Andhra HC (Pre-Telangana)
Management, M/S. Sirishad ... vs C.P. Ravinder And Another on 16 February, 2000
Equivalent citations: 2002ACJ761, II(2000)ACC191, 2000(3)ALD51, 2000(3)ALT196, [2000(86)FLR1011], (2000)IILLJ304AP
JUDGMENT
1. This appeal is filed by the employer against the order of the Commissioner for Workmen's Compensation, Rangareddy District Zone, Hyderabad (hereinafter referred to as 'the Commissioner') passed in WC Case No. 13 of 1993 dated 24-6-1994 in awarding the compensation of Rs.71,347.50 to the 1st respondent herein.
2. Brief facts of the case are that on 24-6-1991, while the 1st respondent was operating the miller mixer of the appellant suddenly, the vibrator, was required to be repaired and the Site Engineer Srinivasa Rao asked the 1st respondent to start to Pylon for repairing the vibrator, and the Site Engineer took him to Pylon on the scooter from Jetty site; and after attending the repairing work, again he took him to Hill Colony to the site on the scooter; and while he was on the back seat holding the vibrator, and the said Srinivasa Rao was driving the scooter and on approaching the Hill Colony, the scooter met with an accident and the 1st respondent sustained injuries all over the body. It is further submitted in the application by the 1st respondent before the Commissioner that he was aged 32 years and he was getting Rs.60/- per day and after treatment, he approached for duty, but the appellant did not permit him to join duty, and therefore, he is entitled for the compensation of Rs.1,09,125/-.
3. The accident took place on 24-6-1991. The petition was filed on 9-2-1993. The 1st respondent examined himself as AW1 and stated that he was hospitalised for four days, and later, he has taken private treatment, as there was no Orthopaedic Department in the Government Hospital. He did not describe the nature and description of the injures, but he has filed Exs.A1 to A8. In the cross-examination, it is stated that he was not given any treatment for any operation and there is no report to show that he had undergone any operation or treatment regarding the disability. He has stated that it is not true to suggest that he was deaf from the beginning. According to Ex.A1, he was admitted in the hospital on 24-6-1991 at 11.15 a.m. and discharged on 27-6-1991 at 6.00 p.m. In Ex.A8 issued by the Civil Surgeon, ENT Hospital on 26-8-1993, it is stated that the patient has an hearing loss of 20% decibles in the hearing range in the right ear and it is socially acceptable. There is one document dated 5-9-1991 without any address issued by Mr. Dr. Ram, MS (Osm), FRSH (London), FAIMS, Consultant, Orthopaedic Surgeon and the said Certificate is a printed one, in which, it is stated that the nature of disability is multiple injuries on leg rear hip and the extent of disability is 50%. The said document is not at all marked as an exhibit. This is all the evidence adduced on behalf of the 1st respondent. On behalf of the apepllant, one Mr. C. Kantha Rao was examined as RW1.
4. The Commissioner, based on the oral and documentary evidence, came to the conclusion that the 1st respondent was employed by the appellant on his miller as operator and he sustained injuries during the course of the employment. As far as the said finding is concerned, it is a finding of fact and I am not inclined to interfere with the said finding of fact.
5. With regard to the finding as to whether the applicant (1st respondent herein) sustained permanent disability and whether the appellant is liable to pay compensation and if so at what rate, the Commissioner relied upon a document, which is not at all marked as one of the exhibits, said to have been certified by one Mr. Dr. A, Ram, who was not at all examined. Though the said document was not marked as an exhibit, the Commissioner stated that it is marked. It is not known which exhibit. The total exhibits are Al to A8 alone and it is not one of the marked documents. Therefore, relying upon the said document and arriving at a conclusion based on the said certification that the permanent disability is 50%, is without any basis and irrational. Even according to the said scrap of paper, it is not described as to what is the type of the injury. There is no basis for stating that there is 50% of loss of earning capacity based on the said certificate. Another document relied upon by the Commissioner is Ex.A8. In Ex.A8, the ENT Doctor stated that there is a hearing loss of 20% decibles in the hearing range in the right ear and it is socially acceptable; That means, the 1st respondent is in a position to hear and as far as the other ear is concerned, it is perfectly all right. As per Part I of Schedule I of the Workmen's Compensation Act (for short 'the Act'), if there is absolute deafness, then, cent per cent loss of earning capacity is to be taken. Therefore, none of the certificates mention the injuries to assess the percentage of loss of earning capacity as per Parts I and II of Schedule T of the Act. These are not the injuries for the purpose of calculating the compensation as per Section 4(1)(c)(i) of the Act, and therefore, if at all any injuries are caused to the 1st respondent and as they are not specified in Schedule I, he is entitled to 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 injuries as contemplated under Section 4(1)(c)(ii) of the Act. The amount of compensation shall be arrived at in this particular case as per Section 4(1)(c)(ii) of the Act and 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. In this particular case, no doctor has been examined and there is no specific certificate with regard to the loss of earning capacity in the opinion of a doctor. Therefore, the order of the Commissioner holding that the 1 st respondent has suffered the loss of earning capacity to he extent of 70% and he is entitled to receive compensation in proportion to 70%, is contrary to Section 4(1)(c)(ii) of the Act.
6. The questions raised by the appellant are that the Commissioner failed to see that as per Ex.A1, the 1st respondent was medially fit to work and even according to the application before the Commissioner, he joined duty, and therefore, it cannot be said that he has sustained permanent loss of earning capacity by 70% and the so-called certificate of Dr. A. Ram was not at all marked and without marking the document and without properly considering Ex.A8, the Commissioner has wrongly came to the conclusion that the loss of earning capacity is 70%. In the absence of a certificate of percentage of the proportionates disability as assessed by the qualified medical practitioner, assessing the percentage of compensation payable in proportion to the loss of earning capacity taking into consideration the injury, the Commissioner cannot arrive at the conclusion. Therefore, the questions raised by the learned Counsel for the appellant are substantial questions of law. In support of the contentions, the learned Counsel for the appellant relied upon a judgment of this Court in New India Assurance Company Limited v. Samayya, . In the said case, relying upon a Full Bench judgment of the Kerala High Court in New India Assurance Company v. Sridharan, , a learned Judge of this Court held that in the absence of a certificate by a doctor with regard to the actual loss of earning capacity, the Commissioner cannot conclude the percentage of loss of earning capacity in respect of the injuries specified under Section 4(1)(c)(ii) of the Act. It is further held that a particular procedure has been prescribed in the Statute and any departure from the statutorily fixed procedure should tantamount to an error of law, and therefore, it cannot be said that the appeal filed by the appellant is not maintainable, inasmuch as substantial question of law arises for consideration. The question raised in this appeal is a substantial question of law, as the Commissioner has totally ignored the provisions of Section 4(1)(c)(ii) of the Act.
7. However, the learned Counsel for the 1st respondent submits that there is no substantial question of law that arises for consideration in this appeal. In support of his contention, he relied upon a judgment of this Court in Ranga Cotton Ginning Mills v. G. Ratna Kumari, , wherein it was held that "Pure finding of fact cannot be challenged in appeal, unless it is based on no evidence. Appeal can be maintained, if appreciation of evidence is perverse and opposed to accepted principles".
In the case on hand, the appreciation of evidence, i.e., Ex.A8 and the so-called certificate issued by Dr. A. Ram, which is not at all marked as an exhibit, is totally perverse and contrary to the statute, and therefore, the said judgment has no application to the facts of the case on hand.
8. For the fore-going reasons, I allow this appeal setting aside the order of the Commissioner and remand the matter to the Commissioner with a direction to dispose of the application strictly in accordance with the Act and Rules framed thereunder after affording an opportunity to all the parties concerned to lead additional or fresh evidence, within a period of three months from the date of receipt of a copy of this order.
9. It is submitted that pursuant to the order of the Commissioner, the entire amount of compensation has been deposited and half of the amount has been withdrawn by the 1st respondent. As the order of the Commissioner has been set aside, the appellant may be permitted to withdraw the amount in deposit with the Commissioner. The amount already withdrawn by the 1st respondent will be subject to further orders that may be passed in the application by the Commissioner. Appeal is accordingly allowed. No costs.