Kerala High Court
K.S.Joseph vs Prasanna on 13 February, 2012
Author: K.Vinod Chandran
Bench: Thottathil B.Radhakrishnan, K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:-
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
TUESDAY, THE 14TH DAY OF AUGUST 2012/23RD SRAVANA 1934
M.F.A.No.112 of 2012
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[AGAINST THE ORDER IN E.C.C.No.410 OF 2008 DATED 13.02.2012
OF THE COURT OF THE COMMISSIONER FOR EMPLOYEE'S COMPENSATION
(DEPUTY LABOUR COMMISSIONER), PALAKKAD]
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APPELLANT/OPPOSITE PARTY:-
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K.S.JOSEPH,
AGED 44 YEARS, S/O. DEVASSIA,
KANIYANKUNNU HOUSE,
ANJALI LANE, PALLIPURAM POST,
PALAKKAD.
BY ADVS.SRI.R.HARISHANKAR
SMT.AMBIKA RADHAKRISHNAN.
RESPONDENT/APPLICANT:-
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PRASANNA,
W/O. RAMDAS,
NAYADIKUZHIYIL HOUSE, PALAPPURAM POST,
OTTAPALAM TALUK,
PALAKKAD - 679 103.
THIS MISCELLANEOUS FIRST APPEAL HAVING COME UP FOR
ADMISSION ON 07-08-2012, THE COURT ON 14-08-2012 DELIVERED THE
FOLLOWING:-
Thottathil B.Radhakrishnan &
K.Vinod Chandran, JJ.
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M.F.A.No.112 of 2012
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Dated this, the 14th day of August, 2012
JUDGMENT
K.Vinod Chandran,J:
The Opposite Party before the Commissioner for Employees' Compensation is before us, challenging the award passed in favour of the applicant granting compensation of an amount of Rs.1,10,128/- with simple interest at the rate of 12% per annum from the date of accident to the date of deposit.
2. The matter came up before us for admission on 24.07.2012. Though we were not satisfied that any questions of law as raised by the appellant arises from the order of the Tribunal; the learned counsel strenuously urged before us that a mere perusal of the deposition of the witnesses arrayed on behalf of the applicant would bring to light the hollowness of the claim and reveal the perverse approach adopted by the Commissioner in adjudicating the claim. Hence, we called for the records, which were available when the matter was taken up today. MFA.No.112 of 2012 - 2 -
3. We heard Sri.R.Harishankar, the learned counsel for the appellant, extensively and went through the entire records at the stage of admission itself.
4. Shorn of all details, the applicant claimed to be an employee in the industry/establishment, by name " General Rubber Products", owned by the Opposite Party. It was the contention of the applicant that on 3.6.2008 at about 1.00 p.m. while she was engaged in the work of feeding rubber sheets into the roller machine, propelled by electric energy, by accident, her right palm went between the rollers causing grievous injuries resulting in loss of four fingers of her right hand. The accident arose out of and in the course of employment as is deposed by the applicant, her co-worker A.W.3 and the driver of the Opposite Party A.W.2. The Opposite Party entered appearance and disputed the employer-employee relationship, but admitted the accident having occurred inside the premises of the industry owned by him. The Commissioner, on appreciation of the evidence, passed the impugned order.
5. The appellant raises three substantial questions of law, which are extracted hereunder:
MFA.No.112 of 2012 - 3 -
"i. Whether the Respondent is a Workman/Woman as envisaged under the Workmen's Compensation Act, 1923?
ii. Whether the Court below was right in casting onus on the Appellant to disprove the claim of the Respondent as regards the employer-employee relationship, when the Respondent herself has failed miserably to prove the same?
iii. Whether the process of calculation of compensation is futile, inane, otiose and redundant, by virtue of the same being based on Exhibit X1, especially when a single member of the Medical Board is not examined by the Respondent?"
6. The learned counsel for the appellant would foremost contend that there is absolutely no employer-employee relationship between the Opposite Party and the applicant. The deposition of A.W.2 and A.W.3 could, prima facie, be found to be unreliable on account of the serious discrepancies in the proof affidavit and the deposition on cross examination. There is nothing on record to establish the employment of the applicant in the Opposite Party's MFA.No.112 of 2012 - 4 - industry. Exhibit A7 pay-slips were rightly not relied upon by the Commissioner. The Commissioner ought not to have shifted the onus of proving/disproving the status as an employee, since the burden cast on the applicant has not at all been discharged by her. The learned counsel would also urge that the reliance placed on Exhibit X1 Medical Certificate to compute the compensation without even examining a single member of the Medical Board, is illegal. The learned counsel would also crave leave of this Court to raise a further question of law regarding the jurisdiction of the Commissioner to entertain the claim. Admittedly the incident had occurred and the applicant had her residence at Thiruvilwamala, within Thrissur District; while the claim was raised before the Workmen's Compensation Commissioner, Palakkad.
7. In support of the contention against the reliance placed on Exhibit X1 Medical Certificate issued by the Board, the learned counsel would place before us the judgments rendered by two Division Benches of this Court, viz., The Merchant Steam Navigation Co. Ltd. v. Mohammed Kunju Appukka, 1956 KLT 69, and Achoor Estate v. Nabeesa, 1994 (1) KLT 657. Relying on MFA.No.112 of 2012 - 5 - the The Merchant Steam Navigation Co. case, the learned counsel would urge that the proposition laid down in the said case regarding the evidentiary value of medical certificates and the manner in which it has to be proved, has stood the test of time. Even at that distance of time, noticing irregularity of relying on a medical certificate without proof, the Division Bench had considered various decisions of the Calcultta High Court and declared the absolute necessity of it being proved through a Medical Officer. This was held so, since the Commissioner was not a medical man and the malingering and false claims raised in this particular class of litigation makes the medical evidence the worst form of hearsay evidence. Despite the amendment of 1984, bringing in the words "as assessed by the qualified medical practitioner" within Section 4(c)(ii) of the Workmen's Compensation Act, 1923, hereinafter referred to as "the Act", this Court again reiterated the said proposition in Achoor Estate case (supra).
8. We will first deal with the contention regarding the employment status of the applicant. We have gone through the deposition of A.W.2 and A.W.3. The learned counsel would MFA.No.112 of 2012 - 6 - specifically refer to the deposition of A.W.3 to point out that though he admits to be a co-worker and a neighbour of the applicant, he also deposes that he has no other connection with the applicant. It is also alleged that though the exact amount of salary drawn by the applicant was stated by him in the proof-affidavit, in cross examination he candidly admits that he is not aware of the amount drawn by the applicant as salary. On going through the deposition of A.W.2 and A.W.3, we are not impressed that the discrepancies pointed out by the appellant are so gross as to disbelieve both the witnesses. Both of them do not say anything more than their having witnessed the accident which occurred in the industry owned by the Opposite Party. They also support the applicant's version of her status as an employee of the Opposite Party. This, according to us, sufficiently discharges the burden cast on the applicant.
9. The persuasive arguments advanced on behalf of the Opposite Party made us scrutinise the stand of the Opposite Party regarding the accident. On receipt of notice regarding the injury, the Opposite Party had replied by Exhibit A6 notice. In Exhibit A6, the Opposite Party denied the employer-employee relationship; but MFA.No.112 of 2012 - 7 - admitted the accident, in so far as he contended that the accident was one caused by the applicant's voluntary but negligent actions. He also admitted having paid compensation to the tune of Rs.75,000/- on humanitarian consideration. In the Written Statement, the Opposite Party asserted his denial of employment; but went one step ahead to contend that the applicant was a regular visitor to the premises of the appellant. This was only for cutting the grass in the estate to feed her cows and was not in the course of any employment was the assertion. Again the accident was admitted; and the same was attributed to the applicant's voluntary negligent actions. In the proof affidavit the Opposite Party would contend that the applicant used to come occasionally to the estate to cut grass, for which she was paid daily wages for the work undertaken.
10. In cross-examination, the Opposite Party would depose that he does not employ any workers in his establishment and that he along with his partners and Manager carries on the work therein. The appellant would also contend that on the said day there was no work carried on in the establishment. He claims, the amount of Rs.75,000/- paid to the applicant was in the nature of a loan; in MFA.No.112 of 2012 - 8 - the context of the applicant having been employed in his estate. Considering the nature of the establishment as also the work carried on as is discernible from the records, we are of the opinion that the finding of the Commissioner regarding the employer-employee relationship is eminently possible from the evidence. Such finding is a definite conclusion from the evidence on record and any prudent man would come to the said conclusion. Such conclusion cannot at all be termed perverse. It cannot at all be said that the onus of proving the employment was cast on the Opposite Party. We hence answer the questions of law framed by the Opposite Party regarding the finding on the employment status of the applicant against the Opposite Party/employer and in favour of the applicant.
11. We now come to the issue of the degree of proof that is essential for a safe reliance of Exhibit X1 certificate. We would first examine the decisions placed before us. The Merchant Steam Navigation Co. case (supra) was in which the workman sustained an injury on his thumb during and in the course of employment. On the question of the procedure adopted by the Commissioner in placing reliance on the medical certificate issued by the Medical MFA.No.112 of 2012 - 9 - Officer, the Court found it to be irregular in so far as the Medical Officer was not examined, though the certificate was issued on the basis of a requisition made by the Commissioner. We specifically notice that in the said case the counsel for the respondent conceded that the procedure was irregular and that on the materials in the case, the award could not be sustained. True, the request for remand was rejected, since the respondent had not called the Medical Officer as a witness before the Commissioner and also for the reason that the workman had claimed compensation only for temporary disablement, while the Commissioner found permanent disablement. After citing various decisions, the Division Bench noticed that from the records of the said case no manner of acquiescence on the part of the employer or his contractor could be found with respect to the procedure adopted by the Commissioner. Hence the appeal was allowed, setting aside the order of the Commissioner.
12. We have gone through the records of the instant case to understand as to how Exhibit X1 came to be marked, especially in the context of there being another Medical Certificate, Exhibit A2, which was marked by the applicant. We find from the Discharge MFA.No.112 of 2012 - 10 - Summary that the applicant had suffered the following injuries, and the treatment procedure adopted were the following:
"Diagnosis:
Major crush injury right hand with
1. Degloving of dorsum skin, total degloving of middle and ring fingers.
2. Multiple volar burse laceration with multiple phalangeal fractures of index, middle ring finger.
3. Doubtful viability of index and little fingers.
Procedure(s):
03.06.08 : Debridement right hand.
06.06.08 : Debridement, shortening of stumps of middle and ring fingers at base of PPX and coverage by groin flap cover right hand. 28.06.08 : Abdominal flap division and inset.
Amputation of gangrenous index and little finger of right hand and coverage of residual raw area by SSG".
Exhibit A2 was a Standing Disability Assessment Board Certificate, issued by the Medical Board at the District Hospital, Thrissur, wherein the applicant's disability was assessed at 26%. The Board consisted of an Orthopaedician, an Opthalmologist, an ENT Surgeon and a MFA.No.112 of 2012 - 11 - Psychiatrist. The evidence of the applicant was recorded on 25.1.2010, when Exhibit A2 was marked. Subsequently, the applicant by an interlocutory application dated 17.7.2010 requested for referring the applicant again to the Medical Board, Thrissur to evaluate and assess the percentage of earning capacity. The Opposite Party strangely filed an objection to the said application. In the said objection dated 6.9.2010, it was categorically stated that the applicant had already appeared before the Medical Board and disability was assessed. The objection was regarding the prayer for a second examination, after recording the evidence of the applicant. The Commissioner allowed the application.
13. The Medical Certificate issued then, was marked as Exhibit X1 on 4.4.2011 in the presence of the counsel for the appellant and the counsel for the Opposite Party. No objection was raised. It was posted for the Opposite Party's evidence to 25.4.2011. We find that there is no objection placed on record by the Opposite Party regarding the marking of the Medical Certificate Exhibit X1. Nor does the proceedings sheet reveal any such objection being raised by the counsel for the Opposite Party before the Commissioner. While MFA.No.112 of 2012 - 12 - Exhibit A2 certificate of the Medical Board assesses the disability at 26%, the report Exhibit X1 assesses such disability at 23%. In addition Exhibit X1 also computes the loss of earning capacity at 46%. The second Board was also constituted of an Orthopaedician, a Surgeon and a Physician. The findings of the said Medical Board is extracted hereunder:
"On examination on 29-01-2011 patient can not hold things with (R) hand due to loss of fingers. There is well healed full thickness skin flap on dorsum of (R) hand extending to volar aspect distally. Loss of all four fingers of (R) hand through metacarpo phalangeal joint. Whole thumb present. Mil web space contracture causing limitation of thumb abduction. Thumb opposition nil.
Wrist joint - Normal.
With these disabilities she has got a permanent disability of 23% (Twenty three percentage) and loss of earning capacity of 46% (Forty Six percentage)".
14. From the discussion above, the acquiescence of the employer before the Commissioner is very evident. We also notice that even in the argument note submitted by the learned counsel for the Opposite Party, no objection regarding the admissibility of Exhibit MFA.No.112 of 2012 - 13 - X1 report was raised. The injuries sustained by the applicant and the claim of disability raised by her in her application are quite in consonance with the injuries and disabilities recorded by both Exhibit A2 and Exhibit X1. There is no warrant to import the reasoning of the Division Bench in The Merchant Steam Navigation Co. case (supra) to the facts of the present case.
15. The two questions considered by the Division Bench in the batch of cases in Achoor Estate case (supra), were with respect to the procedure of fixing percentage of loss of earning capacity without assessment by a qualified medical practitioner and the propriety of disbursal of the compensation amount deposited before the expiry of the appeal period. None of these questions arise in the instant case. In fact, the Court notices the amendment made in the year 1984, but however found that "the probative value of the medical certificate has to be adjudged by the Commissioner taking into consideration the other evidence in the proceedings" (sic). The learned counsel for the appellant would then alertly point out that the said finding was on adopting the reasoning of the Court in U.I.Insurance Co. Ltd. v. Sethu Madhavan, 1992 (2) KLT 702, MFA.No.112 of 2012 - 14 - which, according to him, has been subsequently overruled by the Full Bench of this Court in New India Assurance Co. Ltd. v. Sreedharan, 1995 (1) KLT 275.
16. We have given anxious consideration to the said contention raised by the learned counsel. U.I.Insurance Co. Ltd. case (supra) was a judgment rendered in a batch of appeals filed by the Insurance Companies. The issues raised were manifold, but all pertaining to the medical certificate and the probative value of the same before the Commissioner. Considering the question whether the Commissioner could go beyond the percentage of disability assessed by the Medical Officer, the Division Bench held that while the opinion of the medical practitioner is relevant as a basis for assessing loss of earning capacity, it is idle to contend that the Commissioner has to ipso facto accept the certificate. The Commissioner, it was held, could assess the loss of earning Capacity to compute the quantum of compensation in the light of other relevant factors that comes to fore from the evidence recorded. This finding has been overruled by the Full Bench in New India Assurance Co. Ltd. case (supra).
MFA.No.112 of 2012 - 15 -
17. The Full Bench of this Court held that the Commissioner could not ignore the report of a qualified medical practitioner certifying the loss of earning capacity and fix the compensation disregarding the same. It was also held that if on the basis of evidence the Commissioner finds that for any reason the medical certificate cannot be accepted, he could certainly refer the applicant to another medical practitioner or board for expert opinion and report. The introduction of the words "as assessed by the qualified medical practitioner" by virtue of Act 22 of 1984, was held to be with a view to avoid arbitrariness in determining the compensation. The Commissioner thus was held to have no elbow-room in determining loss of earning capacity when a medical certificate was available. In the event of there being any infirmity in the certificate or the same not disclosing the loss of earning capacity, it was also held that the Commissioner could adopt necessary measures to have the victim/workman subjected to further medical examination.To the extent of the power granted to the Commissioner to override medical certificate, the findings in U.I.Insurance Co. Ltd. case (supra) was reversed by the Full Bench.
MFA.No.112 of 2012 - 16 -
18. We, however, notice that there was a specific issue raised in U.I.Insurance Co. Ltd. case with respect to the need of examining a qualified medical practitioner for the purpose of admitting the medical certificate in evidence. The Division Bench decision in The Merchant Steam Navigation Co. case (supra), on which strong reliance was placed by the learned counsel for the appellant, was also noticed therein. The Division Bench considered the question with reference to the provisions of the Evidence Act and held in unequivocal terms that the said provisions are not applicable to a proceeding before the Commissioner. Relying on the decision of the Supreme Court in Union of India v. T.R.Varma, AIR 1957 SC 882, it was held that the Evidence Act has no application to enquiries conducted by the Tribunal, even though they may be judicial in character, but however subject to strict observance of the rules of natural justice. The Division Bench, in fact, considering the words used in Section 4(1)(c)(ii) held that:
"The section thus enables to act upon the certificate even without examining the medical practitioner and it would be open to the affected party to prove the conclusion reached by the medical practitioner is vitiated. In short, in MFA.No.112 of 2012 - 17 - terms of S.4(1)(c)(ii) of the Act in deciding the percentage of loss of earning capacity the basic document being the certificate issued by the qualified medical practitioner, the same cannot be dispensed with; as to what is its probative value has to be judged with due regard to the other data indicating the contrary" (para 15).
19. We respectfully agree with the said declaration. This, in our opinion, remains untouched by the Full Bench. In fact, the Full Bench held so in the concluding paragraph:
"To sum up the position, we hold that in a case where the report of the qualified medical practitioner certifying loss of earning capacity alone is there and no other evidence is available the Commissioner cannot ignore the report and fix the compensation disregarding it. In a case where the applicant has produced only the medical certificate and has not produced any other evidence and when the Commissioner has not called for a second medical report or has not cared to send the applicant to be examined by a medical board, he cannot just ignore the medical practitioner's report and determine the compensation on the basis of his own assessment. The probative value of the report of the qualified medical practitioner will have to be considered on its own along with other evidence, if any".
MFA.No.112 of 2012 - 18 -
20. Going by the precedents, we are clear in our mind that an examination of the Medical Officer or one of the Medical Officers constituting the Board is not always essential. As noticed earlier, the 1984 amendment specifically provided that the loss of earning capacity in the case of permanent total disablement should be as assessed by the qualified medical practitioner. Explanation II also provides for guidelines for such assessment of loss of earning capacity with due regard to the percentage of loss of earning capacity in relation to different injuries specified in Schedule I. We also draw support from the intention of the legislature, as is evident from Section 11 of the Act. The statement of objects and reasons of the Act highlights the need of the employers to provide adequate safety devices and the comparative poverty of the workmen as also the endeavour of the State, as far as possible to protect such marginalized members of the society from hardships arising from accident arising out of and in the course of employment. It was in this context that Section 11 has conferred a right on the employer to subject the employee to a medical examination by a qualified medical practitioner of the employer's choice, however, free of charge. MFA.No.112 of 2012 - 19 -
21. Sub-sections (2) and (3) of Section 11 also specifically provide for suspension of any right to compensation, in the event of the refusal, obstruction or voluntary absence of an employee to subject himself to a medical examination as provided in sub-section (1). Such suspension also continues as long as the refusal, obstruction or absence subsists. In the event of an employee whose right has been so suspended under sub-section (2) or (3) dies without submitting for such examination, sub-section (4) provides for payment of compensation to the dependants only if the Commissioner deems it fit in the circumstances of the case. Sub-section (5) and sub-section (6) also provides for suitable modifications, to the prejudice of the employee, in the event of failure to submit to medical examination. Hence, what the legislature intended; considering the penury and abject conditions of persons belonging to the class of workmen, was that they should not be forced to defray even the expenses of medical examination. Further, to ensure the bona fides of the claim, the option to determine the loss of earning capacity by an expert was left to the employer, to be assessed by a medical practitioner of the employers' choice. In such MFA.No.112 of 2012 - 20 - cases, definitely the medical officer would have to be examined to prove the certificate.
22. The workman/applicant could also lead contra evidence. On the failure of the employer to exercise such option, the injured workman cannot be subjected to the rigour of evidence. The very purpose of the legislation would be defeated if such burden or onus is cast on the employee on the mere refusal of the employer to take steps to subject the injured to medical examination. The Division Bench in U.I.Insurance Co. Ltd. case (supra) lucidly went into the purpose of the legislation and found the proceedings under the Act before the Commissioner to be essentially one for fact finding.
23. In the instant case, there is absolutely no attempt on the part of the Opposite Party to seek for such examination either on receipt of notice or before the Commissioner. The prayer of the applicant for second examination for reason only of the earlier Board having not recorded the loss of earning capacity; was objected to by the Opposite Party. We are not, for a moment, laying down a proposition that medical certificates does not require any degree of proof with respect to claims for compensation for injuries arising out MFA.No.112 of 2012 - 21 - of and in the course of employment. It would depend upon the facts and circumstances of each case and the evidence recorded. We would also say, the tenor and spirit of the legislation would indicate that the examination and assessment by a medical officer and marking of the same in evidence before the Commissioner is an option available to the employer, as a safeguard to the employer. The legislature, we would say, in a sagacious manner provided the safeguard to the employer and also released the employees from the rigours of a strict legal proceeding, ensuring that the victims are not further saddled with the costs and pain of obtaining certification of their disability and proving it before the Commissioner.
24. In the context of the failure of the Opposite Party in the present case to avail of such opportunity/option specifically conferred by the statute and the overwhelming evidence based on two medical certificates issued by two different competent Boards in consonance with the claims made by the applicant; we are clear in our mind that there was no requirement for the examination of a medical officer; as contended by the Opposite Party, to prove the certificate and also the loss of earning capacity. On the strength of MFA.No.112 of 2012 - 22 - the discussion above, the third question raised by the appellant is also answered against the appellant and in favour of the respondent/applicant.
25. The next question regarding the territorial jurisdiction, we are unable to entertain in view of Section 21 of the Code of Civil Procedure. We are convinced that there was no prejudice caused to the Opposite Party by the adjudication of the claim by the Workmen's Compensation Commissioner, Palakkad. Nor is there any plea regarding any such prejudice having been caused in contesting the claim, adducing evidence or on any issue arising in the course of the proceedings. There is nothing to show any failure of justice and we reject the above plea of lack of jurisdiction advanced by the appellant.
26. We did not think it fit to issue notice to the respondent, since we are answering the questions of law raised by the appellant in favour of the respondent. We deemed it fit that the procedural requirement of notice can be avoided in the context of the orders we propose to pass and also keeping in mind the tenor and spirit of the legislation, which we have considered in the earlier part MFA.No.112 of 2012 - 23 - of this judgment.
27. We record our appreciation of the efforts taken by the learned counsel Sri.R.Harisankar in preparing the case and presenting it adroitly before us.
In the result, the appeal is dismissed in limine, but, however, answering the questions of law, as above.
Sd/-
Thottathil B.Radhakrishnan Judge Sd/-
K.Vinod Chandran Judge.
Vku/-
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