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Wednesday, November 30, 2016

Under Section 4(1)(c)(ii) of the Act, the percentage of permanent disability needs to be assessed only by a qualified medical practitioner. There is no case for the respondents that the doctor who issued the disability certificate is not a qualified medical practitioner, as defined under the Act. Thus, the Workmen’s Compensation Commissioner has passed the order based on the certificate of disability issued by the doctor and which has been duly proved before the Workmen’s Compensation Commissioner. Under the scheme of the Act, the Workmen’s Compensation Commissioner is the last authority on facts. The Parliament has thought it fit to restrict the scope of the appeal only to substantial questions of law, being a welfare legislation. Unfortunately, the High Court has missed this crucial question of limited jurisdiction and has ventured to re-appreciate the evidence and recorded its own findings on percentage of disability for which also there is no basis. The whole exercise made by the High Court is not within the competence of the High Court under Section 30 of the Act.

                        IN THE SUPREME COURT OF INDIA



                        CIVIL APPELLATE JURISDICTION



                   CIVIL APPEAL NOS.  11114-11119  OF 2016
              (Arising out of S.L.P.(C) Nos. 6696-6701 of 2015)


GOLLA RAJANNA ETC. ETC.                         ...  APPELLANT (S)

                                   VERSUS

THE DIVISIONAL MANAGER
AND ANOTHER, ETC. ETC.                             ... RESPONDENT(S)



                           J  U  D  G  M  E  N  T

KURIAN, J.:



Leave granted.

The appellants are aggrieved by the order passed by the High  Court  whereby
the compensation awarded to them has  been  drastically  reduced.  The  High
Court re-appreciated the evidence and substituted its own  views  with  that
of the Workmen’s Compensation Commissioner and made a fresh assesment.
By order dated 16.02.2009, the Labour  Officer  cum  Workmen’s  Compensation
Commissioner, Division No. II, Bellary passed the following order:
“In considering  the  employment  of  the  petitioners,  documents  produced
before  the  court  and  the  evidence  of  the  doctor,   considering   the
disablement decided by the  doctor,  and  considering  that  the  respondent
No.2, failed to prove the allegations  denied  by  the  respondent  No.2,  I
decide that the petitioner No.1 has suffered 35%  of  the  disablement,  the
second petitioner has suffered 35% of the disablement, the third  petitioner
has suffered 35% of disablement, the 4th and 5th petitioners  have  suffered
40% of  disablement  each  and  6th  petitioner  has  suffered  35%  of  the
disablement with subsequent loss of earnings and  decided  the  above  issue
No.1 in favour of the petitioners.”


   Accordingly, the appellants were awarded the compensation based on  their
wages.
The  Insurance  Company  challenged  the  order  passed  by  the   Workmen’s
Compensation  Commissioner,   under   Section   30(1)   of   The   Workmen’s
Compensation Act, 1923 (hereinafter referred to as “the Act”) mainly on  the
ground  that  the  injuries  had  not  been  proved  before  the   Workmen’s
Compensation Commissioner, and therefore, the appellants were  not  entitled
to the compensation as awarded by the Workmen’s  Compensation  Commissioner.
The High Court has clearly held that … “the dispute is  in  respect  of  the
nature of injuries suffered by the claimants”.
The relevant consideration by the High Court appears at paragraph-9  of  the
impugned judgment:
“9.   … this Court is of the opinion that the accident appears  to  be  true
involving the offending lory, but, the injuries said  to  have  suffered  by
the claimants is not established, in as much as, there  is  no  document  on
record to substantiate the same, except the  wound  certificates  issued  by
the Community Health Centre immediately after  the  accident.  However,  the
said document also appears to be fabricated and fails in as much as, the  X-
ray stated in each of these certificate is not proved  by  any  one  of  the
petitioners before the Commissioner. Assuming for a moment  that  the  X-ray
of the claimant was taken, where it was taken and when it was taken  is  not
forthcoming. Admittedly, the Community Health Centre, are not provided  with
x-ray machine so as to take the X-ray and  assess  the  nature  of  injuries
suffered by the claimants. In that view of the matter, this Court feel  that
the entire exercise by the petitioners before the Commissioner is to  create
a make-believe situation to show that indeed in the said  accident  said  to
have taken place on 15.8.2008 (sic)  they  have  suffered  serious  injuries
which was resulted in permanent disability to whole  body  of  each  ranging
from 35% to 40% resulting in loss of earning capacity to  equal  percentage.
In that view of the matter, this Court feel that the grounds  urged  by  the
Insurance Company in these appeals appears to be true and correct  which  is
required to be upheld by this Court. ”


The High Court went further to hold that  on  the  basis  of  the  available
evidence, the disability would only be to the extent  of  5%  of  the  whole
body resulting in 5% of the loss of earning capacity.  Paragraph-10  of  the
impugned judgment deals with the issue, which reads as follows:
“10.  In that view of the matter, the common judgment and  order  passed  by
the Tribunal in these petitions before the Commissioner is  required  to  be
modified having regard to the nature of injuries and disability suffered  by
the claimants due to the accident. Accordingly, this Court  holds  that  all
the petitioners before the Tribunal have suffered disability to  the  extent
of 5% to the whole body resulting in 5% loss of earning capacity.”


Accordingly, the  compensation  has  been  reworked.  Thus,  aggrieved,  the
appellants are before this Court.
Section 30 of the Act provides  for  appeals  to  the  High  Court.  To  the
extent, the provision reads as follows:

“30. Appeals.-(1) An appeal shall lie to the High Court from  the  following
orders of a Commissioner, namely:-

(a) an order  awarding  as  compensation  a  lump  sum  whether  by  way  of
redemption of a half-monthly payment or otherwise or disallowing a claim  in
full or in part for a lump sum;

[(aa) an order awarding interest or penalty under section 4A;]

(b) an order refusing to allow redemption of a half- monthly payment;

(c) an order providing  for  the  distribution  of  compensation  among  the
dependants of a deceased workman, or  disallowing  any  claim  of  a  person
alleging himself to be such dependant;

(d) an order allowing  or  disallowing  any  claim  for  the  amount  of  an
indemnity under the provisions of sub- section (2) of section 12; or

(e) an order refusing to register a memorandum of agreement  or  registering
the  same  or  providing  for  the  registration  of  the  same  subject  to
conditions:
Provided that no appeal shall lie against any  order  unless  a  substantial
question of law is involved in the appeal and,  in  the  case  of  an  order
other than an order such as is referred to in clause (b), unless the  amount
in dispute in the appeal is not less than three hundred rupees:”
                                                         (Emphasis supplied)

 The Workmen’s Compensation Commissioner, having  regard  to  the  evidence,
had returned a finding on  the  nature  of  injury  and  the  percentage  of
disability. It is purely a question of  fact.  There  is  no  case  for  the
insurance company that the finding is based on no evidence at  all  or  that
it is perverse. Under Section 4(1)(c)(ii) of  the  Act,  the  percentage  of
permanent disability needs to  be  assessed  only  by  a  qualified  medical
practitioner. There is no case for  the  respondents  that  the  doctor  who
issued the disability certificate is not a qualified  medical  practitioner,
as defined under the Act. Thus, the Workmen’s Compensation Commissioner  has
passed the order based on  the  certificate  of  disability  issued  by  the
doctor and which has been duly  proved  before  the  Workmen’s  Compensation
Commissioner.
Under the scheme of the Act, the Workmen’s Compensation Commissioner is  the
last authority on facts. The Parliament has thought it fit to  restrict  the
scope of the appeal only to substantial questions of law,  being  a  welfare
legislation. Unfortunately, the High Court has missed this crucial  question
of limited jurisdiction and has ventured to re-appreciate the  evidence  and
recorded its own findings on percentage of disability for which  also  there
is no basis. The whole exercise made by the High Court  is  not  within  the
competence of the High Court under Section 30 of the Act.
Accordingly, the appeals are allowed. The impugned  common  judgment  passed
by the High Court is set aside. The order dated  16.02.2009  of  the  Labour
Officer cum Workmen’s Compensation Commissioner, Division  No.  II,  Bellary
in W.C.A. Nos. 229/2008 to 234/2008 is restored.

There shall be no orders as to costs.


                                  ........................................J.
       (KURIAN JOSEPH)




                                                        ......………………………………J.
(ROHINTON FALI NARIMAN)

New Delhi;
November 23, 2016.
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                                                                  REPORTABLE





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