| CMA 470 / 2013 |
| CMASR 72317 / 2002 |
|
| PETITIONER | | RESPONDENT |
| A.ANJAIAH,AKKAPOOR,NIZAMABAD | VS | BR.MNGR,NEW INDIA ASSU.CO.LTD,KAMAREDY&A |
| PET.ADV. : JANARDHAN REDDY | | RESP.ADV. : KOTA SUBBA RAO |
| SUBJECT: W.C.ACT & E.S.I. ACT | | DISTRICT: NIZAMABAD |
|
published in http://164.100.12.10/hcorders/orders/2013/cma/cma_470_2013.html
THE HON'BLE SRI JUSTICE P.NAVEEN RAO
CMA Nos.177, 187, 249, 263 of 2003
C.M.A No. 2819 OF 2004,
C.M.A. No.177 OF 2009
&
CMA Nos.470 AND 471 OF 2013
COMMON JUDGMENT:
All the CMAs arise out of the orders passed by the Commissioner for Workmen’s’ Compensation and Assistant Commissioner of Labour, Nizamabad (hereinafter referred to as “the Commissioner”) in individual cases relating to same incident. Common issues arise for consideration in all the appeals and hence are disposed of by a common order. Parties are referred to as arrayed before the Commissioner.
2. C.M.A Nos.177, 187, 249 and 263 of 2003 are filed by the New India Assurance Company Limited challenging the awards passed by the Commissioner granting compensation to the applicants. CMA Nos. 2819 of 2004, 177 of 2009, 470 and 471 of 2013 are filed by the claimants seeking enhancement of compensation. The appeals are directed against W.C. Nos. 356, 357, 359, 360 and 361 of 1997.
3. Against W.C. No. 356 of 1997, two appeals are filed. C.M.A No.177 of 2003 is filed by the Insurance Company and CMA No.471 of 2013 is filed by the claimant seeking enhancement of compensation. Claimant is the first respondent in CMA No.177 OF 2003. The claimant is the driver on the Tractor and Trailer Nos. AP 28T 562 and AP 28 T 563 and was aged 31 years. The injury caused to right leg knee and Doctor assessed the disability caused as 30% permanent partial disability. Total claim is for Rs.2.00 lacs and the commissioner awarded Rs.74,124/-.
4. Against W.C. No. 359 of 1997, two appeals are filed. CMA No.263 of 2003 is filed by the Insurance Company and CMA No.470 of 2013 is filed by the labourer seeking enhancement of compensation. He is the 1st respondent in CMA No.263 OF 2003. As per the doctor certificate 35% permanent partial disability was assessed. The claimant was aged 25 years. The total claim is for Rs.2.00 lacs and the amount awarded is Rs.81,992/-.
5. CMA No.2819 of 2004 is filed against WC No.361 of 1997 by the claimant seeking enhancement of compensation. The claimant is a labourer on Tractor bearing No.AP-28T-562 and 563. The claimant was aged 45 years. He suffered mall united fracture of both bones of right leg. As per the certificate there is a partial permanent disability. The certificate was issued based upon the M.C.Bridge Scale. Total claim is for Rs.2.00 lacs and the amount awarded is Rs.1,28,097/-.
6. CMA No.187 of 2003 is filed against WC No.357 of 1997 by the Insurance Company. The claimant is the labourer and was aged 25 years. The doctor has assessed permanent partial disability at 25%. The total claim is for Rs.2.00 lacs and the amount awarded is Rs.58,566/-.
7. Against W.C. No. 360 of 1997 two appeals are filed. CMA No.249 of 2003 is filed by the Insurance Company. The claimant filed CMA No.177 of 2009 seeking enhancement of compensation. The claimant was aged 28 years and was a labourer. The disability assessed by the doctor was at 20%.The total amount claimed is Rs.2.00 lacs and the amount awarded is Rs.68,620/-.
8. The facts which are not in dispute are that the Tractor and Trailer Nos. AP28T-562 & AP28T-563 respectively owned by the opposite party No.1 before the Commissioner met with an accident on 25.03.1997. On the said day, the Tractor with Trailer was proceeding with labourers from Akkapoor village to Kamareddy and when the vehicle reached the limits of Laxmiravullapally village on a road leading from Kamareddy to Sirsilla B.T.road, the driver could not negotiate the turn in the road, as a result of which, the Tractor & Trailer rolled down, turned turtle and the labourers sustained multiple injuries in the said accident.
9. Since no compensation was paid by the owner due to the injuries caused and loss of earnings, the driver and the labourers instituted workmen compensation cases before the Commissioner, Nizamabad. The owner and the insurance company are arrayed as opposite parties 1 and 2 respectively. On detailed consideration of the evidence on record, the Commissioner passed orders granting compensation to the applicants.
10. Learned counsel for the respondent Insurance Company made three fold submissions
(a) that the entire proceedings are vitiated since no notice was given as mandated by Sec.10 of the Employees (Workmen’s) Compensation Act;
(b) that the Commissioner erred in taking the disability as certified by the Doctor though the injuries caused to the applicants are simple in nature and the certificates were not issued by the same doctor who treated them;
(c) that the compensation awarded by the Commissioner is not proportionate to the loss of earning capacity of the applicants.
11. The learned counsel for the applicants contend that proceedings cannot vitiate on the ground of non-compliance of provision in Section 10(1) of the Act; and that the compensation awarded by the commissioner is not commensurate to the loss of earning capacity. Thus, he prayed for dismissal of appeals filed by the insurance company and to allow the appeals filed by the claimants.
12. In the light of submissions made by the counsel for petitioners and opposite party- Insurance Company, the issues that arise for consideration are:
i) Whether non-compliance of provision in Section 10(1) vitiates the
proceedings?
ii) Whether non-issuance of certificate of loss of earning capacity by
the Doctor vitiates the determination of compensation?
iii) Whether the compensation awarded was excess / not commensurate to the loss of earning capacity suffered by the claimants?
ISSUE No. 1
13. The learned counsel for the appellant-Insurance Company contends that the entire proceedings are vitiated on the ground that there was no intimation/ prior notice of the accident to the Insurance Company before instituting claim.
Relevant provision of Section 10(1) of the Employees’ Compensation Act, 1923 (for short the Act) reads as under:
“(1) 1[ No claim for compensation shall be entertained by a Commissioner unless notice of the accident has been given in the manner hereinafter provided as soon as practicable after the happening thereof and unless the claim is preferred before him within 2[ two years] of the occurrence of the accident or, in case of death, within 2[ two years] from the date of death:]
……..
………
Provided further, that the Commissioner may 2[ entertain] and decide any claim to compensation in any case notwithstanding that the notice has not been given, or the claim has not been 3[ preferred], in due time as provided in this sub- section, if he is satisfied that the failure so to give the notice or 4[ prefer] the claim, as the case may be, was due to sufficient cause.”
14. According to fifth proviso to Sec. 10(1) of the Act, discretion is vested in the Commissioner to entertain and decide the claim for compensation even though no notice was given, subject to his satisfaction of sufficient cause for not giving such notice. There is no absolute bar in entertaining claim petitions without fulfilling the mandate of prior notice to Insurance Company. The fifth proviso vests discretion in the Commissioner to entertain claim petitions directly without prior intimation of the accident to the Insurance Company. This discretion was exercised by the Commissioner in entertaining an application for claim of compensation and adjudicating the matter. There was no illegality in the Commissioner exercising such discretion. It is also relevant to notice that on maintainability of the claim no objection was raised before the Commissioner. The respondent insurance company allowed the proceedings to be finalized and invited an award against it. The infirmity is not so fatal to vitiate the entire proceedings on that ground alone. Further more accepting his contention at this distance of time would result in redoing the entire exercise, which is not in the interest of hapless claimants. Hence, this contention of the appellants on the maintainability of claim without prior notice is rejected.
ISSUE No. 2:
15. Section 4 of the Workmen's Compensation Act, 1923 prescribes assessment in cases of death, total disablement, permanent, partial disablement. Insofar as this case is concerned, para “C” of Table under Section 4 of the Act, applies which reads as under:
“(c) Where permanent/partial disablement results 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.”
Explanation II appended to Section 4 of the Act, reads as under:
“Explanation II: In assessing the loss of earning capacity for the purposes of sub-clause (ii), the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity, in relation to different injuries specified in Schedule I;”
16. The above provision makes it clear that it is not necessary that assessment of disability and loss of earning capacity should be issued by the same Medical Officer, who attended the employee while treating him on the injuries caused to him. The section mandates such assessment only by a qualified medical practitioner.
17. In CHARAN SINGH Vs. VITTAL REDDY AND ANOTHER, this Court considered the necessity of same Doctor who treated the accident victim issuing the certificate of disability and loss of earning capacity. Interpreting the relevant provisions of the Workmen's Compensation Act, 1923
, a Division Bench of this Court held as under:
“13. It is also pertinent to state that the Workmen’s Compensation Act is a beneficial piece of legislation conceived in the interest of the workmen, who are the victims of accidents arising out of and in the course of employment and the Act provides for cheaper and quicker disposal relating to compensation through Special Tribunals. The procedure is contemplated under part –V of the Act and the Rules framed thereunder are summary in nature. The Commissioner while passing the Orders shall record concisely a judgment, giving findings on each issue and reasons for such finding. Under Schedule-I, a legal fiction is created by the Legislature wherein injuries referred to in the said Schedule are deemed to result in permanent disablement vis-Ã -vis the percentage of loss of earning capacity. Thus, the statute itself simplified the process of calculation of loss of earning capacity with reference to the scheduled injuries. While, in case of non-scheduled injuries resulting in permanent partial or total disablement, the assessment by qualified Medical Practitioner is necessary as required under Section 4 ( c) (ii) of the Act. The words “Qualified Medical Practitioner” is also defined under Section 2 (1) (i) which means “any person registered under any Central Act, Provincial Act or any Act of the Legislature of a State providing for the maintenance of a register of medical practitioners, or, in any area where no such last mentioned Act is in force, any person declared by the State Government, by notification in the Official Gazette, to be a qualified medical practitioner for the purpose of this Act.
14. Thus, when the Section is very clear and specific regarding the assessment to be made by a qualified medical practitioner, there is no reason to import additional meaning so as to mean that the qualified medical practitioner should be one, who has treated the injured workman. A provision in 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 statute. Thus, if Section 4 is read with reference to Schedule-I, the inevitable conclusion is that in case of non-scheduled injuries, the percentage of total disablement as is proportionate to the loss earning capacity has to be assessed by the qualified medical practitioner and it is not necessary that the Doctor, who treated the workman should be the only assessing authority. It is also not in dispute that the doctor, who was examined before the Commissioner fell within the definition of qualified medical practitioner.
15. Under those circumstances, we are of the considered view that Section 4 (1) (c ) does not stipulate a requirement of assessment by the medical practitioner who had treated the workmen concerned at the first instance. It is always open for the qualified medical practitioner to assess the loss of disability vis-Ã -vis loss of earning capacity with reference to the injuries sustained by him and if the employer or the Insurance Company was not satisfied with the assessment made by the medical practitioner, whose evidence was produced, contra evidence ought to have been adduced by the Insurance Company to rebut or impeach the evidence of the medical officer adduced on behalf of the workmen. In the absence of such evidence, we cannot find fault with the order of the learned Commissioner.”
18. Section-4 of Employees’ Compensation Act, prescribes method of determination of compensation where injuries are not specified in schedule 1. Section-4(1)(c)(ii) provides for determination of loss of earning capacity.
Relevant provision of the Section reads as under:
“(c) Where permanent partial disablement results from the injury.
(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 (emphasis supplied) permanently caused by the injury.
Explanation II: In assessing the loss of earning capacity for the purpose of sub clause (ii), the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in relation to different injuries specified in Schedule I.
19. Above provision mandates a clear certificate to be issued by the Medical Practitioner on the loss of earning capacity. Having due regard to the provision contained therein, as evident from the record no such certificate is issued by the medical Officer in all these M.V.O.Ps. In identical circumstances, learned single Judge of this Court in the case of NEW INDIA ASSURANCE COMPANY LIMITED, HYDERABAD v. MOHA.AKBER KHAN held that if no specific certificate is issued by the Medical Officer on the loss of earning capacity, the disability has to be taken as the basis to determine the loss of earning capacity.
20. In view of the statutory mandate and the law declared by Division Bench of this Court in CHARAN SINGH case, and the case ofMOHD AKRAM KHAN the contention of the appellant that only the medical officer who has examined the employee alone has to issue certificate of disability and the loss of earning capacity and that unless there is a certificate of loss of earning capacity by a medical officer, compensation cannot be determined based on certificate of disability is rejected.
ISSUE No. 3 :
21. On the issue of awarding of proportionate compensation vis-Ã -vis the nature of injury and the loss of earning capacity, this Court rendered judgment on 24.04.2013 in CMA No.856 of 2001 & batch. This Court has reviewed the entire case law on the subject of loss earning capacity and the nature of compensation that can be awarded. On consideration of various judgments of the Apex Court and this Court on the subject, this Court culled out the principles which govern the cases on the subject.
Para-26 of the judgment reads as under:
The following principles can be culled out from the above decisions of the Supreme Court and this Court:
(a) All injuries or permanent disabilities arising from injuries do not result in loss of earning capacity.
(b) Where permanent partial disablement results from an injury and the said injury is specified in Schedule I, it would be covered by Section 4(1)(c)(i) of the Act. In such a case, the workman would be entitled to such percentage of 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;
(c) Where permanent partial disablement results from an injury and the injury is not specified in Schedule I, it would be covered by Section 4(1)(c)(ii) of the Act. In such a case, the workman would be entitled to such percentage of compensation which would have been 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) In assessing loss of earning capacity in a case of permanent partial disablement resulting from an injury not specified in the Schedule I, the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in relation to different injuries specified in Schedule I.
(e) The opinion of the medical practitioner as to the percentage of loss of earning capacity would be normally binding on the court where permanent partial disablement results from an injury not specified in Schedule I.
(f) The importance of medical evidence is only in case where disablement in performing duties which the workman was performing earlier cannot be decided without the aid of medical evidence. In case where it can be so decided with or without medical evidence (like amputation of limbs), medical evidence is not relevant and the question of the victim not suffering specified injuries is also not relevant.
(g) Loss of earning capacity is not a substitute for percentage of physical disablement and is only one of the factors taken into account.
(h) The loss of earning capacity arising from a permanent disability may be different from the percentage of permanent disability. Equating the percentage of loss of earning capacity to the percentage of permanent disability would result in the award of either too low or too high a compensation. What requires to be assessed is the effect of permanent disability on the earning capacity of the injured. This involves ascertainment of what activities the claimant can carry on in spite of permanent disability and what he could not do as a result of the permanent disability; ascertainment of his avocation, profession and nature of work before the accident and also his age; and finding out whether he is totally disabled from earning any kind of livelihood (or) whether in spite of permanent disability, he can still effectively carry on the activities and functions, which he was earlier carrying on (or) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. In para.14 of Raj Kumar (17 supra) and in para.8 of Mohan Soni (25 supra) appropriate guidance is available.
(i) The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Commissioner/Court with reference to the evidence in entirety.
(j) Where a claimant is a workman who suffered injuries in an accident and his employer either provides for pension after retiring the workman on the grounds of medical invalidation or the dependants of the claimant are given appointment on compassionate grounds, he has a duty to disclose these facts and they would have a material bearing on the ascertainment of the percentage of loss of earning capacity.
(k) It is a question of fact in each case whether there is permanent total disablement on account of the injuries suffered by the claimant. In a given case, the loss of earning capacity caused by an injury can amount to 100% disablement. But, if the injured claimant is in a position to earn a living by doing a job other than the one which he was doing at the time of his accident, he cannot be said to have suffered 100% disability.
(l) Any scaling down of the compensation should require something more tangible than a hypothetical conjecture that notwithstanding the disability, the victim could make up for the loss of income by changing his vocation or by adopting another means of livelihood. The party advocating for a lower amount of compensation for that reason must plead and show before the Tribunal that the victim enjoyed some legal protection (as in the case of persons covered by the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995) or in case of the vast multitude who earn their livelihood in the unorganized sector by leading cogent evidence that the victim had in fact changed his vocation or the means of his livelihood and by virtue of such change he was deriving a certain income.”
22. In view of the above principles, the loss of earning capacity is relatable to the nature of injuries suffered by the workman and disability resulted in such injury in undertaking the nature of work. In each of the cases, the Commissioner has considered the medical certificate of disability (marked as Ex.A3 in each case) and the evidence of Medical Officer who examined the workmen to determine the compensation. Thus there was no illegality in the decision of the Commissioner on the principle adopted by him in determining the quantum of compensation warranting interference by this court.
23. In so far as the applicant in W.C.No.356 of 1997 (CMA No. 177 of 2003 and CMA No. 471 of 2013) , the doctor deposed that there was traumatic stiffness of right knee, painful and restricted movement. The doctor deposed that on assessment of the injuries he has assessed the disability as 30% permanent disability and also stated the loss of earning capacity as 30%. No contradictory material is placed on record before the Commissioner to disprove the nature of disability, injuries suffered by the workman and disability as certified by the medical officer. Based on evidence on record, the Commissioner had come to the conclusion that the individual has suffered 30% loss of earning capacity and determined the amount of compensation payable to the individual as Rs.74,142/-. Even now no material is placed on record to nullify the finding recorded by the Commissioner and to disprove the nature of injuries suffered by the workman. Learned counsel for appellant has not brought any new material in support of claim for enhancement. Therefore I reject the contention of the learned counsel for the claimant and opposite party insurance company and the compensation arrived by the Commissioner is just and valid and hence the appeals are dismissed.
24. The applicant in WC CASE No 361 of 1997 filed CMA.No.2819 of 2004 seeking enhancement of compensation. In support of his claim for enhancement of compensation, counsel for the applicant contended that in view of the deposition of Medical Officer that there was malunited fracture of both bones of right leg, painful and restricted movements of ankle knee joint shortening of leg by 2 inches, loss of earning capacity ought to have been assessed as 100% to arrive at just compensation. The Commissioner has determined the loss of earning capacity based on the medical certificate of disability assessed as 70 %. I see no error in the decision of the Commissioner. Hence, CMA 2819 of 2004 is dismissed.
25. CMA.187 of 2003 is filed by Insurance company in W.C.No.357 of 1997. Applicant is a labourer and he was travelling in the Tractor and Trailer which met with an accident. In the accident, he suffered injuries. The Medical Officer certified that it amounts to traumatic stiffness of the left shoulder, painful and restricted movements of shoulder joint. Medical Officer has assessed the disability as 25% permanent partial disability. Medical Officer deposed that the applicant cannot do labour work with the above disability. On consideration of the material on record, the Commissioner determined the compensation based on the disability certificate of the Medical Officer to arrive at the amount of loss of earning capacity. I am of the opinion that the compensation awarded is just and reasonable. Hence, C.M.A No. 187 of 2003 is dismissed.
26. CMA.No.249 of 2003 is filed against the order in W.C.No.360 of 1997 by the insurance company and C.M.A No. 177 of 2009 is filed by the claimant. The applicant is a labourer travelling on Tractor and Trailer which met with an accident. In the accident, applicant suffered injuries which are described by the Medical Officer as Traumatic stiffness of the right knee joint, painful and restricted movement of knee joint, blunt injury of chest. The Medical Officer has assessed the disability as 30% permanent partial disability. Considering the evidence on record and based on the Medical Certificate of disability, the Commissioner has` awarded compensation of Rs.68,619.96. I am of the opinion that compensation awarded is just and reasonable. There is no merit in the contention of respondent insurance company, hence C.M.A No. 249 of 2003 is dismissed. The Commissioner has followed the disability suffered by claimant as certified by the Medical Officer to determine the compensation. No basis is shown to enhance the compensation. Hence, C.M.A No. 177 of 2009 filed by claimant also fails and hence dismissed.
27. CMA.No.263 of 2003 is filed challenging the award of the Commissioner in W.C.NO.359 of 1997. Seeking enhancement of compensation, the applicant filed C.M.A.No.470 of 2013.
The applicant is a labourer travelling on the Tractor and Trailer. When the Tractor met with an accident, the applicant suffered injuries. Medical Officer who examined the applicant has certified the nature of injuries suffered by him as blunt chest injury, painful movements of scapula left described that he has difficulty in breathing. The Medical Officer has assessed the disability as 35% permanent partial disability. Considering the evidence on record, the Commissioner has assessed the compensation based on the disability certified by the Medical Officer and arrived at the compensation amount of Rs.81,992/-. There is no merit in the appeal filed by the insurance company. The claimant has not made out a case for enhancement of compensation. It cannot be said that compensation awarded by the Commissioner is not just and reasonable. Hence, appeal filed by the claimant also fails.
28. The issues are answered accordingly and C.M.A. Nos. 177, 187, 249 and 263 of 2003 filed by the insurance company and C.M.A. Nos. 2819 of 2004, 177 of 2009, 470 and 471 of 2013 filed by the claimants are dismissed.
No order as to costs.
________________
P.NAVEEN RAO,J
DATE:07-06-2013
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THE HON'BLE SRI JUSTICE P.NAVEEN RAO
CMA Nos.177, 187, 249, 263 of 2003
C.M.A No. 2819 OF 2004,
C.M.A. No.177 OF 2009
&
CMA Nos.470 AND 471 OF 2013
Date: 7-6-2013
