Andhra HC (Pre-Telangana)
United India Insurance Company ... vs Mekala Advaiah And Anr. on 26 September, 2001
Equivalent citations: 2001(1)ALD447, 2001(6)ALT657, [2002(92)FLR358]
Author: N.V. Ramana
Bench: N.V. Ramana
JUDGMENT
1. This appeal is filed by the Insurance Company against the orders of the Commissioner for Workmen's Compensation, Nizamabad, dt.31.10.1997 in W.C. No. 137 of 1997. The facts of the case are as follows:
2. The workman, who is the first respondent in this appeal, was working as a driver of the lorry bearing No. ADB 6219 and the second respondent herein is the owner of the said lorry. On 22-5-1996 while the applicant was driving the said lorry during the course of his employment and when it reached the outskirts of Khanapur village, a scooter bearing No. AP-25 5755 came in the opposite direction in a zig zag manner due to which the applicant confused and lost his control over the lorry due to which the lorry went off the road and fell in a ditch and as a result the driver of the lorry sustained grievous head injuries, injuries on his chest, back, waist and fracture of right hand wrist and multiple injuries on various parts of the body, that he was taken to Govt. hospital, Nizamabad where he was treated as an inpatient and he sustained permanent partial disability due to the accident and hence he filed the W.C. claiming an amount of Rs. 2,50,000/- towards compensation.
3. The Commissioner after considering the evidence and the documents on record came to the conclusion that the applicant was working under the second respondent-owner, of the lorry and that the accident has taken place during the course of his employment and because of the accident the workman had suffered 60% permanent partial disability. While holding so, the Commissioner awarded an amount of Rs. 1,55,002/- towards compensation to the petitioner-workman fixing the liability jointly and severally on both the respondents. Aggrieved by the same the insurance company filed this appeal.
4. It is contended by the learned counsel for the appellant insurance company that there is no evidence to show that P.W. 2 is the doctor who examined and treated the petitioner-claimant at the first instance and P.W. 2 examined the workman three years after the incident, that the order of the learned Commissioner is not a reasoned order and there is no discussion whatsoever regarding the assessment of loss of earning capacity and nowhere it is stated that because of the disability sustained the claimant lost his 100% earning capacity. Apart from that the order does not reflect whether the Commissioner has accepted the evidence of the Doctor in toto or not. There is no categorical finding by the commissioner about the loss of earning capacity of the workman nor there is any observation made by the Doctor to that effect. Apart from that the Commissioner need not follow the evidence of the Doctor and it is not binding on him and he can assess the disability independently and in support of his contentions he placed reliance on a decision of this court reported and in THE NEW INDIA ASSURANCE CO., LTD., REPRESENTED BY DIVISIONAL MANAGER, HYDERABAD V. KOTAM APPA RAO, 1995 (1) ALD 499 and sought to set-aside the order passed by the Commissioner.
5. On the other hand, it is argued by the learned counsel for the 2nd respondent-workman that the learned Commissioner passed the award after considering the entire evidence on record including the evidence of the doctor P.W. 2. As per Section 4(1)(c) of the Workmen's Compensation Act the assessment must be made by a qualified Medical Practitioner. The Doctor P.W. 2 categorically deposed that the claimant sustained 60% permanent partial disability. But there is no cross-examination of P.W. 2 by the appellant insurance company to show that the present doctor who has given evidence is not a qualified Doctor for certifying the disability suffered by the petitioner. It is further contended by the learned counsel for the respondent-workman that there is sufficient evidence to assess the loss of earning capacity. It is evident from the evidence of P.W. 2 that because of the 60% permanent partial disability sustained by the workman, he cannot do the driver's job as he was performing on the day of accident and he lost his 100% earning capacity due to the injuries sustained by him and this court in BALLARI RAJENDRA v. G. GURUMURTHY, 2000 (1) ALD 423, already held that though the doctor certified the disability as 60%, the loss of earning capacity has to be fixed at 100% and in view of the said findings, the claimant in the instant case is also entitled to 100% compensation but unfortunately claimant did not prefer any cross appeal for enhancement, that there are no reasons to interfere with the award passed by the Commissioner and sought to dismiss the appeal.
6. Perused the impugned order.
7. The assessment of compensation under Workmen Compensation Act in regard to the schedule injuries can be made with the aid of the schedule given under Section 4 of the Act. With regard to the assessment of compensation in regard to non-schedule injuries is concerned, it has to be made basing on the evidence rendered by the qualified medical practitioner. If the qualified medical practitioner deposes before the Commissioner that the workman is incapacitated for doing all the works which he was capable of performing prior to the accident, by virtue of Section 2(1) of the Workmen Compensation Act, such workman is entitled to compensation for 100% disability as such incapacity or disablement amounts to total disablement.
8. The term qualified medical practitioner was defined under Section 2(1)(h)(i) of the Act as under:
"Qualified medical practitioner means any person registered under any central, provincial Act or an 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 purposes of this Act."
9. The case of the Insurance Company is that there is no evidence on record to show that P.W.2 is the Doctor who examined and treated the petitioner claimant. The order passed by the Commissioner clearly shows that during the course of cross-examination, nothing was elicited from P.W.2 that the claimant was not treated by P.W.2. In addition to that P.W.2 deposed before the Commissioner in unequivocal terms that he examined the workman on 3.9.97 and he also deposed the injuries sustained by the workman. The insurance company failed to raise any objection in regard to the above said aspect before the Commissioner and it appears there is no cross-examination to that effect. In addition to that, under Section 19(1) of the Workmen's Compensation Act, the Commissioner is conferred with the power to settle all the questions raised before him with regard to the compensation claimed in judicial way. The term, which was used under Section 19(1), " to settle" confers exclusive power on the Commissioner to determine the claim of compensation due to the claimant. On perusal of the various provisions of the Act, statute confers such power on the Commissioner. The provisions should be read in consonance with the power conferred on the Commissioner under Section 19 of the Act. While exercising the powers under Section 19(1) of the Act, the Commissioner has ample power to determine the compensation under Section 4(1) (a), (b), (c) and (d) of the Act and the compensation can be assessed with the aid and assistance of the schedule given under the Act. But, however, under Section 4(1)(c)(ii) of the Act, the Commissioner has to take into account the loss of earning capacity and the positive evidence rendered by the claimant while determining the compensation.
10. The Commissioner while assessing the quantum of compensation under Section 4(1)(c)(ii) of the Act has to consider independently the oral and documentary evidence on record and as per the provisions of the Act, there is a conceptual difference between loss of earning capacity and the percentage of disability suffered. In the instant case, P.W.2 Doctor entered into the box and deposed that the workman sustained 60% permanent partial disability and the movement of the left knee is painful and restricted pain on left side chest during the respiration. He cannot stand for long time on left leg and weight bearing on left leg for long time is painful. He also deposed that the workman cannot do driver's job.
11. By considering the evidence of the Doctor before going into the other considerations, it is just and necessary to look into the provisions of Section 4(1)(c)(ii) of the Act. As per that provision, in case of injury, which was not specified in Schedule-1, the percentage of compensation payable in case of permanent total disablement is to be determined by the Commissioner. On perusal of explanation-II of Section 4(1)(c), while assessing the loss of earning capacity, the evidence of qualified medical practitioner shall have due regard to the percentage of loss of earning capacity in addition to the disability sustained by the workman.
12. In this appeal, as per the provisions of the Workmen's Compensation Act, the workman got examined the medical practitioner to assess the disability of loss of earnings. The appellant insurance company has not taken any steps to question the evidence adduced by the claimants. The insurance company failed to take steps to question the veracity and credibility of the medical evidence before the Commissioner. If the Insurance Company has any doubts regarding the credibility and reliability of the evidence adduced on behalf of the claimant through P.W.2 Doctor, it ought to have taken steps to refer the case of the workman to the appropriate Doctor or to the Medical Board to determine the percentage of disability. But the appellant failed to take any steps. Basing on the evidence adduced, the Commissioner assessed the loss of earnings at 60% as the Doctor deposed that the workman sustained 60% disability. The assessment made by the Commissioner does not warrant any interference in the instant appeal.
13. The other contentions raised by the appellant counsel that the order does not reflect whether the Commissioner has accepted the evidence of the Doctor in toto or not is concerned, the Commissioner in the order extracted the evidence of P.W.2 Doctor and came to the conclusion and assessed the loss of earning capacity at 60% and held that the workman is entitled for 60% of the wage by way of loss of earnings by applying the appropriate factor from the schedule. In this case, it is interesting to see that though the Doctor deposed that the workman is not in a position to work as a Driver, the Commissioner exercised his discretion and awarded only 60% of the wages without resorting to section 2(1) of the Act. I am of the opinion that the Commissioner on perusal of the entire evidence, assessed the compensation by holding that the workman is entitled to Rs. 1,55,002/-. I am unable to accept the contentions raised by the appellant in this regard. The counsel for the appellant placed reliance on a Judgment of this court in NEW INDIA ASSURANCE CO. LTD. v. KOTAM APPA RAO (supra). In that case, it was held that the Commissioner need not follow the evidence of the Doctor and he can assess the disability independently basing on the material on record. In the instant case also even though the Doctor deposed that the workman is not in a position to work as a Driver subsequent to the accident, the Commissioner exercised his discretion and assessed and awarded only 60% of the wages by way of compensation. In view of that, the decision cited by the appellant is no way helpful to him to set-aside the order passed by the Commissioner as contended by him.
14. For the foregoing reasons, the order of the Commissioner does not warrant any interference and the same is confirmed and there is no merit in this appeal and it is accordingly dismissed. There shall be no order as to costs.