Divisional Manager Sfc Doda vs Mohd Ayoub
2021 Latest Caselaw 297 j&K

          HIGH COURT OF JAMMU AND KASHMIR
                     AT JAMMU

                                                           MA No. 445/2014
                                                            IA No. 651/2014

Divisional Manager SFC Doda
                                                            ......Appellant(s)
                               Through: -
                      Mr. Vipin Gandotra, Advocate
                                    V/s
Mohd Ayoub
                                                           .....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

11-06-2014 (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 multiple

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:-

MA No. 445/2014

"Whether without determining the nature of injury and without there being any evidence with regard to loss in earning capacity, the compensation can be granted".

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

MA No. 445/2014

qualified medical practitioner under Section 4(1)(c)(ii) does not forbid

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.

MA No. 445/2014

(2) Where more than one Commissioner has been appointed for any area, the State Government may, 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.

MA No. 445/2014

11. A medical practitioner may very well estimate/assess the loss of

physical capacity for work or even the loss of earning capacity yet

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/respondent herein sustained serious

injuries in an accident on 28.05.1999 in the course of his employment

with respondent herein having suffered the disability of 35% and filed

a claim petition under the provisions of the Act.

13. Perusal of the record reveals that the claimant/respondent herein

produced three witnesses in addition to his person including one

doctor namely Dr. N. D. Dhar who in the witness box endorsed the

35% permanent disability sustained by the claimant/respondent

herein. The said evidence reveals that the same 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 payable

to the claimant/respondent herein.

14. Indisputably there has been credible and cogent evidence including

medical evidence on record weighing with the Commissioner entitling

the claimant to compensation with no evidence contrary thereto

MA No. 445/2014

produced or led by the appellant herein. 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 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. Furthermore Section 4 supra do not anywhere

provide for production of medical evidence of the same doctor who

had treated the claimant but instead provides for evidence thereto of a

qualified medical practitioner. The Commissioner has rightly dealt

with the contention raised by the non-applicant/appellant herein in this

regard while turning down the said contention of the non-

applicant/appellant herein.

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.

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16. Viewed thus, what has been observed, considered and analyzed

hereinabove, the impugned award dated 11-06-2014 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
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