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Divisional Manager, J&K SFC v/s Bansi Lal

    MA. No. 781 of 2010 & IA. No. 1229 of 2010

    Decided On, 23 July 2018

    At, High Court of Jammu and Kashmir

    By, THE HONOURABLE MR. JUSTICE SANJEEV KUMAR

    For the Appellant: Vipin Gandotra Advocate. For the Respondent: M.P.Gupta, Advocate.



Judgment Text

1. Divisional Manager, J&K State Forest Corporation, Division Bhaderwah is in appeal against the award dated 22.10.2010 passed by the Commissioner Employees Compensation Act (Assistant Labour Commissioner), Doda(hereinafter referred to as 'Commissioner') in File No.82-I titled 'Bansi Lal vs Divisional Manager SFC Division Bhaderwah.

2. 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 Act') are that, on 03.12.2005, the respondent-workman while working in Compartment No. 73 of SFC Division Bhaderwah met with an accident and received grievious injuries as a result of which he suffered permanent disablement to the extent of 70%. He laid a claim for compensation before the Commissioner against the employer i.e the appellant herein. In the claim petiton, it was claimed that the respondent-workman at the time of accident was earning Rs.130/- per day and accident took place under and in the course of employment of the appellant. The respondent-workman also claimed that at the time of accident he was 42 years old.

3. With a view to substantiate his claim, the respondent-workman, besides examining himself , also produced witnesses namely Mohd Din and Dr. N.D.Dar, Medical Officer District Hospital Doda. The appellant produced one witness in rebuttal besides entering into the witness box himself.

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4. On the basis of evidence of the parties, the Commission found that the respondent was 42 years old at the time of accident and was earning Rs.3000/- per month. Doctor had certified permanent disablity of the respondent as 70%. Admittedly, there was no certificate by the qualified medical practitioner with regard to the loss of earning capacity of the respondent-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 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 70%. Admittedly, this finding of fact is not suported by any material on record.

5. 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 as 70%. 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.

6. 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 '?

07. 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:

4. 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 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)'.

08. 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.

09. 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.

10. 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.

11. 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 practitioner' 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 into Section 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 therein'.

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.'

13. 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.

14. 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 practitioner' were not subject matter of discussion and adjudication in the aforementioned case.

15. 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 medically examined by