Jammu & Kashmir High Court
Divisional Manager Jksfc Doda vs Safdar Ali on 16 March, 2021
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
MA No. 582/2014
Divisional Manager JKSFC Doda
......Appellant(s)
Through: -
Mr. Vipin Gandotra, Advocate
V/s
Safdar Ali
.....Respondent(s)
Through: -
Mr Amit Kumar, Advocate.
CORAM:
Hon'ble Mr. Justice Javed Iqbal Wani, Judge.
JUDGEMENT
1. The instant appeal has been filed by the appellant against award dated
24.09.2014 (for short impugned award) passed by the Assistant
Labour Commissioner, Doda (for short the Commissioner) under
Employees Compensation Act 1923 (for short the Act) in favour of
the respondent herein.
2. The appeal has been filed under Section 30 of the Act which provides
for filing of an appeal from various orders of a Commissioner
enumerated in (a) to (e) of sub Section (1). The first proviso appended
thereto Section 30 (1) however, would provide that no appeal shall lie
against any order unless a substantial question of law is involved in
the appeal.........
3. The appellant in the memo of appeal has formulated as many as seven
questions styled as substantial questions of law, however, learned
counsel for the appellant insists for consideration of only following
question thereof stated to be a substantial question of law:-
"Whether the loss in earning capacity can be determined
by ALC and the award can be based upon the loss in
earning capacity determined by the authority or whether
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the award can be passed in the absence of loss in earning
capacity given by the doctor".
4. Heard learned counsel for the parties and perused the record.
5. Learned counsel for the appellant while placing reliance on Judgment
passed by this Court in case titled as "Divisional Manager, J&K
State Forest Corporation vs. Bansi Lal", would contend that the
Commissioner proceeded to pass the impugned Award in breach of
Section 4(1)(c)(ii) of the Act, in that, in the case of an injury not
specified in Schedule 1, compensation is payable in the case of
permanent total disablement as is proportionate to the loss of earning
capacity to be assessed by the qualified medical practitioner alone.
6. According to the leaned counsel for the appellant, Explanation-II
appended to Section 4 supra would provide that 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 injuries in Schedule 1.
7. According to the learned counsel for the appellant the Commissioner
in absence of any such assessment of loss of earning capacity by the
qualified medical practitioner, could not have granted/awarded
compensation to the claimant/respondent.
8. Per contra, learned counsel for the respondent/claimant would resist
and controvert the contentions raised and urged by the learned counsel
for the appellant and would contend that no substantial question of
law is involved in the appeal warranting interference by this court
inasmuch as the non-assessment of the loss of earning capacity by the
qualified medical practitioner under Section 4(1)(c)(ii) does not forbid
MA No. 582/2014
or stand in the way of the Commissioner for award of compensation to
the claimant/respondent, in that, such assessment would merely be a
medical opinion of an expert in aid to the Commissioner in
adjudicating a claim in correct perspective.
9. The Workman Compensation Act 1923 indisputably has been enacted
for social security and is a welfare legislation with its purpose to
protect the workman. The intention of the legislation as provided
under the Act is to make the employer/insurer of the workman
responsible against the loss caused by injury or death which might to
have happened, while the workman has been engaged in his work.
Section 2 (b) of the Act defines the Commissioner as under:
"2.(b) Any Commissioner may, for the purpose of
deciding any matter referred to him for decision
under this Act, choose one or more persons
possessing special knowledge of any matter
relevant to the matter under enquiry to assist him
in holding the enquiry."
Section 20 provides for appointment of Commissioner and
reads as under: -
"20. Appointment of Commissioners.-
(1) The State Government may, by notification in
the Official Gazette, appoint any person [who is or
has been a member of a State Judicial Service for
a period of not less than five years or is or has
been for not less than five years an advocate or a
pleader or is or has been a Gazetted officer for not
less than five years having educational
qualifications and experience in personnel
management, human resource development and
industrial relations] to be a Commissioner for
[Employee's] Compensation for such area as may
be specified in the notification.
(2) Where more than one Commissioner has been
appointed for any area, the State Government may,
MA No. 582/2014
by general or special order, regulate the
distribution of business between them.
(3) Any Commissioner may, for the purpose of
deciding any matter referred to him for decision
under this Act, choose one or more persons
possessing special knowledge of any matter
relevant to the matter under injury to assist him in
holding the inquiry.
(4) Every Commissioner shall be deemed to be a
public servant within the meaning of the Indian
Penal Code.
10. A plain reading of the scheme, statement of objects and reasons of the
Act coupled with the provisions supra would reveal that Section
4(1)(c)(ii) is an enabling provision, enabling the Commissioner to
determine the percentage of compensation payable to the claimant on
the basis of assessment of loss of earning capacity by the qualified
medical practitioner. The adjudicating authority admittedly in the
matter is the Commissioner who on account of his specialized
qualification possessed by him envisaged under Section 20 of the Act
has to determine the percentage of compensation under Section
4(1)(c)(ii). The medical evidence in general and the assessment of loss
of earning capacity as assessed by a qualified medical practitioner
under Section 4 (1)(c)(ii) in particular, per-se would be a factor to be
taken into account for award of percentage of compensation in the
case of an injury not specified in Schedule 1 by the Commissioner.
This would be based on the doctrine of harmonious construction and
the settled principle that a beneficial piece of legislation has to be
interpreted in such a way as to assure the benefit and not to deny the
benefit that is sought to be conferred by the statute.
11. A medical practitioner may very well estimate/assess the loss of
physical capacity for work or even the loss of earning capacity yet
MA No. 582/2014
such medical evidence by itself cannot termed to be only
conclusive/determinative factor for award of percentage of
compensation by the Commissioner. The assessment of loss of
earning capacity by a medical practitioner cannot termed to be more
than a medical opinion of an expert providing an aid to the
Commissioner who has been held by the Apex Court in the case titled
as "Golla Rajanna Etc. Vs. The Divisional Manager & Anr.,
reported in 2017 (1) SCC 45", to be the last authority of facts.
12. In the instant case the claimant after suffering injuries in an accident
arising out of and in the course of his employment on 22.09.2008 filed
a claim petition under the provisions of the Act which claim petition
has been supported with a disability certificate with respect to the
injuries suffered by the claimant/respondent herein.
13. Perusal of the record in general and the evidence of the doctor namely
Dr. N. D. Dhar having appeared as a witness in particular, reveals that
the said evidence has formed basis for the Commissioner to determine
the percentage of compensation proportionate to the loss of earning
capacity on account of disability suffered by the claimant and assessed
by the doctor concerned and according to him the claimant/respondent
herein suffered a permanent disability of about 55% with loss in
earning capacity of 15%.
14. Indisputably there has been credible and cogent medical evidence on
record weighing with the Commissioner entitling the claimant to
compensation. The case admittedly is not of no medical
evidence/assessment before the Commissioner as is sought to be
projected by the appellant before this court but that the Commissioner
MA No. 582/2014
mandatorily had to have the assessment of loss of earning capacity
determined by a registered medical practitioner authorizing him to
determine and grant compensation to the claimant. This contention
and interpretation of the counsel for the appellant of Section
4(1)(c)(ii) does not match with the scheme, statement of objects and
reasons of the Act so much so the observations made in the preceding
paras.
15. The question formulated by the appellant and referred to hereinabove
in view of the preceding observation and analysis cannot said to be a
substantial question of law involved in the case, more so in view of
the fact that the compensation awarded by the Commissioner to the
claimant/respondent herein is fundamentally based on factual matrix.
The judgement of this Court passed in the case of "Divisional
Manager J&K State Forest Corporation supra relied upon by the
counsel for the appellant is misplaced and misdirected in the facts and
circumstances of the case and does not lend any support to the case
setup by the appellant.
16. Viewed thus, what has been observed, considered and analyzed
hereinabove, the impugned award dated 24.09.2014 does not call for
any interference resultantly the appeal fails and is, accordingly,
dismissed.
(Javed Iqbal Wani)
Judge
SRINAGAR
16/03/2021
"Ishaq"
i. Whether the Order is speaking? Yes.
ii. Whether the Order is reportable? Yes.
ISAQ HAMEED BHAT
2021.04.21 13:42
I attest to the accuracy and
integrity of this document
