Vinkel Kumar @APPELLANT@Hash New India Assurance Co. Ltd. And Ors.

1 This appeal is directed against the award of the Commissioner under Employees Compensation Act, 1923 (Assistant Labour Commissioner),

Jammu(hereinafter referred to as “the Commissionerâ€) dated 20.07.2017. The appeal has been filed by the claimant/employee who feels

dissatisfied with the amount of compensation awarded to him.Â

2 Briefly stated, the facts which are relevant for the disposal of this appeal are that on 07.03.2014, a motor vehicular accident took place near Village

Galginder. A motor cab Sumo bearing No. JK06-3599, which was being driven by the appellant turned turtle as a result whereof the appellant suffered

multiple injuries and remained admitted in Government Medical College, Hospital Jammu from 05.03.2014 to 24.04.2014. The appellant had to undergo

surgeries and was rendered permanently disabled. It was claimed that the appellant was an employee of respondent No. 2, the owner of the vehicle in

question. The appellant also claimed that he was 29 years old at the time of accident and was getting monthly wages of Rs. 12,000/- besides trip

charges. The claim petition was preferred by the appellant before the Commissioner, Employees Compensation Act, (ALC), Jammu. The appellant

raised a claim of Rs. 12 lacs for the permanent disablement caused to him in the accident which took place during and in the course of employment of

respondent No. 2. The claim of the appellant was contested by the owner and the insurance company before the Commissioner. On the basis of

pleadings of the parties, the Commissioner framed following issues for adjudication:-

a. Whether the applicant namely “Vinkel Kumarâ€Â  falls within the definition of “employee†as prescribed under the provisions of E.C.

Act, 1923?  O.P.P

b. Whether the applicant met with an accidentarising out of and in the course of his employment?O.P.P

c. What was the age and wages of applicant at the time of accident? O.P.P

d. Whether the vehicle in question involved in the accident was driven in violation of the terms and conditions of the insurance policy? O.P.R-2

e. Relief O.P. Parties.Â

3 The appellant examined himself as also one more witness, i.e, PW Dr. V.K Sharma. On the other hand, the respondents chose not to examine

any witness in defence.Â

4 On the basis of evidence on record, the Commissioner decided issue No. 1 in favour of the appellant and against the respondent-insurance company

by holding that the appellant at the relevant point of time was working as a driver under the employment of respondent No. 2 and, therefore, would fall

within the definition „employee‟ as prescribed under the Act. Similarly, on issue No. 2, the Commissioner, on the basis of evidence, returned a

finding that the appellant met with an accident arising out of and in the course of his employment. The Commissioner also found that the age of the

appellant at the time of accident was 31years and that being a professional driver, he was earning Rs. 8,000/- per month. For the purpose of

calculation of the compensation, the Commissioner took the age of the appellant as 31 years and income as Rs. 8,000/- per month. Similarly, issue No.

4 was decided against the respondent-insurance company as the company had not led any evidence to show that the vehicle in question involved in the

accident was being driven in violation of the terms and conditions of the insurance policy at the time of accident. Since the doctor had certified the

disability of the appellant as 28 %, accordingly, the Commissioner took the loss of earning capacity of the appellant due to accident also as 28 % and

accordingly, awarded a sum of Rs. 2,76, 837/- along with the interest of Rs. 83,163 @ 12 % calculated w.e.f 01.01.2016 to 20.07.2017. It has been

stated at bar that in compliance to the aforesaid award, the insurance company deposited the awarded amount before the Commissioner and the

appellant has also withdrawn the same with the permission of the Commissioner. After having received the awarded amount, the appellant decided to

file an appeal under Section 30 of the Employees Compensation Act, 1923 (hereinafter referred to as “the Actâ€) seeking enhancement of the

amount of compensation. The appeal has been preferred primarily on the ground that the Commissioner has committed serious error of law and fact in

computing the loss of earning capacity as 28 % on the basis of permanent disability certified by the qualified medical practitioner. It is submitted that

the percentage of disability is different from the loss of earning capacity. The loss of earning capacity, it is contended, would not only depend upon the

percentage of disablement but would depend upon several factors like the nature of disablement and the nature of avocation of the injured. It is, thus,

submitted that on the basis of disability certificate issued by the medical expert and in the light of his oral evidence given with respect to the effect of

disablement on the work and employment of the petitioner, the Commissioner should have independently assessed the loss of earning capacity.

Learned counsel for the appellant in support of his case has relied upon the judgments rendered by a Single Bench of this Court in the cases of United

India Ins. Co. Ltd vs Suresh Kumar and anr, 2016(1) JKJ 1996 and Banarsi Dass vs  Oriental Insurance Co. Ltd, 2017 ACJ 210.

5 On the other hand, learned counsel for respondent No. 1 has raised preliminary objections to the maintainability of this appeal. It is contended that

the appellant having accepted the award and withdrawn the awarded amount cannot be permitted to file the appeal. Learned counsel for respondent

No. 1 also submitted that in the absence of any definite opinion given by the qualified medical practitioner with regard to loss of earning capacity, the

Commissioner committed serious illegality in taking the loss of earning capacity of the appellant as 28 %, which was only the percentage of

disability and not the loss of earning capacity. As a matter of fact, no claim for compensation could have been passed by the Commissioner without

there being on record a certificate of the qualified medical practitioner indicating the loss of earning capacity as may be commensurate to the disability

suffered by the appellant. Learned counsel for respondent No. 1 also urged that the nature of disablement suffered by the appellant is a partial

disablement of temporary nature as it only reduces the earning capacity of the appellant as driver which he was working at the time of the accident.

He drew support from the provisions of Section 2 (g) of the Act.

6 Having heard learned counsel for the parties and perused the record, it needs to be noticed on the threshold that respondent-insurance company

which has satisfied the award has not filed any appeal. The mere fact that it complied with the award passed by the Commissioner and deposited the

awarded amount is in itself sufficient indication that the respondent-insurance company has accepted the award. The respondent-insurance company,

in these circumstances, is not a party aggrieved and the objections raised are taken only to resist the claim of the appellant for enhancement of

awarded compensation.

7 This brings me to the grievance projected by the appellant with regard to the amount of compensation awarded to him. It is not disputed before me

that the appellant at the time of accident was 28 years old and was a driver by profession. He was receiving monthly wages of Rs. 8,000/- per month

from respondent No. 2 under whose employment he was driving the vehicle which met with the accident. The appellant has suffered permanent

disablement of his lower right limb and the same is assessed as 28% by the qualified medical practitioner. True, it is, that in terms of Section 4(1)(c)(ii)

read with explanation 2 appended to the aforesaid subsection, in case of non scheduled injury, the percentage of compensation payable in case of

permanent partial disablement should be proportionate to the loss of earning capacity “as assessed by qualified medical practitioner†permanently

caused by the injury. Giving literal meaning to the words used in the aforesaid provision, it is abundantly clear that loss of earning capacity is required

to be worked out and certified by a qualified medical practitioner and compensation should be assessed by the Commissioner as is proportionate to the

aforesaid certified loss of earning capacity.Â

8 Admittedly, in the case in hand, doctor only certified the nature and percentage of disablement and did not indicate the loss of earning capacity. He,

however, in his statement before the Commissioner, stated that with the disability, the petitioner would have difficulty in squatting, cross leg sitting and

doing heavy work. He has also deposed that the disability would render the petitioner unfit to drive heavy motor vehicle and the light motor vehicle for

longer distance. As is evident from the certificate issued by him coupled with the statement recorded before the tribunal, the doctor has clearly

indicated the percentage of permanent disablement suffered by the petitioner and its impact on the job of the appellant was performing at the time of

accident. In the face of aforesaid material on record, it is not understandable as to how the Commissioner worked out the loss of earning capacity also

at 28%, which was indicated as the percentage of disablement by the doctor. As rightly, contended, the loss of earning capacity and the percentage of

disability are two different things. There could be instances where the permanent disablement may be 50 % or more and the loss of earning capacity

is nil, for example, if a leg of a teacher or a doctor or any other Government employee is amputated and in spite of such amputation, he is able to

perform his duties, it cannot be said that he has suffered any loss in terms of his earning capacity. Similarly, a person, who is privately employed as an

electrician loses one eye in the accident, in such case, he may suffer loss of earning capacity to the extent of 100 % because with the loss of vision of

one eye, he may not be able to perform the duties of electrician. There may be many instances where the percentage of disability may differ from the

loss of earning capacity.Â

9 Going by the statement of the doctor recorded before the tribunal, there is serious impairment of the functioning of the appellant as driver. As has

come in the evidence, the appellant was working as private driver and driving a Tata Sumo (Taxi) of respondent No. 2. With the disablement, he may

not be in a position to take up the same employment which would require him to drive the vehicles for longer distances. He has difficulty in squatting,

cross leg sitting and driving the vehicles for longer distances etc. In such situation, to peg his earning capacity at 28 % would be wholly unjustified, that

too, in the absence of such certification by a qualified Medical Practitioner.Â

As required under Section 30 of the Act, the appellant has not formulated any substantial question of law in the memorandum of appeal, but, as

discussed above, the manner in which the Commissioner of his own has worked out loss of earning capacity of the appellant is perverse. Needless to

say that perversity in itself is a substantial question of law and is sufficient to maintain the appeal under Section 30 of the Act. That apart, in the

aforesaid factual backdrop, following substantial questions of law alsoarise for determination:

Whether an appeal under Section 30 of the Act is maintainable at the instance of workman who has accepted the award and withdrawn the amount

of compensation deposited with the Commissioner?

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 ?

Maintainability of appeal

11 Before proceeding to determine the maintainability of appeal, it would be necessary to reproduced Section 30 of the Act which reads thus:

 “30. Appeals.-

(1)An appeal shall lie to the High Court from the following orders of a Commissioner, namely:--

(a) an order awarding as compensation a lump sum whether by way of redemption of a half- monthly payment or otherwise or disallowing a claim in

full or in part for a lump sum;

(aa)an order awarding interest or penalty under section 4A;

(b) an order refusing to allow redemption of a half- monthly payment;

(c) an order providing for the distribution of compensation among the dependants of a deceased workman, or disallowing any claim of a person

alleging himself to be such dependant;

(d) an order allowing or disallowing any claim for the amount of an indemnity under the provisions of sub- section (2) of section 12; or

(e) an order refusing to register a memorandum of agreement or registering the same or providing for the registration of the same subject to

conditions:Â

Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal and, in the case of an order other than

an order such as is referred to in clause (b), unless the amount in dispute in the appeal is not less than three hundred rupees:

 Provided, further, that no appeal shall lie in any case in which the parties have agreed to abide by the decision of the Commissioner, or in which the

order of the Commissioner gives effect to an agreement come to by the parties:

Provided further that no appeal by an employer under clause (a) shall lie unless the memorandum of appeal is accompanied by a certificate by the

Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed againstâ€​

12 As is apparent from bare reading of Section 30 of the Act, an order passed by the Commissioner under the Act is appealable before this Court.

However, no appeal shall lie to this Court in the following circumstances:

i. If there is no substantial question of law involved;

ii. If the amount in dispute is less than three hundred rupees;

iii. If the parties have agreed to abide by the decision of the Commissioner or in which the order of Commissioner gives effect to an agreement

between the parties, and;

iv If the memorandum of appeal is not accompanied by a certificate issued by the Commissioner to the effect that the appellant has deposited with him

an amount payable under the order appealed against.

13 Learned counsel appearing for the respondents has assailed the maintainability of appeal under the second proviso to Section 30 of the Act which

provides that no appeal shall lie where the parties have agreed to abide by the decision of the Commissioner. It is stated by the learned counsel that

pursuant to the award passed, the amount was deposited by the respondents which the appellant has withdrawn without any protest and thereby

deemed to have agreed to abide by the decision of the Commissioner.

14 I am not impressed by the argument of the learned counsel for the respondents for the simple reason that the proviso relied upon by him provides

that if the parties before the Commissioner, in writing or otherwise, agree to abide by the decision of the Commissioner and ultimately the

Commissioner renders his decision on such agreement,the parties cannot be allowed to backtrack or resile from the agreement so made. It is not the

case of the parties that they ever agreed before the Commissioner that they would abide by the decision of the Commissioner. The award in the case

was passed by the Commissioner after a contest between the parties. The respondents complied with the award and deposited the amount.

15 It is true that the appellant withdrew the amount of compensation and then filed the appeal. Be that as it is, the fact remains that Section 30 does

not put a clog on the right of a party aggrieved to file an appeal after it has withdrawn the amount of compensation. The appeal is not maintainable

only if there is an agreement submitted by the parties before the Commissioner that they would abide by the ultimate decision that would be taken by

the Commissioner. The stage of making such agreement is prior to the passing of the award and not subsequent thereto. This is how the second

proviso to Section 30 relied upon by the respondents needs to be understood. This provision is similar to the provision made in the Code of Civil

Procedure providing no appeal against compromise decree.

16 Having held thus, I do not find any substance in the objection taken by the respondents with regard to the maintainability of the appeal. Hence, the

question is accordingly answered in favour of the appellant and against the respondents.

Power of Commissioner to fix the loss of earning capacity in theabsence of certificate of medical expert

17 To deal with this question, 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;Â

(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 medical practitioner) permanently

caused by the injury;

(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€​. Â

18 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.Â

19 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.Â

I have carefully gone through the judgments relied upon by the learned counsel for the appellant in cases titled United India Ins. Co. Ltd vsÂ

Suresh Kumar and anr and Banarasi Dass vs Oriental Ins. Co. Ltd. In the aforementioned cases, the issue with regard to the significance of

amendment made to Section 4(1)(c)(ii) by Act of 22 of 1984, whereby the words “ as assessed by a qualified medical practitioner†were

inserted, was not subject matter of consideration. Therefore, the judgments aforesaid are not applicable to the case in hand.Â

21 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.Â

22 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 189. 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€​.

23 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€​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 No.2.Â

25 In view of the foregoing discussion and the answers given to the formulated questions, 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 appellant 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 appellantworkman. It is stated that the

appellant has already withdrawn the awarded amount. The amount, if any, received by the appellant shall be subject to adjustment in the amount that

may be ultimately awarded by the Commissioner. Â