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1992 Supreme(Ker) 489
IN THE HIGH COURT OF KERALA
T.L. Viswanatha Iyer, L. Manoharan, JJ.
United India Insurance Co. Ltd. - Appellant
Vs.
Sethu Madhavan - Respondent
M.F.A. Nos.126, 985 etc. of 1990
Decided On : 26-09-1992
For the Appellant : Siby Mathew, Wilson Urmese, Thomas John, Mathews Jacob, P.V.R. Kaimal, P.V.K. Panicker & N. Nandakumara Menon.
For the Respondent: Thomas Antony Kallenpally & K. Ramakumar.
The assessment of loss of earning capacity under S.4(l)(c)(ii) of the Workmen’s Compensation Act should be based on the certificate issued by the qualified medical practitioner, but the probative value of the certificate should be judged with due regard to other data indicating the contrary.
Headnote:
WORKMEN'S COMPENSATION ACT - Assessment of Loss of Earning Capacity - S.4(l)(c)(ii) - Summary
Fact of the Case:
The appeals by the Insurance Companies filed under S.30 of the Workmen’s Compensation Act, 1923 raised common questions for determination. Respondents-workmen in the respective appeals filed petitions under S.22 of the Act for compensation and the Commissioner passed awards. They are challenged. These cases fall under S.4(l)(c)(ii) of the Act inasmuch as the injuries sustained by the workmen did not answer the description of the injuries specified in Part I or II of Schedule I of the Act.
Finding of the Court:
The court analyzed the provisions of S.4 of the Act and the nature of enquiry before the Commissioner and his jurisdiction as per the provisions in the Act and Rules. The court concluded that the loss of earning capacity should be assessed by the Commissioner based on the certificate issued by the qualified medical practitioner, but the probative value of the certificate should be judged with due regard to other data indicating the contrary. The court emphasized that loss of earning capacity is a question of fact and should be adjudicated by the Commissioner, and the medical evidence, though relevant, cannot be decisive. The court also held that the provisions of the Evidence Act are not applicable to proceedings before the Commissioner, and the Commissioner is entitled to act on materials which may not be accepted as evidence in a court of law, as long as the rules of natural justice are observed.
Ratio Decidendi: The key legal principle established in the judgment is that the assessment of loss of earning capacity under S.4(l)(c)(ii) of the Workmen’s Compensation Act should be based on the certificate issued by the qualified medical practitioner, but the probative value of the certificate should be judged with due regard to other data indicating the contrary. The court also emphasized that the provisions of the Evidence Act are not applicable to proceedings before the Commissioner, and the Commissioner is entitled to act on materials which may not be accepted as evidence in a court of law, as long as the rules of natural justice are observed.
Final Decision: The court dismissed M.F.A.126 of 1990 and M.F.A.985 of 1990, and set aside the orders in M.F.A.Nos.58 of l992, 404 of l992 and 505 of 1992, remitting the matters back to the Commissioner for disposal in accordance with the principles outlined in the judgment.
L. Manoharan, J.
These appeals by the Insurance Companies filed under S.30 of the Workmen’s Compensation Act, 1923 (for short ‘the Act’) raise common questions for determination. Respondents-workmen in the respective appeals filed petitions under S.22 of the Act for compensation and the Commissioner passed awards. They are challenged. These cases fall under S.4(l)(c)(ii) of the Act inasmuch as the injuries sustained by the workmen did not answer the description of the injuries specified in Part I or II of Schedule I of the Act.
2. In M.F.A No.126 of 1990 though Ext.A2 disability certificate slates the disability of the workman at 50%, the Commissioner for Workmen’s Compensation found the loss of earning capacity at 100% and awarded compensation accordingly. In M.F.A. No.985 of 1990 Ext. A4 disability certificate states permanent disability of 30%, the Commissioner found the loss of earning capacity at 45% and awarded compensation on that basis. In M.F.A.No.58 of 1992 Ext.A2 disability certificate did not mention the percentage of disability, the Commissioner found the loss of earning capacity to be 40% and compensation was awarded accordingly. In M.F.A.No.404 of 1992 Ext. A7 disability certificate did not mention the percentage of disability, but the Commissioner found the loss of earning capacity at 45% and awarded compensation on that basis. In M.F.A No.505 of 1992 also the percentage of disability was not mentioned in Ext.P4 disability certificate, the Commissioner found loss of earning capacity at 40% and compensation was awarded.
3. As could be seen from the above, cases where the qualified Medical Practitioner certified the percentage of disability the Commissioner did not accept the same; instead fixed a higher percentage of loss of earning capacity and awarded compensation. Even in cases where the certificate did not mention the percentage of disability Commissioner fixed percentage of loss of earning capacity and on that basis awarded compensation. This is attacked by the appellants as without jurisdiction, as according to them, in terms of S.4(l)(c)(ii) of the Act the Commissioner has no jurisdiction to fix a percentage of disability at variance with the percentage of disability certified by qualified Medical Practitioner. Learned counsel maintained, the Commissioner has no discretion in the matter. According to him, since the very section itself states that the compensation has to be assessed on the basis of the earning capacity as assessed by the qualified Medical Practitioner, where the qualified Medical Practitioner certifies the percentage of loss of earning power the Commissioner has to accept the same. It then was contended, where the Medical Practitioner did not certify the percentage of loss of earning capacity the Commissioner has to refer him to qualified Medical Practitioner to assess the same. According to learned counsel for the appellant, in the absence of assessment as to the loss of earning capacity the Commissioner cannot fix compensation in a case like the present one that falls under S.4(l)(c)(ii) of the Act. Yet another point raised was that the medical certificate issued by the qualified Medical Practitioner cannot be admitted in evidence without examining the doctor who issued the same and so long as the doctor is not examined the certificate cannot be relied on for finding the percentage of loss of earning power.
4. On the other hand on behalf of the worker it was contended, the Commissioner being the authority to fix the compensation under the Act, it is for him to fix the loss of earning capacity on the basis of which the compensation is to be awarded. Therefore, according to him, even where the approved Medical Practitioner has not certified the percentage of loss of earning capacity the Commissioner can fix the same on other evidence. In other words according to him the certif
