Jammu & Kashmir High Court
Divisional Manager Jksfc Ramban vs Balwan Singh on 16 March, 2021
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
MA No. 394/2014
Divisional Manager JKSFC Ramban
......Appellant(s)
Through: -
Mr. Vipin Gandotra, Advocate
V/s
Balwan Singh
.....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
31-05-2014 (for short impugned award) passed by the Assistant
Labour Commissioner, Kishtwar (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 seven questions
styled as substantial questions of law, however, learned counsel for
the appellant insists for consideration of only the following question
thereof stated to be a substantial question of law:-
"Whether without determining the nature and without
there being any evidence with regard to loss in earning
capacity the compensation can be granted".
MA No. 394/2014
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
or stand in the way of the Commissioner for award of compensation to
the claimant/respondent, in that, such assessment would merely be a
MA No. 394/2014
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,
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
MA No. 394/2014
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
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
MA No. 394/2014
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 after suffering an injury, in an accident met by the
claimant/respondent herein on 09.02.1998 while working as Mistry
with the non-applicant/appellant herein, resulting into a permanent
disability of right arm, the claimant/respondent herein filed a claim
petition on 10.02.1998 before the Commissioner, under the provisions
of the Act.
13. Perusal of the record reveals that claimant/respondent herein produced
four witnesses including a medical witness namely Dr. A. M. Bhat,
Assistant Surgeon Sub-District Hospital Kishtwar, who had deposed
in the witness box about the nature of injury suffered by the claimant
in his right arm being partial permanent amounting to 15% to 20% in
support of his claim. The Commissioner after evaluating the evidence
led by the claimant/respondent herein and the non-
applicants/appellant herein seemingly has passed the award while
taking into account the evidence led in general and the evidence of the
doctor concerned in particular.
14. Indisputably there has been credible and cogent medical evidence on
record weighing with the Commissioner entitling the claimant to
compensation with no evidence contrary thereto produced or led by
the appellant herein in this regard. The case admittedly is not of no
medical evidence/assessment before the Commissioner as is sought to
MA No. 394/2014
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.
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 31-05-2014 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
