United India Insurance Company ... vs Mude Doraswamy Naik And Another
2021 Latest Caselaw 1435 AP

             HON'BLE SRI JUSTICE M.VENKATA RAMANA

          CIVIL MISCELLANEOUS APPEAL No.1538 of 2008

JUDGMENT

This Civil Miscellaneous Appeal is directed against the order in

W.C.No.126 of 2005 dated 05.11.2007 of the Commissioner for

Workmen's Compensation-cum and Assistant Commissioner of Labour,

Kadapa.

2. The appellant is the 2nd respondent insurer, the 1st respondent

being the applicant and the 2nd respondent being the 1st respondent

before the Commissioner.

3. The 1st respondent laid an application claiming compensation of

Rs.3,50,000/- before the Commissioner on account of the injuries received

in the accident occurred on 17.02.2005 at about 00.30 a.m. The 1st

respondent was then working as a cleaner on Lorry AP 03U/1901

belonging to the 2nd respondent. when another lorry AP 26U/5778 driven

in the rash and negligent manner dashed against the lorry of the 2nd

respondent at that time near Chillakur cross-road on Nellore to Chennai

National Highway this accident occurred. Immediately, the 1st respondent

was taken to Government Hospital, Guduru and thereafter to SVRR

Hospital, Tirupati. He suffered fracture to his left hand, lost one eye and

injuries to the head. Cr.No.14 of 2005 under Sections 337 IPC and 338

IPC was registered in Guduru police station in respect of this accident.

Claiming that these injuries suffered by him were during and in the course

of his employment for the 2nd respondent, an application was filed before

the Commissioner against the 2nd respondent and the appellant.

MVR,J CMA No.1538 of 2008

4. He also claimed that he was being paid Rs.4,000/- per month as

wages by the 2nd respondent and that he was 22 years old on the date of

the accident.

5. The 2nd respondent opposed this application and primarily stated

that his lorry was insured with the appellant on the date of the accident

and that it is alone liable to pay this claim.

6. The appellant also resisted the claim of the 1st respondent

denying the entire accident and mainly contending that the 1st respondent

was never in the employment of the 2nd respondent as a cleaner on the

lorry and that he was only an unauthorized passenger in that lorry at the

time of the accident. It further contended that the owner and insurer of

the lorry AP 26U/5778 are necessary parties and who are liable to pay

compensation. Denying the claim as such including nature of injuries

suffered by the 1st respondent and also the alleged disability and

questioning the wages as well as his age as claimed by the 1st respondent,

it denied its liability.

7. The Commissioner basing on the material settled the following

issues for enquiry:

"1. Whether the applicant is a workman as per the provisions of the Workmen's Compensation Act, 1923 and he met with accident arising out of and in the course of his employment resulting in disability and loss of earning capacity?

2. What was the age of the injured applicant at the time of accident?

3. What was the wages paid to the injured applicant at the time of accident?

4. What is the loss of earning capacity suffered and permanent disability percentage faced by the injured applicant?

5. What is the quantum of compensation payable to the applicant?

6. Who are liable to pay the compensation?"

MVR,J CMA No.1538 of 2008

8. The 1st respondent examined himself before the Commissioner

as A.W.1 while relying on Ex.A1 to Ex.A5 to support his claim. No

evidence was let in on behalf of the 2nd respondent and also on behalf of

the appellant, during enquiry.

9. On the material, the commissioner accepting the claim of the 1st

respondent awarded compensation only Rs.2,23,114/- making the 2nd

respondent and the appellant liable jointly and severally directing that this

amount to be deposited within 30 days of receipt of the order, in default

to pay penalty under Section 4-A of the Workment's Compensation Act.

10. It is against this order, the appellant has preferred this appeal.

11. Heard for the parties.

12. Now, the following points arise for determination:

1. Whether the Commissioner is right in drawing conclusions

on the material on record and arriving at loss of earning

capacity without evidence of the qualified medical

practitioner, in terms of Section 4(1)(c)(ii) of the

Workmen's Compensation Act is justified?

2. To what relief?

POINT No.1:

13. The appellant did not specifically question the nature of the

accident in this appeal. Even otherwise, the evidence of the 1st respondent

as A.W.1 coupled with Ex.A1-Copy of First Information Report, Ex.A2-copy

of charge sheet, make out this accident.

MVR,J CMA No.1538 of 2008

14. Ex.A3 is the copy of the wound certificate reflecting the nature

of injuries suffered by the 1st respondent. Ex.A5 is the disability certificate

which according to the 1st respondent reflected that he suffered 65%

physical disability.

15. On behalf of the appellant, this disability certificate Ex.A5 is

seriously questioned stating that the insurer came to know later on that it

is a manipulated document and the certificate issued by SVRR Hospital,

Tirupati actually reflected 5% physical disability. However, no effort was

made in the course of enquiry to place such material nor it was the claim

on behalf of the appellant through cross-examination of A.W.1 in the

course of enquiry. It did not choose to let in any evidence on its own in

this context.

16. However, the question raised on behalf of the appellant in

respect of proof of Ex.A5 disability certificate in the context of Section

4(1)(c)(ii) of the Workmen's Compensation Act needs serious

consideration in this matter.

17. Examination of the qualified medical officer for the purpose of

evaluating loss of earning capacity is necessary. When the act clearly

contemplated in terms of Section 4(1)(c)(ii) requirement of such

assessment through a qualified medical practitioner, it cannot be

overlooked nor it is a mere formality. Assistance of qualified medical

practitioner in this process has a purpose and to assist in arriving at

appropriate measure of loss of earning capacity. The Commissioner under

Workmens' Compensation Act cannot on his own assume the role of a

medical expert for this purpose of arriving at, extent of loss of earning

capacity. Though the duty of the Commissioner is also that such MVR,J CMA No.1538 of 2008

assessment must be evaluated independently by him, for such purpose in

terms of the Act the opinion of the qualified medical officer is essential.

Such requirement cannot be dispensed with and the Commissioner cannot

take upon himself in arrivng at the compensation.

18. In the grounds of appeal, in respect thereof, the decisions in

United India Insurance Company Ltd., vs. Mohd. Khaja Rasool

Sayyed1, New Indian Assurance Co. Ltd. Vs. Sammaiah @

M.Shankar and others2, and Shivalinga Shivanna Gowda Patil Vs.

Eerappa Basppa Bhavihala3 are referred to.

19. A Division Bench of this Court in New India Assurance Company

Ltd.Vs.Abdul Khader Jilani and others4 observed that examination of

qualified medical practitioner is essential to arrive at loss of earning capacity. In

turn, this Ruling of Division Bench of this Court confirmed the view expressed in

National Insurance Company Limited vs. Rajhesh Helmandge and

others where it is held that examination of qualified medical practitioner is

mandatory to prove disability suffered by the claimant and to arrive at loss of

earning capacity. My view above is supported by the two rulings referred to

supra.

20. In National Insurance Company Ltd. Vs. Rajesh

Helmandge and Ors.6, in paras 25 and 26 in this context it is observed

as under:

. 2003(5) ALD 162

1995(3) ALT 470

.2004 ACJ 333 (High Court of Karnataka)

. 2007(4) ALT 607

. 2001(3) ALD 177

. 2001(3) ALD 177: MANU/AP/0288/2001

MVR,J CMA No.1538 of 2008

"25. The examination of the doctor for assessing non-pecuniary toss of earning capacity of the workman who sustained injuries, or who has suffered permanent partial disablement, is in the interest of the workman.

26. In case of non-scheduled injury, to assess the loss of earning capacity, it is mandatory to examine the qualified medical practitioner for assessing the compensation. For instance if a doctor certifies that a particular workman sustained a disability of 25% basing on that, if the Commissioner held that the workman suffered 100% loss of earnings, it can be said the Commissioner traversed beyond the scope of disability, because the doctor is an expert to say whether such disablement leads to total disablement or whether the workman lost his entire earning capacity or not. Because the permanent partial disablement entitled the workman for compensation only on the basis of loss of earning capacity. It cannot be said that in each and every case there was a total loss of earning capacity. In my opinion the loss of earning capacity should be determined basing on the medical evidence. In this context, it is relevant to consider that if the doctor was examined before the Commissioner, the employer/insurer has an opportunity to cross-examine the doctor and also in their opinion such disablement not leads to total loss of earnings, they can make an application before the Commissioner to refer the case of the workman to the Medical Board. I am afraid to accept the contention raised by the respondent that the medical certificate itself is sufficient to determine the loss of earning capacity. It is also against the interest of the workman. If the Commissioner while exercising the powers conferred under Section 19(1) held that disability is not a total disability and the certificate issued by the doctor shows only a partial disablement irrespective of the nature of injuries sustained by the workman, ultimately the workman is the sufferer. In view of that, in the interest of justice, I feel it is just and necessary to examine the doctor to determine the liability in cases where the workman sustained non- schedule injuries."

21. For the reasons best known, the 1st respondent did not choose

to examine the medical officer, who issued Ex.A5-disability certificate. This

is a serious and fatal flaw to the claim of the 1st respondent in so far as

the insurer is concerned.

22. In the course of hearing, the learned counsel for the 1st

respondent requested this Court to remand this matter to the

Commissioner for fresh enquiry. However, having regard to the accident

in question, which occurred in February, 2005 and the case itself was

disposed of by the commissioner in November, 2007, there is no

justification to send back this matter after 13 to 15 years.

MVR,J CMA No.1538 of 2008

23. The 2nd respondent being owner of the lorry, where the

deceased was working as a cleaner, on account of the established proof of

their relationship inter se as 'master and servant', his liability stands. The

Commissioner took into consideration the proper indicators viz., age of the

respondent at 21 years, wages relying on G.O.Ms.No.81, dated

29.03.2001 applicable to a cleaner as minimum wages at Rs.2568.75 ps.,

and the disability suffered by the applicant at 65% and awarded

compensation as stated above. Since the 2nd respondent did not choose to

contest either before the Commissioner or in this appeal questioning the

order passed, the findings so recorded are binding on him.

24. However, when specific contention is raised in this respect

questioning the very procedure adopted by the Commissioner, particularly

infraction of Section 4(1)(c)(ii) of the Workmen's Compensation Act, when

there is no proof offered with reference to extent of functional disability

leading to loss of earning capacity, as contended by the appellant, it

cannot be made to suffer the consequences in this matter and liability

thereunder. Therefore, this appeal has to be allowed in so far as the

appellant is concerned setting aside the order against it.

25. Thus, this point is answered.

POINT No.2:

26. In view of findings in point No.1, this appeal has to be allowed

in part, exonerating the liability of the appellant and confirming the order

of the Commissioner in other respects against the 2nd respondent.

27. In the result, this Civil Miscellaneous appeal is allowed in part,

setting-aside the order of the commissioner whereby the appellant (2nd MVR,J CMA No.1538 of 2008

respondent) is made liable for the compensation awarded to the 1st

respondent. It is modified to the effect that the 2nd respondent shall pay

the amount so awarded by the commissioner of Rs.2,23,114/- along with

costs to the 1st respondent (applicant) and the default clause to pay

penalty under Section 4-A(3) of the Workmen's Compensation Act stands

confirmed against the 2nd respondent alone. Therefore, the application of

the 1st respondent against the appellant insurer (2nd respondent before

the commissioner) stands dismissed and without costs.

As a sequel, pending miscellaneous petitions, if any, stand closed.

Interim Orders, if any, stand vacated.

________________________ JUSTICE M.VENKATA RAMANA Dt:08.03.2021 RR MVR,J CMA No.1538 of 2008

HON'BLE SRI JUSTICE M.VENKATA RAMANA

CIVIL MISCELLANEOUS APPEAL No.1538 of 2008

Dt:08.03.2021

RR MVR,J CMA No.1538 of 2008