Karnataka High Court
Oriental Insurance Co. Ltd. vs Mohammed Haneef on 24 February, 1995
Equivalent citations: [1995(71)FLR726]
JUDGMENT Mohan Kumar, J.
1. The Insurance Company has filed this Appeal against the award of compensation by the Workmen's Compensation Commissioner with respect to an employment injury suffered by the claimant, namely, fracture of a bone of the leg while he was unloading manure.
2. The facts of the case are not in dispute. The worker has suffered a non-schedule injury is also not in dispute. The quantum of compensation payable has been assessed by the Commissioner on the basis of assessment made by him relying Ex. P-3. The contention of the appellant is that the worker has not produced any Medical Certificate estimating the loss of earning capacity suffered by the claimant, due to the accident. The question therefore raised and argued at length in the Appeal is the right of the adjudicating authority to assess the quantum of compensation independently under Section 4(1)(c)(i) of the Workmen's Compensation Act, 1923.
3. The Counsel for the respondent raised a preliminary objection regarding the maintainability of the Appeal. According to him, the essense of the attack made by the appellant relates to the quantum of compensation awarded and therefore, the insurer is not entitled to challenge the same by filing the Appeal. He relied on the Decision of this Hon'ble Court in New India Assurance Co. Ltd. v. Raja Naika ILR 1992 KAR 1325. The reasoning therein is that, the policy of insurance is issued under the Motor Vehicles Act and Section 149 of the said Act restrict the grounds of contention of the Insurer in a proceedings claiming compensation. Section 146 of the Act commands that no motor vehicle shall be plied in a public place unless it is insured. Therefore the liability of the insurer has directly arisen out of the Motor Vehicles Act. If the proceedings for compensation are initiated under the Motor vehicles Act with respect to the liability created under the Insurance Policy then Section 149(2) will step in and prevent the insurer from urging any contention other than those mentioned therein. Therefore, it cannot be said that, if proceedings are initiated under the Workmen's Compensation Act, 1923 with respect to the same liability under the very same policy, the insurer has unbriddled right to urge all contentions. The restriction placed by virtue of Section 149(2) is on the rights of the Insurer of the policy referred to under Section 146 and that restriction should apply irrespective of the forum. Hence, the preliminary objection of the learned Counsel for the respondent should be upheld.
4. But, according to the Counsel for the appellant, he submits that the effect of his contention in essence is "Compensation or no Compensation". He submits that if his contention that the Workmen's Compensation Commissioner ('Commissioner' for short) has no independent power to assess the compensation of his own accord, then the award made by him cannot be sustained; the quantum of compensation according to him is only subsidiary. On the contrary, if the Commissioner has independent power so to do, then the award may have to be sustained; the quantum has to be sustained in the light of what is stated in the preceding paragraphs. We will therefore proceed to examine the contention of the appellant keeping this in mind.
5. The order impugned herein was passed subsequent to the amendment of Section 4 of the Act in 1984. The accident also took place in 1992. The claim made by the claimant is under Section 4(1)(c)(ii) of the Act. The Section reads thus :
"(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 I :- Where more injuries than one are caused by the same accident, 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 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 percentage of loss of earning capacity in relation to different injury specified in Schedule I."
The Section makes it clear that the assessment of compensation under the Act, in case of a non-schedule injury which has resulted in a permanent partial disablement, shall be proportionate to loss of earning capacity. The loss of earning capacity shall be assessed by the qualified Medical officer. It states that the compensation that an employer is liable to pay under Section 3 of the Act is proportionate to loss of earning capacity permanently caused by the injury. Explanation II to Section indicates as to how the qualified medical Practitioner shall assess the percentage of loss of earning capacity.
6. Now, has the Commissioner any independent power to settle the amount of compensation payable to a workman in exercise of his power under the Act ? The answer to this question will have to be seen by adverting to various provisions of the Act.
7. The compensation payable can be paid either by agreement or on the basis of an adjudication made by the Commissioner. By virtue of the provisions of the Act when a worker who comes within the ambit of the Act sustains an injury Section 3 of the Act is attracted and his employer becomes liable to pay compensation. The sustaining of a personal injury by the worker (to put it in other words) earns him the right to receive compensation. The compensation payable to him is also crystalized under Section 4 of the Act. The amount thus calculated can be paid to the claimant as provided in Section 8 of the Act. We will now notice Section 11 which deals with the medical examination of the injured workman. Sub-section (3) thereof lays down the penal consequences if the worker does not submit to medical examination if he has been called upon so to do. The importance aspect is that it is not provided therein that the worker will be issued with a Certificate after the conclusion of the medical examination under Section 11.
8. Now, in the case of disagreement regarding the quantum of compensation payable, the jurisdiction of fix the quantum is conferred on the Commissioner. In this behalf we may advert to Section 19 of the Act which reads thus :
"(1) If any question arises in any proceedings under this Act as to the liability of any person to pay compensation (including any question as to whether a person injured is or is not a workman) or as the amount of duration of compensation (including any question as to the nature or extent of disablement), the question shall, in default of agreement, be settled by Commissioner.
(2) No Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settle, decided or dealt with by a Commissioner or to enforce any liability incurred under this Act."
Thus, the power to settle the compensation including the extent of disability is vested in the Commissioner. This is an exclusive jurisdiction vested in him as can be seen from sub-section (2) thereof. Section 22 of the Act prescribed that the application for compensation shall be made before the Commissioner in the prescribed manner and Rule 20 on wards of the Rules prescribes the procedure. "Prescribed" means prescribed by the Act or the Rules [Section 2(n) of the Act]. Form 'F' and 'C' appended to the Rules are the prescribed forms to make the application. It does not contemplate the production of any Medical Certificate indicating the loss of earning capacity sustained by the claimant. Nevertheless, it indicates one of the several points to be decided is : "Whether the amounts of compensation claimed is due or any part of that amount". Sections 23, 24 and 25 refer to the powers and procedure to be followed by the Commissioner while dealing with the application. The said Sections read with Rules 19 to 41 of the Rules framed under the Act makes it clear that the Commissioner shall hold a "mini-trial" with respect to the quantum claimed before him and adjudicate as to "whether the amount of compensation claimed is due or any part of that amount" is due. From a conspectus of these Sections and the Rules it is clear that, the Commissioner has been conferred with the complete power to settle all questions raised before him as regards the compensation claimed in a judicial way.
9. Now, as we have noticed Section 19(1) states that the Commissioner shall settle the amount of compensation payable to an applicant. The power to 'to settle' would indicated the power to decide the dispute, the power to determine the claim as also the power to bring to terms the disputes. Hence, the Statute confers exclusive power with Commissioner to determine the claim of compensation due to the applicant. If so, all provisions in the Statute, could be read in aid of the exercise of the said power by the Commissioner.
10. Here, we may advert to Section 4 once again. As far as Section 4(1)(a), Section 4(1)(b), Section 4(1)(c)(i) and Section 4(1)(d) are concerned, the quantum, of compensation payable can be assessed with the aid of the Schedule given to in the Statute itself. But in the case of Section 4(1)(c)(ii) alone the quantum has to be assessed by the adjudicating authority on the basis of the assessment of loss of earning capacity made by the qualified Medical Practitioner in that behalf. In other words, it is only while he exercises power under Section 4(1)(c)(ii) has he got power to assess independently.
11. Now, coming back to the question raised in this Appeal. What if the effect of Section 4(1)(c)(ii) on the exercise of such power by the Commissioner vis-a-vis Section 19 of the Act ? Section 3 of the Act may be described as the "Charging Section" which casts the liability on the employer to pay compensation to the workman in the named circumstances. Now, the employer is made liable to pay "Compensation" to the worker, Section 2(c) states, that compensation means the compensation as provided for under the Act. This takes us back to Section 4 of the Act which lays down the compensation provided for under the Act. Therefore, the employer is liable to pay compensation provided for under Section 4 of the Act to the worker the moment he sustains injuries the quantum of which is settled by the Commissioner in the case if there is disagreement.
12. We have seen that if the parties agree as to the quantum, the amount of compensation can be settled by them. It can be seen from the statute that even in case of agreement, the Commissioner has power to examine the propriety of the agreement and to reject it. This he can do only on the reasons to be specified (vide Form 'O'). Again there is indication in other Sections itself, that if the Commissioner intends to exercise his power and alter the compensation awarded he can do so only on the basis of material placed before him. We may advert to Section 6 in that behalf. It provides that the Commissioner may review the compensation fixed subject to production of a certificate from the qualified Medical practitioner. It shows that even in case of agreed compensation, a variation of the amount can be done by the Commissioner only on the basis of materials made available before him. If this be any indication of the manner of exercise of the powers by the Commissioner then it has to be said that the Statute indicates that the persons who seeks to deny the claim under Section 3 has to place evidence in that behalf and prove his contention.
13. This aspect of the position can be seen if a reference to various provisions of the Act is made. Section 4(1)(c)(ii) states that the Commissioner may settle the quantum of compensation payable taking into account, the disability sustained by the claimant. The Rules framed under the Act does not how that the claimant has to establish the percentage of loss of earning capacity. After receipt of the application the Commissioner has to examine the applicant of oath (Rule 23). He may dismiss the applications if there are no grounds to proceed (Rule 24). We will now advert to the Rules. Rules 23 to 25 of the Rules reads :
"23. Examination of applicant :- (1) On receiving an application of the nature referred to in Section 22, the Commissioner may examine the applicant on oath, or may send the application to any Officer authorised by the State Government in this behalf and direct such officer to examine the applicant and his witness and forward the record thereof to the Commissioner.
(2) The substance of any examination made under sub-rule (1), shall be recorded in the manner provided for the recording of evidence in Section 25.
24. Summary dismissal of application :-
(1) The Commissioner may, after considering the application and the result of any examination of the applicant and the result of any examination of the applicant under Rule 23, summarily dismiss the application, if for reasons to be recorded he is of opinion that there are no sufficient grounds for proceeding thereon.
(2) The dismissal of the application under sub-rule (1) shall not of itself preclude the applicant from presenting a fresh application for the settlement of the same matter.
25. Preliminary inquiry into application :- If the application is not dismissed under Rule 24, the Commissioner may for reasons to be recorded, call upon the applicant to produce evidence in support of the application before calling upon any other party, and if upon considering such evidence, the Commissioner is of opinion that there is no case for the relief claimed, he may dismiss the application with a brief statement of his reasons for so doing."
It is clear from the Rules that the Commissioner should be prima facie satisfied before he proceeds with the application. It is thereafter that under Rule 25 the Commissioner calls upon the claimant to produce evidence in support of his application. This shows that the claimant has to produce primary evidence to indicate the factum of the claimant having suffered personal injuries and to sustain his claim for the quantum. At this stage we may notice that it is only after the Commissioner is thus satisfied with the primary evidence tendered that he decides to proceed under Rule 27. It therefore means that the claimant has to tender primary evidence in support of his claim. Hence if before this stage the Commissioner does not reject the application it is to be held that the materials placed before him is sufficient to answer the claim raised in the claim petition :
"Whether the amount of compensation claimed is due or any art of the same"
As noticed, from the wording of Section 19, the jurisdiction to quantify compensation exclusively vests with the Commissioner. Wherefore, if the Commissioner does not dismiss the application under Rule 24 or Rule 25 it means he has decided to invoke his jurisdiction under the Statute to settle the quantum of compensation payable.
14. Now, on receipt of notice from the Commissioner, under Rule 27 the opposite party is entitled to contest the claim. It means, he can raise the specific plea that the quantum of amount claimed is not due to the claimant.
15. Now, when this issue is raised it becomes the duty of the Commissioner to quantify the quantum. Here what exactly the point that a qualified Medical Practitioner can certify vis-a-vis the earning capacity of a worker ? We may advert to the following passage from the Decision in United India Insurance Co. Ltd. and Ors. v. Sethu Madhavan and Ors. 1993 ACJ 1045 held as follows :
"(10) A certificate prescribing the nature of the injury and its impact on the organ of the human body involves technical and special knowledge with regard to the same and, therefore, expert opinion as regards that aspect becomes necessary. The nature of the injury, the part where it is inflicted and the effect it produces require expertise and, therefore, the opinion of an expert in that regard becomes relevant and necessary. The evaluation of the nature of injury is objective. Then its effect on the functioning of organ is also a matter for the expert. As the percentage of loss of earning power depends upon the disablement and other factors, the same is a question of fact depending upon the nature of work, the age of the workman, etc."
The qualified medical Practitioner can certify that the injured has suffered certain disability due to the accident. He cannot with precision assess that would be its effect on the earning capacity of a worker. The particular injury may disable him carrying on the particular vocation he was carrying on, the doctor can state that alone. As to whether he can carry on any other vocation is a matter for evidence. A driver who may suffer injury to his leg may not be able to drive a vehicle. The doctor can assess his earning capacity vis-a-vis that employment. But can the doctor certify his earning capacity with respect to every other conceivable profession ? This is a matter of evidence and inferences. Hence it has to be held that the power of the Commissioner to assess the loss of earning capacity is still saved by the wording of the Section itself. In this behalf we may advert to the following passage from the Decision in Achoor Estate v. Nabeesa 1994 I CLR 822.
"Whether the Commissioner can personally examine the disabled workman to decide the percentage of loss of earning capacity is a question which has considerable importance in workmen's compensation claims. the Commissioner is entitled to examine the workman in a particular case or a particular injury if he feels it is necessary for the purpose of settling the amount as he is enjoined to do under Section 19 of the Act. However, this power should be exercised with circumspection. The Commissioner should always keep in mind that after the 1984 amendment the power to assess the loss of earning capacity in the case of non-scheduled injury is vested in the qualified medical practitioner. We have to accept the position that in spite of numerous decisions of different Courts to the effect that in case of non-scheduled injuries the Commissioner is the authority to adjudicate and determine the percentage of loss of earning capacity the legislature thought it necessary to amend Section 4(1)(c)(ii) of the Act in order to vest in the qualified medical practitioner the power to assess the loss of earning capacity in the case of non-schedule injuries. The motive of the legislature in making the 1984 amendment is beyond the scrutiny of the Courts. Nor can the Courts examine whether the legislature had applied its mind to the provisions of a statue before passing it. The propriety, expediency and necessity of a legislative act are not for the determination of the Courts. (See T. Venkata Reddy v. State of A.P., ). No doubt, while assessing the percentage of loss of earning capacity the authority should have adequate knowledge of various other factors, like the nature of the work, chances of re-employment, number of years of service of the workman, etc. The assessment made by the qualified medical practitioner can only relate to the physical disability of the workman. Although that is an important factor in assessing the loss of earning capacity of a workman there may not be any doubt that this is not the only factor. Therefore, we cannot hold that after the 1984 amendment the Commissioner has no power at all to determine the loss of earning capacity of an injured workman. However, proved medical evidence has to be insisted upon by the Commissioner which is the primary basis on which the loss can be assessed."
If that be so, independent evidence has to be let in to prove what is the degree of loss of earning capacity. The claimant cannot lead negative evidence to show that he cannot carry on any other vocation. On the contrary the employer can lead positive evidence to show that the claimant has not lost the earning capacity as alleged by him. If this is so the burden of establishing the same shifts to the employer. It may be noted that under Section 3 of the Act, the liability to pay compensation has crystalized on the employer of the injured worker. The quantification is postponed as there is no agreement. And the worker claims the compensation and the adjudication arises only when the employer contends that the amount claimed in the claim in the claim petition is not due to the worker. Thereupon the Commissioner is called upon to settle the dispute. In settling the dispute he will assess the compensation payable by reference to the assessment made by the qualified Medical Practitioner with due regard to Section 4(1)(c)(ii) an Explanation-II. A careful reading of the Section 4(1)(c)(ii) shows that all the qualified Medical Officer does is to assess what according to him is the loss of earning capacity. Then he who relies or that assessment to disprove the claim made by the worker, should tender that evidence. Further we cannot hold that the assessment made by the qualified Medical officer is the final worked in the matter. If so held it would mean that the Commissioner has no power at all the "settle" the compensation as provided in Section 19 of the Act. It would also mean that, we will be, by judicial interpretation transferring the adjudicatory power from the Commissioner to the qualified medical officer. As we have seen earlier, the Statute has made the Commissioner the exclusive authority to award the compensation. The Statute is enacted for public good. If so the maxim, 'stauta pro publico commodo late interpretantur' (statute enacted for public good ought to be liberally construed) should be applied in interpreting the same. Laws are to be liberally construed, in order that their intent may be preserved. The Workmen's Compensation Act, has made the Commissioner the final authority to assess the compensation to the worker. While interpreting the Statute, the Courts should strive to preserve this intend of the Statute. To interpret Section 4(1)(c)(ii) to mean that the Commissioner shall award compensation as assessed by the qualified medical Practitioner would not be to further the intent of the legislation. The assessment of the qualified Medical Officer, as stated earlier is only a factor to assess the quantum. The Commissioner still has the power taking into account the assessment made by the Medical Officer to quantity the compensation. No witness shall control this power to adjudicate vested in the Judge it shall remain with the Judge himself.
16. But, conceding of power of adjudication with the Commissioner does not mean that his power runs hay wire and he can cat arbitrarily and whimsically. It does not mean that the he can act according to his private opinion. He shall decide the claim according to Rule of Reason and Justice. He shall do so according to law and not according to his humour. The power shall not be exercised in a capricious or impetuous way but in a disciplined and responsible manner. The adjudication should indicate the reasons for his decision. The Commissioner should disclose the process of reasoning adopted by him to arrive at the quantum of compensation, because good reasons alone result in goods decision.
17. Besides one other aspect may also be notice. Section 30 of the Act confers right of appeal against the award made by the Commissioner. The Appellate Authority examines the correctness of the Commissioner's award subject to the conditions mentioned in Section 30. If as a matter of fact, the award of the Commissioner is the substitution of the assessment of compensation made by the qualified Medical Officer then what is the extent of power that the Appellate Authority may exercise with respect to such an award ? There is very limited scope for a second examination by the Appellate Authority of the reasoning of the Commissioner.
18. In this case, Ex. P-3 is the medical Certificate produced by the Worker. It shows the injuries sustained by the worker. The qualified Medical Officer certifies inter alia that -
"he is suffering from total permanent disablement. He can not go for any normal work"
The Commissioner on perusal of the document was satisfied the the quantum of compensation claimed was proper. If the employer was of the view that he did not suffer any partial disablement, he should have taken steps to assess the percentage of loss of earning capacity. In the claim petition, the worker had stated thus :
"The petitioner has sustained a serious and grievous injury over his body and he has lost his strength and also not in a position to sit properly and even stand and walk without the help of anybody. The petitioner is therefore completely disabled from doing any manual; work or to go for doing any work."
The employer in deal merely stated as follows :
"The averments at paras 1 and 2 of the petition is admitted as true and correct. That the petitioner met with an accident and was admitted to Unity health Centre, at Davangere and it is also admitted to that the injury sustained on his body was out of and during the course of his employment. But as per as the nature of the injury and percentage of the disability, the petitioner is put to the strict proof of the same."
After making the above statement he left it at that. As such, there was no denial by the employer of the assessment of disability in Ex. P-3, Certificate or the claim of the worker made in the claim petition. In the absence of rebuttal evidence rebutting the primary evidence tendered by the claimant, the Commissioner was justified in acting on the same and assessing the quantum. The award made by the Commissioner is therefore correct and proper. It does not call for interference.
19. The Appeal is therefore dismissed. There will be no order as to costs.