Reliance General Insurance Co Ltd. @APPELLANT@Hash Bachan Singh and anr

1 The Reliance General Insurance company Ltd. is in appeal against the award dated 23.01.2018 passed by the Commissioner Employees

Compensation Act (Assistant Labour Commissioner), Kathua )hereinafter referred to as “Commissionerâ€) in File No.EC/2016/23 titled

“Bachan Lal vs M/S Sujan Singh Construction Company and another.

Briefly stated, the facts leading to the filing of this appeal under Section 30 of the Employees Compensation Act, 1923 (hereinafter referred to as

“the Actâ€) are that, on 03.12.2005, the respondent No.1workman, a driver by profession, was employed as driver by respondent No.2 with Tipper

bearing No.JK08B-4621 at a monthly wage of Rs.15,000/-. On 31.03.2015 at about 1930 hrs, while the respondentworkman was driving the aforesaid

vehicle at Londi Morh, NHW near Police Nakka Tehsil Hirangar, due to sudden application of the brakes, the vehicle turned turtle, as a result of

which one person, namely, Rashid Ahmed died on spot and the respondent-workman sustained multiple serious injuries causing a permanent disability

of 20%. He laid a claim for compensation before the Commissioner against the employer i.e respondent No.2 as well as the appellant herein being

insurer of the aforesaid vehicle. The respondent No.1 claimed that the accident took place under and in the course of employment of the respondent

No.2 and that at the time of accident he was 40 years old.

With a view to substantiate his claim, the respondent-workman, besides examining himself , also produced witnesses, namely, Ajit Raj, Sukhdev

Singh and Dr. Shalinder Sharma, Consultant Orthopaedics, District Hospital, Kathua. The appellant did not produce any witness in rebuttal.

On the basis of evidence of the parties, the Commission found that the respondent No.1 was 44 years old at the time of accident and for

computation of compensation, income of the respondent No.1 was taken as Rs.8,000/- per month. Doctor had certified permanent disability of the

respondent No.1 as 20%. Admittedly, there was no certificate by the qualified medical practitioner with regard to the loss of earning capacity of the

respondent No.1-workman. Doctor did explain the nature of injury suffered by respondent, but said nothing about the impact of disability suffered by

him on his earning capacity. The Commissioner, without insisting for a certificate from the qualified medical practitioner or subjecting the respondent-

claimant to medical examination to find out the impact of the injury on his earning capacity, of his own, determined the loss of earning capacity of the

respondent as 20%. Admittedly, this finding of fact is not suported by any material on record.

In the aforesaid context, learned counsel for the appellant submits that the findings of fact recorded by the Commissioner are perverse insofaras it

has taken the loss of earning capacity of the respondent No.1 as 20%. Though no formal substantial question of law has been formulated in this

appeal, yet learned counsel for the appellant during the course of arguments has raised a question of law as to whether in the absence of any

certificate by a medical practitioner with regard to the loss of earning capacity due to permanent disability suffered by the respondent-workman, the

Commissioner is competent to assess such loss of earning capacity of his own. As rightly conceded by the learned counsel for the appellant, the

Commissioner is the last authority on facts, and therefore, the dispute on facts cannot be made subject matter of adjudication in the appeal under

Section 30 of the Act which specifically provides that appeal would lie only if it involves substantial question of law. He, however, submits that the

question as to whether the Commissioner could have taken the disability of the workman as loss of earning capaacity without insisting for a certificate

in this regard to be issued by the qualified medical practitioner is a susbtantial question of law involved in this appeal. Â

Having heard learned counsel for the parties and perused the record, I am of the opnion that this appeal raises following substantial question of law:

“Whether the Commissioner of his own can assess the compensation on account of permanent partial disablement suffered by a workman in case

of non scheduled injury without there being a certificate with regard to the loss of earning capacity issued by a qualified medical practitioner â€​?

To deal with aforesaid question formulated above, it would be appropriate to first take note of the provisions of Section 4 of the Act which are

reproduced hereunder:

Amount of compensation.-

(1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:--

(a) where death results from the injury : an amount equal to forty per cent of the monthly wages of the deceased workman multiplied by the relevant

factor; or an amount of twenty thousand rupees, whichever is more;

(b) where permanent total disablement results from the injury : an amount equal to fifty per cent of the monthly wages of the injured workman

multiplied by the relevant factor; or an amount of ninety thousand rupees whichever is more;

(c) where permanent partial disablement result from the injury: (I) in the case of an injury specified in Part II of Schedule I, such percentage of the

compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of

earning capacity caused by that injury; and (ii) in the case of an injury not specified in Schedule I, such 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 medicalpractitioner) permanently

caused by the injury;

Explanation-I.----Where more injuries than one are caused by the same accidnt, the amount of compensation payable under this head shall be

aggregated but not so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the

injuries; Explanation-IIâ€"In assessing the loss of earning capacity for the purposes of sub-clause (ii), the qualified medical practioner shall have due

record to the percentages of loss of earning capacity in relation to diferent injuries in Schedule I. (d) where temporary disablement, whether total or

partial, results from the injury : a half monthly payment of the sum equivalent to twenty-five per cent. of monthly wages of the employee, to be paid in

accordance with the provisions of sub-section (2)â€​.

From reading of Section 4 of the Act, it is clear that Section 4 of the Act deals with determination of amount of compensation. Section 4 (i)(a) deals

with a case where death results from the injury and compensation in such case is provided to be an amount equal to 50% of the monthly wages of the

deceased workman multiplied by relevant factor or Rs.1,20,000/- which ever is more. Section 4(1)(c)(ii), however, deals with a case where the injury

occurred to workman is not specified in Schedule 1. In such case, the compensation payable is to be such percentage of compensation as is payable in

case of permanent total disablement as is proportionate to the loss of earning capacity as assessed by the qualified medical practitioner. It is only

where the injury does not fall under Part I or Part II of the schedule 1, section 4(1)(c)(ii) applies. Further, in terms of the explanation No.II to Section

4(1)(c)(ii), the qualified medical practitioner while assessing the loss of earning capacity due to the disability suffered by the employee is obliged to

have due regard to the percentages of loss of loss of earning capacity in relation to different injuries specified in Schedule I. It is, thus, apparent that

the percentage of loss of earning capacity in relation to different injuries specified in ‘Schedule 1 would serve as guide for the qualified medical

practitioner to assess the loss of earning capacity in relation to nonscheduled injuries as well.

The bracketed portion in the relevant provisions “as assessed by a qualified medical practitioner†was not part of the original Section, but was

incorporated into the Act by Act 22 of 1984 w.e.f 1.07.1984. In the context of the aforesaid specific provision, the question that falls for determination

is as to whether the loss of earning capacity can be assessed by the Commissioner of his own without there being any certificate by a qualified

medical practitioner assessing the loss of earning capacity proportionate to the disablement. It may be noted that prior to the incorporation of the

words “as assessed by the qualified medical practitioner†the compensation for the injury not specified in Schedule 1 was to be decided on the

basis of percentage of compensation payable in case of permanent total disablement as is proportionate to the loss of earning capacity caused by an

injury, but when the Parliament specifically incorporated the aforesaid words, their significance cannot be watered down.

In the instant case, admittedly the Doctor’s certificate though mentions percentage of disability, but does not specifically mention the

percentage of loss of earning capacity. In such situation, the Commissioner, of his own could not have worked out the loss of earning capacity. Ideally,

the Commissioner should have called for second medical report or get the appellant claimant medically examined by the medical board. However, in

the absence of any certification by a qualified medical practitioner with regard to loss of earning capacity proportionate to the percentage of disability,

the Commissioner was not competent to work out the loss of earning capacity of his own and on the basis of his own assessment. Permitting the

Commissioner to do so would be tantamount to overlooking the significance and the object of the amendment introduced by Act 22 of 1984.

Similar question had arisen before the Full Bench of Kerala High Court in the case of New India Assurance Co. Ltd vs Sreedharan, 1995 (1) KLJ

The full Bench of Kerala High Court, after discussing the provisions of Section 4(1)(c)(ii) and the incorporation of words “as assessed by a

qualified medical practitionerâ€​ by way of Act 22 of 1984 w.e.f 01.07.1984, in paragraph No.13 held thus:

“In view of the newly incorporated words 'as assessed by the qualified Medical Practitioner' by virtue of Act 22 of 1984, its importance and

significance cannot be overlooked. As the Legislature in its wisdom chose to incorporate the aforesaid words intoSection 4(1)(c)(ii), we cannot hold

that it has been incorporated with no purpose. It is really with a purpose that it has been enacted. In view of the incorporation, it is not a case of

ambiguity at all. In such a situation Court is not justified in stultifying the comprehensive language used by the Legislature especially when there is no

ambiguity at all. The intention of the Legislature has to be collected from the words employed in the statute. In a case where there is no ambiguity in

the words used in a provision, the Court cannot add or subtract words by its own construction. This is especially so when words are incorporated in a

particular provision in a statute with definite purpose. That purpose cannot be read down by judicial interpretation. In other words, when a provision in

a statute is itself clear and unambiguous due significance must be attached to it. In other words, when the Legislature used appropriate terminology,

the statute has to be read in accordance with the words used thereinâ€​.

12 Similar view has been taken by a Single Bench of this Court in CIMA No. 119 of 2009 titled “Divisional Manager  vs Mohd Hanief and anr,

decided on 06.06.2012. In the aforementioned case, the Single Bench had formulated a specific substantial question of law involving the incorporation

of bracketed portion in Section 4(1)(c)(ii). After taking note of the said provisions, the Single Bench in the aforesaid case held thus:

“The Authority (ALC) has to decide the issue strictly in accordance with the mandate contained in the Act of 1923. In this case, admittedly loss of

earning capacity has not been assessed by the qualified Medical Practitioner as per the mandate contained in Section 4(c)(ii) of the Act 1923. In cruel

disregard to the mandate contained in Statute, Authority (ALC) itself has determined the loss of earning capacity suffered by the workman. The

Authority (ALC) is creature of Statute and has to act within the boundaries of the Statute itself. The Authority (ALC) cannot travel beyond the

defined frontiers of Act of 1993 and cannot determine the issue which he is not empowered by the Statute.

One of the doctors has deposed that workman-respondent suffered loss of 50% earning capacity and another has deposed that he has lost 5% of

physical capacity. Learned Authority (ALC) took it upon itself to assess the loss of earning capacity and fixed same at 35%. It was not the power and

jurisdiction of the authority (ALC) to determine the loss of earning capacity.â€​

I am in full agreement with the view taken by the Single Bench of this Court in the aforesaid case which is also fortified by the view of Full

Bench of Kerala High Court in Sreedharan’s case (supra) and accordingly hold that the Commissioner was not competent to assess the loss of

earning capacity of his own without there being any certificate by a qualified medical practitioner certifying the loss of earning capacity proportionate

to the percentage of disability suffered by a workman in the case of non scheduled injury. This answers the question formulated above. Â

The reliance put by the learned counsel for the respondent on the judgment of Hon’ble Supreme Court rendered in the case of Golla Rajanna

vs The Divisional Manager, AIR 2016 SC 5382 is misplaced. The aforesaid judgment has been rendered in peculiar facts and circumstances and,

therefore, distinguishable. The impact of amendment made in 4(1)(c)(ii) of the Act of 1923 by Act 22 of 1984 and incorporation of bracketed portion

“as assessed by a qualified medical practitionerâ€​ were not subject matter of discussion and adjudication in the aforementioned case.

In view of the foregoing discussion and the answer given to the formulated question, this Court is left with no option, but to set aside the award and

remit the matter to the Commissioner with a direction to take appropriate steps for determining the loss of earning capacity of the appellant-workman

in accordance with the mandate contained in Section 4(1)(c)(ii). Ordered accordingly.

The Commissioner shall get the respondent No.1 medically examined by a qualified medical practitioner or the Board of Doctors for assessment of

disability and the loss of earning capacity. Based upon such certificate, the Commissioner would proceed to re-determine the amount of compensation

payable to the respondent-workman.

It is noted that in compliance to the award passed by the Commissioner, the appellant has deposisted the awarded amount before the

Commissioner and the same was directed to be deposited before this Court. Admittedly, the respondent No.1 sustained injuries and had become

permanently disabled, therefore, it would be just and proper, if 50% of the amount is directed to be released in his favour. Â Accordingly, Registry is

directed to remit the amount to the Commissioner, who on its receipt shall release 50% amount in favour of the respondent No.1 on proper

identification and the remaining 50% amount shall be dealt with when the matter is reconsidered by the Commissioner and fresh award is passed by

him.