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2014 Supreme(Mad) 90
High Court of Judicature at Madras
G.M. AKBAR ALI, J.
The New India Assurance Co Ltd
Versus
Periyasmay & Others
Civil Miscellaneous Appeal Nos. 282, 283, 284, 285, 286 & 287 of 2011 & M.P. No. 1 of 2011
Decided On : 10-01-2014
For the Appellant:S. Manohar, Advocate.
For the Respondents:R1, U.M. Ravichandran for S. Vijayakumar, Advocates, R2, Ex-parte.
Headnote:
Workmen Compensation Act – Section 4(1)(c)(ii) – Employment and service - Engaged as load men in insured vehicle - Assessing the compensation - Appellant is Insurance Company with which vehicle bearing Registration was insured - There are six claimants - They claimed compensation for injuries sustained during course of employment when they were engaged as load men in insured vehicle - Appellant Insurance Company resisted claim on various grounds denying liability - Deputy Commissioner of Labour found that claimants were engaged as load men in insured vehicle and accident had happened during course of employment and sustained injuries - It was also found that there is a policy coverage for all load men - While assessing compensation Deputy Commissioner relied on disability certificate issued by Doctor who assessed disability and individually fixed loss of earning capacity and thereby granted various amounts to all claimants – Held, Doctors very well estimate loss of physical capacity for work but loss of physical capacity for work but loss of earning capacity must be estimated by some other person - Best estimate that can be given is by those people who would have opportunity of seeing workman work before and after accident - Workmen Compensation Act is not concerned with physical injury as such nor with mere effect of such injury on physical system of workmen but it is concerned only with effect of injury or of diminution of physical powers caused thereby on earning capacity of affected workman - To what extent earning capacity has been affected it can never be for a medical witness to say - Medical evidence is opinion evidence and it is only with regard to physical aspect of injuries that opinion of a medical witness is relevant and admissible as opinion of an expert - But loss of earning capacity is not a matter of medical opinion and is not a matter to which a medical witness can possibly speak - Loss of earning capacity is not necessarily co-extensive with loss of physical capacity and certainly former does not prove latter - In same Division Bench held assessment of loss of earning capacity being a question of fact and authority has correctly assessed same and there is no substantial question of law involved for interference - Said observation is squarely applicable to cases on hand and Deputy Commissioner of Labour who had opportunity of seeing applicant in person has assessed loss of earning capacity based on permanent disability assessed by doctor - Court see no reason to interfere with order passed by Deputy Commissioner of labour - Appeals are dismissed
1. Civil Miscellaneous Appeals filed against the order dated 3.11.2010 made in W.C. Case No.579, 580, 581, 582, 583, 584 of 2007 on the file of Court of Commissioner for Workmen's Compensation – 2 (Deputy Commissioner of Labour-2), Chennai-6.
2. All these appeals are arising out of the compensation awarded by the Commissioner for Workmen's Compensation – 2 (Deputy Commissioner of Labour-2), Chennai-6.
3. The appellant is the Insurance Company with which the vehicle, bearing Registration No.TN-27-B-5131, was insured. There are 6 claimants. They claimed compensation for the injuries sustained during the course of employment, when they were engaged as load men in the insured vehicle on 9.1.2007.
4. The appellant Insurance Company resisted the claim on various grounds denying the liability. However, the learned Deputy Commissioner of Labour found that the claimants were engaged as load men in the insured vehicle and the accident had happened during the course of employment and sustained injuries. It was also found that there is a policy coverage for all the load men.
5. While assessing the compensation, the learned Deputy Commissioner relied on the disability certificate issued by the Doctor, who assessed the disability and individually fixed the loss of earning capacity and thereby granted various amounts to all the claimants.
6. Aggrieved by which, the Insurance Company is before this Court mainly on the ground that as per Sec.4(1)(c)(ii) of the Workmen Compensation Act, only a doctor is competent to assess the loss of earning capacity and the Deputy Commissioner cannot fix the loss of earning capacity.
7. Reiterating the said ground, Mr. S. Manohar, learned counsel for the appellant Insurance Company submitted that in the case of non-schedule injury, loss of earning capacity cannot be fixed by the Commissioner and the permanent disability, as assessed by the doctor, will not amount to functional disability. The learned counsel relied on a decision reported in 2007 ACJ 845 (National Insurance Co Ltd vs Mabasir Ahmed and another), wherein it is held as follows:
“7. These cases related to injuries which were not specified in Schedule I and such cases are covered by section 4(1)(c)(ii) Explanation. In terms of Explanation II the qualified medical practitioner has to assess loss of earning capacity having due regard to percentage of loss of earning capacity in relation to the different injuries in Schedule I. Explanation I also provides that where there are more than one injury, the aggregate has to be taken, so that the amount which would be payable for permanent total disablement is not exceeded.
8. Loss of earning capacity is, therefore, not a substitute for percentage of the physical disablement. It is one of the factors taken into account. In the instant case the doctor who examined the claimant also noted about the functional disablement In other words, the doctor had taken note of the relevant factors relating to loss of earning capacity. Without indicating any reason or basis the High Court held that there was 100 per cent loss of earning capacity. Since no basis was indicated in support of the conclusion, same cannot be maintained. Therefore, we set aside that part of the high Court's order and restore that of the Commissioner, in view of the facts situation. Coming to the question of liability to pay interest, Section 4-A (3) deals with that question. The provision has been quoted above.
8. The learned counsel also relied on a decision reported in 2009 ACJ 2742 (Oriental Insurance Co Ltd vs Mohd. Nasir and another), wherein it is held
12. The statutes provide for determination of the extent of physical disability suffered by a qualified medical practitioner so as to enable him to assess the loss of earning capacity. Explanation I appended to clause © of sub-section (1) of section 4 provides that where there are more injuries than one, the aggregate amount of compensation has to be taken but the same should not exceed the amo
