percentage of disability with reference to the monthly income fixed, the learned Commissioner of Labour has to calculate the total compensation to be paid. Therefore, the suggestion of the learned counsel for the appellant that the medical practitioner should assess the loss of earning capacity is improper and the medical practitioners are not competent authorities to assess such loss of earning capacity. They are competent to issue a disability certificate with reference to the injuries suffered by the victim.

In the case of Executive Engineer, Orissa State Electricity Board, Salipur Electrical Division and others Vs. Kedar Charan Lenka, reported in 1997 ACJ 869, the Orissa High Court held in Paragraph 7 of the judgment is as follows:

"7. So far as quantum is concerned, I find that the Commissioner has erroneously equated the percentage of physical disability with the loss of earning capacity. The two are conceptually different. While the former may throw some light on the process of assessment of the latter, that is not the determinative factor. It is no doubt true that money cannot renew a physical frame that has been battered and shattered, but the Judges and courts can award sums which must be regarded as giving reasonable compensation as observed by Lord Morris in H. West & Son Ltd. v. Shephard, 1958-65 ACJ 504 (HL, England). The greatest element of damage in many cases is the pain, suffering and loss of ordinary pleasures and convenience associated with healthy and mobile limbs. All that the court can do is to award such sum as will enable the claimant to acquire some material possessions or to develop a life style which will offset to some extent his terrible disability. [See Thomas v. British Railways Board, 1977 ACJ 222 (CA, England, per Scarman, LJ.)]."

The said finding also reveals that the concept of percentage of physical disability with the loss of earning capacity is different. Undoubtedly, the physical disability is to be assessed by the qualified medical practitioner and loss of earning capacity is to be assessed by the Commissioner of Labour with reference to the physical disability as well as the monthly income fixed. Thus, the two factors as stated by the High Court are different and therefore, it cannot be held that the medical practitioners alone are competent to assess the loss of earning capacity.

In the case of C. David Vs. Gobind Chandra Mishra, reported in 1998 (1) ACJ 22, the High Court of Orissa held as follows:

"8. In the premises stated above, we state that while assessing compensation, the Court has to see whether the earning capacity of the injured has been reduced in every employment and not merely in particular employment in which he was engaged at the time of the accident. That is the reason why S. 4(1)(c)(ii), Explanation II of the Act mandates that in case of non-schedule injury the qualified medical practitioner while assessing the loss of earning capacity shall have due regard to the percentage of loss of earning capacity in relation to different injuries specified in Schedule I.

In view of what has been stated above, the claim of the appellant that he suffered total disablement and compensation should be determined on the footing that it was a case of 100 per cent loss of earning capacity is not tenable."

All the judgments cited by the learned counsel for the appellant are of no avail as the competency of the Commissioner of Labour and the medical practitioners are different and independent. Thus, the medical practitioners are empowered to issue disability certificate and the percentage of disability is to be mentioned in the certificate. Based on the percentage of disability assessed by the medical practitioner, the Commissioner of Labour has to take into consideration all other factual aspects including the monthly income of the workmen concerned and thereafter, calculate the total compensation to be paid and this would be the procedures as contemplated under the Workmen Compensation Act and therefore, the contention of the learned counsel for the appellant in this regard deserves no merit consideration.

This Court is of the considered opinion that the provision itself is unambiguous. The provision cited supra reveals that "percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury". Therefore, the disability percentage assessed by the Doctor must be taken into consideration for fixing the loss of earning capacity. That is the spirit of Section and that must be the purpose and object of the provision enabling the authorities to fix the compensation in commensuration with the disability assessed by the Doctor. In other words, the disability assessed by the Doctors and the loss of earning capacity to be fixed by the competent authority must be nearer and in commensuration with the disability percentage in order to avoid grant of excess compensation or lesser compensation. The provision contemplates that the Doctors must assess the disability. The medical practitioners are certainly not competent to assess the loss of earning capacity which is not relatable to the medical profession. The very intention of the provision is to ensure that the 'just compensation' is awarded. That being the purpose and object of the provisions, the Courts are bound to interpret that the objects sought to be achieved are achieved. Once the qualified Doctor assessed the disability, such a disability percentage is to be taken into consideration for the purpose of assessing the loss of earning capacity of the workman. This being the possible interpretation which is constructive to reach the object of the Act, this Court is of the opinion that the very interpretation offered by the learned counsel for the appellant deserves to be rejected.

For example, in the case of a driver, if the medical practitioner assessed the disability as 70% considering the nature of injury sustained, then the Courts are empowered to enhance the loss of earning capacity taking into consideration the nature of the job and further to consider whether such a workman is capable of performing his duties and responsibilities attached to the post or not. 70% disability for a driver is certainly a permanent disability to perform his duties and responsibilities as a driver. Therefore, in such circumstances, the Courts are empowered to fix the loss of earning capacity by taking into consideration the facts and circumstances of each case. Therefore, the assessment of the Doctor is not a conclusive factor. Judicial mind is to be applied in each and every case based on the facts and circumstances and taking note of the fact that the Workmen Compensation Act is a welfare legislation. In no circumstances, the compensation should be lesser than that of one, for which, the workman is entitled and in all circumstances, the Courts are expected to fix "just compensation" to meet out the principles laid down in this regard. Therefore, the facts and circumstances plays a pivotal role, while fixing the loss of earning capacity by the Courts. In certain cases, Courts are empowered to fix the loss of future income and in certain cases, it can be over and above the disability percentage based on the nature of the job. Such a view is taken consistently by the Courts mainly on the ground that the qualified medical practitioner assessed the disability by examining the victim and such an examination is in no way connected with the loss of income to be fixed by the Courts based on various other factors. Under these circumstances, as stated above, a driver, who sustained 70% disability may be entitled to get more percentage of loss of earning capacity, in view of the fact that he is totally disabled from performing his duties as a driver. In another case, if a shop owner lost his leg and still he is capable of earning income by sitting in a shop, then Court may assess the compensation suitably. At the outset, the facts and circumstances and the nature of the injuries as well as the nature of the job are the deciding factors for the purpose of fixing the compensation. Therefore, a straight jacket formula can never be adopted by the Courts, while fixing the 'just compensation'."

Now I come to the argument of learned counsel for appellant that the award is on higher side. What is held by the High Court Madras in Vivek and Co. (supra) is reproduced hereunder:

"22. Adopting the conventional procedures, the minimum wages are fixed by the State and Union for the purpose of fixing the monthly income. Undoubtedly prior to 18.01.2010, the date on which the amendment was issued, the deeming cap was in force and as per the deeming cap, a sum of Rs.4000/- was fixed as a monthly income. However, in the amendment dated 18.01.2010, such a deeming cap was removed and the Supreme Court also interpreted in the case of K.Sivaraman and Ors Vs. Sathish Kumar and Anr, cited supra that such deeming cap on the monthly income of the employee was removed from the amendment. Therefore, the actual monthly wages of the employee is to be taken into account for grant of compensation. Therefore, the employee is at liberty to establish his monthly income by submitting documents and evidences. Once an employee is able to establish his monthly income with an acceptable evidence, then, such monthly income is to be taken into consideration for the purpose of quantifying the compensation. In the cases where there is no proof is available, then, the minimum wages notified by the Central Government under Section 4(1B) is to be taken into account."

In the present case despite granting number of opportunities by the learned Commissioner, the appellant herein did not produce even a single witness to rebut the assertions of respondent-Kabir Ahmed. Therefore, in the absence of any evidence/witness to rebut the claim of workman, appellant has no right to agitate at this stage that the amount awarded is on higher side. Otherwise too, prior to 18.01.2010, as per the deeming cap, a sum of Rs.4000/-had been fixed as a monthly income.

The judgments referred to by the learned counsel for the appellant have no force in the light of what has been discussed hereinabove.

Viewed thus, I do not find that any substantial question of law is involved in the case nor find any merit in the appeal and the same is, accordingly, dismissed along with connected IA. Let the awarded amount, along with interest accrued thereon, be released in favour of respondent-Kabir Ahmed after proper verification/identification and the payments are to be made through RTGS.