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2010 DIGILAW 3609 (MAD)

New India Assurance Company Limited v. K. Perumal

2010-08-19

B.RAJENDRAN

body2010
Judgment : The Insurance Company has come forward with these appeals as against the grant of Award by the Commissioner of Workmen’s Compensation in respect an injury sustained by two coolies. 2. According to the claimants, they sustained grievous injuries in the wrist and the Doctor has certified 15% disability. 3. The main ground of attack by the Insurance company was whether the Commissioner has got jurisdiction to assess the loss of earning that too, without assigning any reason. 4. Earlier, the Insurance company had raised a ground that there was a discrepancy in respect of the name of the person. Since the name of the owner as well as the name of the injured person is one and the same, namely, Murugan, the records have been called for and the learned counsel now fairly submitted that the said issue does not arise. They would only argue on the ground that the Commissioner has no jurisdiction to assess the earning power. 5. The learned counsel for the respondent submitted that both the injured persons travelled in the vehicle as coolies to supply 20 liter water can to the houses and it is unnecessary to take the coolies to deliver the water can from the vehicle to the particular delivery location, and, therefore, they are only delivery boys, who travelled along with the vehicle in the course of employment. Due to the accident, the claimant in C.M.A. No. 491 of 2007 sustained severe injuries in the wrist and the movement of the wrist has been affected, Which is rightly certified by a competent Doctor and since he was a cooly, his future earning power is definitely affected as the they are not able to lift weight. In C.M.A. No. 492 of 2007, the claimant sustained injury in the hip. Therefore, his movement will be restricted. Hence, the compensation awarded by the Commissioner on the basis of the assessment made by the Doctor is correct, legal and hence, they sustain the Award. 6. Heard both sides. 7. At the time of admission though 8 questions of law were framed, as rightly admitted by the learned counsel for the appellant, since the other questions were only in respect of discrepancy of the name and the charge sheet, the questions of law pertaining to 6, 7 and 8 alone are argued now, which reads as follows: “6. 7. At the time of admission though 8 questions of law were framed, as rightly admitted by the learned counsel for the appellant, since the other questions were only in respect of discrepancy of the name and the charge sheet, the questions of law pertaining to 6, 7 and 8 alone are argued now, which reads as follows: “6. Is not the Commissioner under the Act required to find whether the injuries will result in any loss of earning power with relation to the avocation of the workman? 7. Is a Commissioner under the Act has jurisdiction to assess the loss of earning power? 8. Is not the Commissioner under the Act required to assign reasons for his assessment?” 8. The main argument by the Insurance Company was as far as the workmen’s compensation Act is concerned, under Section 4(1)(c), the Commissioner has to assess the loss of earning power and also to give reasons for the same. Only then, the Award can be granted. In this case, though the Doctor has been examined, the Commissioner in his order has not given any specific assessment in respect of the loss of earning power but simply followed the assessment made by the Doctor. Therefore, the Award granted by the Court below is not sustainable under law. In C.M.A. No. 491 of 2007, P.W.2, Doctor, has given evidence that because of the injury caused to the wrist, he would sustain severe pain and he is unable to work. Therefore, he assessed 15% disability. In C.M.A. No. 492 of 2007, the Doctor has given evidence that in view of the injury sustained by the claimant in the hip, his movement is restricted. Therefore, Doctor has certified disability at 10%. Therefore, as far as the disability is concerned, in both the cases, Doctors have been examined. But when we analyse the judgment of the Tribunal, the Tribunal would only say that since, the Doctors have been examined and certified the disability, the Court has accepted it. Infact the wording of the Tribunal is as follows: C.M.A. No. 471 of 2007 9. Therefore, the Tribunal has fixed the disability at 15% and 10% in C.MA. Nos. 491 and 492 of 2007 respectively, based on the evidence of the Doctors and also on the assessment of the party in person before the Tribunal. Infact the wording of the Tribunal is as follows: C.M.A. No. 471 of 2007 9. Therefore, the Tribunal has fixed the disability at 15% and 10% in C.MA. Nos. 491 and 492 of 2007 respectively, based on the evidence of the Doctors and also on the assessment of the party in person before the Tribunal. Unfortunately, the word used by the Court below was disability and not the loss of earning power. This mere discrepancy cannot be taken note of by the Insurance company to substantiate the claim of the coolies. Insofar as disability is concerned, the Tribunal gave a finding based on the certificate issued by the Doctor as well as the evaluation made by it. In these circumstances, the argument of the learned counsel to the effect that there was no finding by the Tribunal with regard to loss of earning power cannot be accepted. In this connection, the learned counsel would rely upon the decision of the Hon’ble Supreme Court in (2007) 2 SCC 349 : (2007) 3 MLJ 49, for the proposition that loss of earning capacity without indicating any reason or basis cannot be ordered. Paragraphs 7 and 8 of the said judgment reads as follows at p. 52 of MLJ: “7. These cases related to injuries which were not specified in Schedule I and as 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% loss of earning capacity. Since no basis was indicated in support of the conclusion, same cannot be maintained. 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% 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 fact situation. Coming to the question of liability to pay interest, Section 4-A(3) deals with that question. The provision has been quoted above.” He would also rely upon the decision in (2009) 6 SCC 280 wherein it accepted the finding of the Tribunal and the compensation awarded was upheld. In paragraphs 38 and 39, it is stated as follows: “38. Shaik Baji was a cleaner of a truck. He suffered an injury on the leg. The disability was determined at 20% to 25%. The disablement was partial and not total. There was no basis for the High Court to assess the loss of earning capacity at 60%. 39. Respondent 1 being a cleaner, a fracture in the leg suffered by him would not amount to loss of permanent use of the limb i.e. the entire foot. The Note appended to the Second Schedule, therefore, has no application. Therefore, the judgment of the High Court is set aside and that of the Commissioner, Workmen’s Compensation is restored. Appeal is allowed accordingly.” But in the instant case, the Deputy Commissioner of Labour has clearly given a finding and reasoning to fix the disability and earning power. Hence, the above said rulings will not apply to the facts of this case. 10. Therefore, in these cases, since the Tribunal has accepted the disability given by the Doctor and assessed the same and merely because of the word used is wrong, it cannot be taken into account that the assessment has not been made by the Commissioner. Hence, the Award passed by the Court below is correct and the Award is fair and reasonable and correct and the question of liability is answered as against the appellant and the Court below has rightly awarded compensation. Hence, the appeals are dismissed costs. Consequently, connected MPs are closed.