The High Court of Kerala dismissed an insurance company's appeal challenging a Workmen's Compensation award.
The appeal was dismissed, upholding the Commissioner's order awarding compensation of Rs.2,15,172/- with interest at 12% per annum from the date of the accident (4.4.2002).
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
MONDAY, THE 22ND DAY OF FEBRUARY 2016 / 3RD PHALGUNA, 1937
MFA NO. 221 OF 2006
AGAINST THE ORDER IN WCC 249/2003 OF W.C.C., THRISSUR
APPELLANT/S:
ORIENTAL INSURANCE CO.LTD REGIONAL OFFICE, METRO PALACE,, GROUND FLOOR, OPP.NORTH RAILWAY STATION,, ERNAKULAM, REPRESENTED BY ITS, DULY AUTHORISED OFFICER.
BY ADV SRI.VPK.PANICKER
RESPONDENT/S:
1 K.F.SEBASTIAN, S/O. FRANCIS, KAVALAKKATT HOUSE, KANDASANKADAVU,, THRISSUR.
S/O.KOLLAPARAMBIL MOHAN, VADOOKKARA,, KOORKKENCHERY, THRISSUR.
BY ADV SRI.D.ANIL KUMAR
THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 22.02.2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
Ravikumar, J.
This appeal is directed against the order dated 29.6.2006 in WCC No. 249 of 2003 of the Court of the
Commissioner for Workmen’s Compensation, Thrichur. The Oriental Insurance Co.Ltd., which was the 2nd respondent therein is the appellant herein. The 2nd respondent herein filed the same under section 22 of the Workmen’s Compensation Act, 1923 (for short ’the Act’) for compensation for the personal injuries sustained by him allegedly during the course under the 1st respondent herein. On the side of the applicant/the 2nd respondent herein he got himself examined as PW2 and Dr.C.P.Johny, who issued Ext.A5 disability certificate, was examined as AW1. On his side Exts. A1 to A10 were got marked. On the side of the opposite parties therein viz., the appellant and the 1st respondent herein none was examined, but Ext.M1 was got marked. The following issues were framed for consideration:-
“1. Whether the applicant was a workman as defined in the Act and whether there were employer-employee relationship between the first opposite party and the applicant?
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and in the course of employment of the applicant?
As against issue Nos.1 and 2 it was found that the 2nd respondent-claimant was a workman as defined under section 2(l)(n) of the Act, there was employer-employee relationship
between the first respondent and the applicant and that the accident had arisen out of and in the course of employment.
The permanent disability was assessed as 25% and the loss
of earning capacity as a Mini Lorry Driver was assessed as 45%. At the time of the accident the 2nd respondent-claimant was aged 23 years and his monthly wage was determined as Rs.3600/- and taking note of such factors the compensation payable was fixed as Rs.2,15,172/- with simple interest @ 12
% per annum. The appellant was directed to pay the said amount with interest at the aforesaid rate from 4.4.2002 till
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the date of deposit. In case of failure for compliance, the above amount was held liable to be recovered from the appellant herein by initiating Revenue Recovery proceedings. It is in the said circumstances that the Oriental Insurance Co.Ltd., which was the 2nd respondent therein filed the captioned appeal.
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The 2nd respondent herein/applicant claimed that he is employed as the driver of mini lorry bearing registration No.KL-8/Q-8330 belonging to the 1st respondent. On 4.4.2002 at about 11.30 AM while he was driving the said vehicle through Palakkad-Trichur road it collided with a lorry coming from the opposite direction at a place called Kannady and he sustained severe injuries and as a consequence of which he incurred permanent disability resulting in loss of earning capacity. It is seeking compensation for the personal injuries sustained that he filed the aforementioned claim petition. The 1st respondent remained ex parte before the Court of the Commissioner. Though the appellant disputed a claim before the Commissioner, a perusal of the contentions in the appeal would reveal that regarding the employee-employer relationship between the 2nd and the 1st respondents, which issue was found in favour of the claimant, no contention is raised in this appeal. So also, it is evident from the memorandum of appeal that the accident in question and the
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fact that it arose out of and in the course of employment of the 2nd respondent are also not in dispute. The core contention is that the Commissioner had erred in refusing to refer the applicant to a medical board in spite of filing an application therefor, by the appellant, taking note of the fact that Ext.A5 disability certificate was disputed. In the said context, the appellant had raised the question whether the Commissioner had committed an error in refusing to refer the applicant to a medical board in spite of documentary evidence that the medical certificate relied on by the applicant was not trustworthy, as substantial question of law. So also, another question of law as to whether the Commissioner had committed error in fixing the loss of earning capacity solely based on Ext.A5 disability certificate ignoring Ext.A10 X-ray showing united fractures, is also raised as a substantial question of law. We will deal with the same a little later.
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interest at the rate of 12% from 4.4.2002 till the date of realisation. As relates the order for payment of interest from the date of the accident the appellant has paused a question as a substantial question of law on the following lines:-
“C) Whether the Commissioner for Workmen's Compensation did not err in fixing the appellant with liability under the Workmen's Compensation Act to pay interest on the amount awarded from the date of accident, when the appellant came to know of the accident and injury only on the subsequent date i.e., on receipt of intimation of the case from the W.C. Court?”
that the accident had arisen out of and in the course of employment of the 1st respondent is not in dispute. The employee-employer relationship between the 1st and 2nd respondents is also not in dispute. In the accident the applicant sustained type-III open fracture on both bones of right leg. Ext.A5 is the disability certificate issued by AW1. In Ext.A5 it was noted thus:-
“1. Ugly scar on (a) posterior part of leg extending from the middle of calf muscles right to the lower third of leg (b) auteromedial surface lower third of right leg (c) auteromedial side of upper third of leg with keloid tendency right side.
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respondent/applicant. However, he is the doctor who medically examined and assessed the extent of disability of the 1st respondent and issued Ext.A5. One of the grounds raised in the appeal is that the Commissioner ought to have rejected Ext.A5 disability certificate on the sole ground that AW1 had not treated the applicant nor was associated with
the hospital where the applicant was treated. In the contextual situation, it is only apposite to refer to the decision of Honourable Apex Court in Raj Kumar v. Ajay Kumar reported in 2011 (1) KLT 620 (SC) . Though it is a decision rendered in respect of a claim for compensation under Section 168 of the Motor Vehicles Act, 1988 we are of the view that in
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respect of the aforesaid question it has great relevance.
“8. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45%loss of future earning capacity. In most of the cases, equating the extent (percentage)of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning
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capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation (see for example, the decisions of this Court in Arvind Kumar Mishra v. New India Assurance Co.Ltd-2010(10) SCALE 298 and Yadava Kumar v. D.M. National Insurance Co.Ltd. -2010(8) SCALE 567).
9. xxxxxx xxxxxx
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may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for crossexamination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability.”
8. In the light of the aforesaid decision the appellant
cannot be heard to contend that Ext.A5 disability certificate ought to have been rejected solely on the ground that AW1 had neither treated the applicant nor was associated with the hospital, where the applicant was treated. Evidently, he is the doctor who medically examined the 1st respondent/applicant and issued Ext.A5 after assessing the extent of disability. As stated in the impugned order AW1 was also subjected to cross-examination by the opposite party, viz., the appellant. When the fact is that AW1 is the doctor who medically examined the 1st respondent/applicant and issued Ext.A5 after
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assessing the extent of disability and he was tendered for cross-examination on behalf of the appellant, with reference to the certificate and when nothing was elicited to discredit him the aforesaid contention of the appellant is only to be rejected. It cannot be said that, in the said circumstances, merely because the appellant disputed the correctness of the medical certificate with respect to the assessment of the extent of disability, the Commissioner should have referred the applicant to a medical board. As held by the Apex Court, the reference of constitution of a medical board is required only if the Commissioner is not satisfied by the medical evidence produced by the claimant. No specific provision was brought to the notice in the Act, which mandates that when such an application is made invariably the claimant should be referred to a medical board. The afore-extracted paragraph 10 of the decision in Raj Kumar's case (supra) reveals the method to be adopted for ascertainment of the effect of permanent disability on the actual earning capacity. The permanent disability was assessed under Ext.A5 as 25%. The loss of earning capacity in respect of the applicant was assessed,
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taking note of his avocation as a mini lorry driver. Taking note of the nature of work, definitely frequent use of the legs is required. The nature of the difficulties noted in Ext.A5 disability certificate and the assessed permanent disability would indicate that the assessed percentage of loss of earning capacity is not excessive. The appellant has taken a contention that in terms of Part II of Schedule I of the Act the maximum percentage of loss of earning capacity which could be reckoned for computing compensation for amputation below knee is only 50%. This is assigned as a reason to contend that the Commissioner had erred in fixing the loss of earning capacity at 45%. We do not find any force in the said contention. The effect of permanent disability on actual earning capacity would depend upon many aspects, such as nature of work, difficulties arising out of the permanent disability, etc. Though the Commissioner had not undertaken a detailed examination of such aspects, in view of a finding that Ext.A5 was rightly admitted into evidence and rightly acted upon and also taking note of the nature of the avocation taken up by the applicant and the nature of the difficulties noted in
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Ext.A5, we do not find any reason to interfere with the fixation of loss of earning capacity as 45% by the Tribunal. Consequently, the disinclination on the part of the Commissioner to refer the applicant to a medical board despite the filing of application in that regard by the appellant, cannot be said to be a gross error that warrants an appellate interference.
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awarded amount from the date of the accident. It is to be noted that simple interest is ordered only at the rate of 12% per annum till the date of realisation. This also cannot be said to be a matter warranting appellate interference.
In the light of the discussion as above, this appeal is to
be found as meritless. Consequently, the appeal stands dismissed.
Sd/C.T.RAVIKUMAR JUDGE
sd/MARY JOSEPH JUDGE
das
3 issues framed by the court
Whether the Commissioner erred in refusing to refer the claimant to a medical board despite the appellant's application?
Whether the Commissioner erred in fixing the loss of earning capacity at 45% based on an independent doctor's assessment?
Whether the Commissioner erred in directing interest to run from the date of the accident?
Colour shows how this judgement treated each authority
N.L. Lalan v. V.A. JohnReferred¶42
N.L. Lalan v. V.A. John
Raj Kumar v. Ajay KumarExplained¶68
2011 (1) KLT 620 (SC)
Oriental Insurance Co. Ltd
K.F. Sebastian
Maneesh Kannan
C.T. Ravikumar
Mary Joseph
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
