Oriental Insurance Co. Ltd. Thr. ... vs Shamlal S/O Kisan Dhurve And Anr
2021 Latest Caselaw 16078 Bom

fa1100.09.odt                                                            1

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                            NAGPUR BENCH, NAGPUR

                         FIRST APPEAL NO. 1100 OF 2009

      Oriental Insurance Co. Ltd.,
      Through its Divisional Manager,
      Divison Office No.3, Wardhaman Nagar,
      Central Avenue Road, Nagpur.
                                                     ...APPELLANT
                                    VERSUS

1.    Shamlal s/o Kisan Dhurve,
      Aged 25 yrs, Occ: Labour,
      R/o Ratnara (Gondhi Tola),
      post Ratnara, Teh & Dist. Gondia.

2.    Chainlal Rupchand Damahe,
      Aged major, Occ: Business,
      R/o Ratnara (Gondi Tola),
      Post Ratnara, Teh & Dist. Gondia.             ..RESPONDENTS
______________________________________________________________
Shri Haris Khan, Advocate h/f Shri A.M. Quazi, Advocate for appellant.
None for respondent no.1.

               CORAM                 :    PUSHPA V. GANEDIWALA, J.
ARGUMENTS WERE HEARD ON              :    01.10.2021
JUDGMENT PRONOUNCED ON               :    22.11.2021

JUDGMENT :

Heard.

2. The appellant-Insurance Company has challenged the judgment

and award dated 18.09.2008 passed by the Commissioner under the

Workmen's Compensation Act and Labour Court at Gondia in N.F.W.C.A. No.1

of 2005.

3. Heard both the sides on the following substantial questions of

law.

"i. Whether the examination of the medical authority is necessary to

ascertain the percentage of earning capacity of the injured due to the

non-specified injury suffered by him ?

ii. Whether the appellant-Insurance Company is liable to indemnify

the insured for the amount of interest as has been directed by the

learned Commissioner? "

4. The facts in nutshell leading to preferring this appeal may be

stated as under:

The appellant is the insurance company with which the

offending vehicle i.e. tractor bearing registration No. MH-30/A-8636 was

insured. Respondent no.1 is the claimant while respondent no.2 is the owner

of the offending vehicle. Respondent no.1 claimant filed a proceeding under

Section 4 and 22 of the Workmen's Compensation Act, stating therein that he

was in the employment of respondent no.2 for the work of loading and

unloading of the material on the offending vehicle tractor MH-35/A-8636.

On 02.03.2001 at about 3 to 4 pm the said tractor was carrying murum and

after unloading the said material, the claimant was sitting alone at the

boundary-wall of the house waiting for the return of the tractor and at that

time the driver drove the said vehicle and dashed to the wall, due to which

the claimant suffered injuries to his leg and hip. He was taken to the KTS

Hospital, Gondia. The accident was reported to the Police Station, Gondia

City, Gondia and crime was registered against the driver of the said vehicle.

The claimant claimed that due to accident his movement got restricted and

he is required to walk with the help of a stick. He stated that he was getting

daily wage of Rs.75/-. He claimed compensation along with 50% penalty and

interest.

5. In response, the appellant Insurance Company filed its reply

below Exhibit 33 and resisted the claim petition. The appellant denied that

the claimant was the employee of the owner of the insured vehicle to load

and unload the material on daily wages of Rs.75/- and Rs.2,250/- per month

as alleged in the petition. The appellant Insurance Company also denied the

occurrence of the incident and loss of 90% earning capacity of the claimant

due to the accident. In its specific pleading the appellant insurance company

stated that the claimant at his own negligence suffered the injuries and there

is no fault on the part of the driver and owner of the vehicle.

6. Respondent no.2, the owner of the vehicle in his written

statement denied his liability to pay any compensation. He also denied the

fact that the claimant was his employee on his tractor to load and unload the

material at Rs.75/- per day and Rs.2,250/- per month. This respondent also

denied the occurrence of the incident.

7. The learned Commissioner framed necessary issues below Exhibit 37

and recorded the evidence as adduced by the parties. The claimant examined

himself and also examined one witness by name Dilip Motilal Dhurve as an

eyewitness. The claimant has also brought on record the First Information

Report (Exhibit 39), Spot Panchanama (Exhibit 40), MLC (Exhibit 41),

Disability Certificate showing his permanent disability as 60% (Exhibit 42),

Form AA (Exhibit 43), Insurance policy (Exhibit 44), legal notice (Exhibit

45). Owner examined himself at Exhibit 49. The appellant Insurance

Company preferred not to examine any witness.

8. Learned Commissioner after considering oral and documentary

evidence, allowed the claim petition and directed the owner and insurer

jointly and severally to deposit the amount of compensation of Rs.2,70,592/-

within a period of two months with interest at the rate of 12% p.a. from the

date of accident till its realization. Owner is also directed to deposit penalty

at the rate of 50% on the compensation with the Commissioner.

9. This judgment of the learned Commissioner under Workmen's

Compensation Act is the subject matter of challenge in this appeal.

10. I have heard learned counsel Shri A.M. Quazi appearing on

behalf of appellant-Insurance Company. None present for respondent

no.1/claimant and none appeared for respondent no.2 despite due service.

11. Learned counsel appearing on behalf of the appellant raised a

question that the Doctor, who assessed the workman, has not given any

certificate regarding the loss of earning capacity in terms of Section 4(1)(c)

(ii) of the Workmen's Compensation Act, 1923. As per Section 4(1)(c)(ii) of

the Act, the Doctor has to assess the loss of earning capacity of the workman

which is not done in this case. It is submitted that the medical officer alone is

competent to fix the loss of earning capacity of a workman within the

meaning of the aforesaid provision. Since in the present case, the Doctor has

not assessed the loss of earning capacity, therefore, according to the learned

counsel, suo motu fixation by the Assistant Labour Commissioner regarding

the loss of earning capacity is improper, irregular and not in consonance with

the provisions of the Act, as such cannot be sustained. It is further urged that

in the absence of examination of the medical officer to ascertain the

percentage of earning capacity of the injured claimant, the learned

Commissioner ought not to have considered the same at 90% earning loss to

the claimant and granted compensation accordingly. Second point as has

been argued by the learned counsel is that the learned Commissioner ought

not to have saddled the responsibility of payment of interest on the

appellant/insurer and the appellant is not liable to reimburse the insured the

amount of interest.

12. I have perused the record and considered the submissions put

forth on behalf of the appellant.

13. At the outset before proceeding to appreciate the contentions, it

needs to be kept in mind that Workman's Compensation Act, 1923, is a piece

of welfare legislation intended to provide immediate relief to an injured

workman or the dependants of a deceased workman who is injured or meets

his death by an accident arising out of and in the course of his employment.

A reference in this regard to the judgement of Hon'ble Supreme Court in the

case of Golla Rajanna Vs. The Divisional Manager reported in (2017) 1 SCC

45, would be relevant. Paras 9 and 10 of the judgment read thus:--

"9. The Workmen's Compensation Commissioner, having regard

to the evidence, had returned a finding on the nature of injury

and the percentage of disability. It is purely a question of fact.

There is no case for the insurance company that the finding is

based on no evidence at all or that it is perverse. Under Section

4(1)(c)(ii) of the Act, the percentage of permanent disability

needs to be assessed only by a qualified medical practitioner.

There is no case for the respondents that the Doctor who issued

the disability certificate is not a qualified medical practitioner, as

defined under the Act. Thus, the workmen's compensation

Commissioner has passed the order based on the certificate of

the disability issued by the Doctor and which has been duly

proved before the Workmen s Compensation Commissioner.

10. Under the scheme of the Act, the Workmen's Compensation

Commissioner is the last authority on facts. Parliament has

thought it fit to restrict the scope of the appeal only to

substantial questions of law, being a welfare legislation.

Unfortunately, the High Court has missed this crucial question of

limited jurisdiction and has ventured to re-appreciate the

evidence and recorded in its own findings on percentage of

disability for which also there is no basis. The whole exercise

made by the High Court is not within the competence of the

High Court under Section 30 of the Act."

14. In the case in hand, on the basis of evidence on record, the

learned Commissioner has recorded the finding that the claimant was serving

as a labour with the owner of the tractor for loading and unloading murum

on his tractor bearing No. MH-35/A-8636 and has met with an accident on

02-03-2001 during the course of employment.

15. With regard to loss of earning capacity, admittedly, the case of

the claimant falls under non-scheduled injury. The claimant has to prove his

loss of earning capacity suffered by him on account of the accident as per

Section 4(1)(c)(ii) of the Act. To substantiate his claim, the claimant has

brought on record the disability certificate Exh. 42 dated 01-01-2004, issued

by the Medical Board for physically handicapped, General Hospital, Gondia,

certifying 60% permanent physical disability of the injured/claimant. It is the

contention of the learned counsel for the appellant that the examination of

the medical officer is indispensable for determining the loss of earning

capacity of the injured employee. It is difficult to accede to this contention.

The competency of the Commissioner of Labour and the medical practitioners

are different and independent. Thus, the medical practitioners are

empowered to issue disability certificate and the percentage of disability is to

be mentioned in the certificate. Based on the percentage of disability assessed

by the medical practitioner, the Commissioner of Labour has to take into

consideration all other factual aspects including the monthly income and the

age of the workman and thereafter, calculate the total compensation to be

paid and this would be the procedure as contemplated under the Act and

therefore, the contention of the learned counsel for the appellant in this

regard deserves no merit consideration.

16. As per Section 4 (1)(c)(ii) of the Act, "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". The provision is

clear and unambiguous. Therefore, the disability percentage assessed by the

Doctor must be taken into consideration for fixing the loss of earning

capacity. That is the spirit of Section and that must be the purpose and object

of the provision enabling the authorities to fix the compensation in

commensuration with the disability assessed by the Doctor. In other words,

the disability assessed by the Doctors and the loss of earning capacity to be

fixed by the competent authority must be nearer and in commensuration with

the disability percentage in order to avoid grant of excess compensation or

lesser compensation. The provision contemplates that the Doctors must assess

the disability. The medical practitioners are certainly not competent to assess

the loss of earning capacity which is not relatable to the medical profession.

The very intention of the provision is to ensure that the 'just compensation' is

awarded. That being the purpose and object of the provisions, the Courts are

bound to interpret that the objects sought to be achieved are achieved. Once

the qualified Doctor assessed the disability, such a disability percentage is to

be taken into consideration for the purpose of assessing the loss of earning

capacity of the workman. This being the possible interpretation which is

constructive to reach the object of the Act, this Court is of the opinion that

the very interpretation offered by the learned counsel for the appellant

deserves to be rejected.

17. As the certificate was issued by the medical board and the same

is duly proved by the claimants and in view of the dictum laid down by the

Hon'ble Apex Court in the case cited supra, there is no substance in the

contention urged by the Learned Counsel for the appellant. The learned

Commissioner relying on Schedule 1, part-II Section (1) and (4) of the Act,

recorded the findings that the injury caused permanent partial disablement

and caused loss of earning capacity to the tune of 90%. I answer this

question in the negative.

18. The next question with regard to the direction to the appellant

insurance company to pay interest on the amount of compensation, the

liability of the insurance company emanates from the terms and conditions of

the contract of insurance. The learned counsel for the appellant could not

point out from the terms and conditions of the insurance policy that the

insurer is not liable to reimburse the insured the amount of interest

calculated on the amount of compensation, which is payable to the claimant.

For the reasons aforestated, the answer both the points accordingly. No good

grounds are made out to interfere with the well reasoned order passed by the

Learned Commissioner. Consequently, the appeal is liable to be dismissed,

inasmuch as, the same is devoid of merit.

JUDGE

Wagh

Digitally signed by:SURESH RAOSAHEB WAGH Signing Date:23.11.2021 10:47