High Court of KeralaSingle Judge2008-05-26Remanded to the Workmen's Compensation Commissi...

K.M. Bakker v. Kerala Books and Publications Society

Case / Petition Number:MFA.No. 88 of 2004

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: M.N.KRISHNAN, J.
Judgment Date: 2008-05-26
Court Decision / Holding: The appeal is allowed in part. The order of the Workmen's Compensation Commissioner is set aside and the case is remanded to the Commissioner with a directive to assess the loss of earning capacity, if any, in the backdrop of the permanent partial disability certificate; both parties may adduce evidence or produce additional documents, and the matter should be disposed of within three months from receipt of the order; the Commissioner shall fix the date of appearance for the parties.
Final Disposition: Remanded to the Workmen's Compensation Commissioner for reconsideration of the loss of earning capacity, with directions to reassess in light of the permanent partial disability certificate and to allow additional evidence within three months; the case is to be disposed within the specified period.

Parties to the Case

Appellants / Petitioners

K.M. Bakker, Kalappurackal Thaf Mahal, Door No.5/99, Model Engineering College Road, Thrikakkara P.O., Cochi-21

Respondents

KERALA BOOKS AND PUBLICATIONS SOCIETY, Kakkanad P.O., Cochin-30, represented by its Managing Director

Legal Representation & Advocates

Counsels for Petitioners

• Sri P. Ramakrishnan
• Smt. T.C. Krishnan

Counsels for Respondents

• Sri K. Anand (A.201)
• Smt. Latha Krishnan

Case Synopsis & Summary

This miscellaneous first appeal is preferred by the appellant-workman against an order of the Workmen's Compensation Commissioner, Ernakulam in WCC No.152/98. The appellant reportedly sustained an employment injury described as a fracture of the left patella, and a medical board certificate later certified permanent partial disability at 25%. The Commissioner below found the disability at 5% and awarded compensation, which the appellant challenges. The central legal question is whether the Workmen's Compensation Commissioner can determine or fix the disability of a workman when a disability certificate from a medical board is available, without recourse to further evidence. The judgment notes that while Sec. 20(3) of the Workmen's Compensation Act empowers the Commissioner to refer to experts or to summon doctors in case of ambiguity, a medical board certificate that clearly states a 25% permanent partial disability does not automatically equate to loss of earning capacity unless supported by evidence. The Court cites earlier decisions holding that a Commissioner cannot base compensation solely on surmises or on the disability certificate without considering the loss of earning capacity and other materials. The matter requires reconsideration before remand. The Court sets aside the lower order and remands the case to the Commissioner with directions to assess loss of earning capacity (if any) in light of the available certificates and to allow the parties to adduce evidence within three months. The appeal is partly allowed and the matter can be disposed of within the specified time frame.

Provisions of Law Cited

Sec. 20(3) of the Workmen's Compensation ActSec. 4(1) of the Workmen's Compensation Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Workmen's Compensation Commissioner cannot determine disability or loss of earning capacity in isolation when a medical board certificate exists; the certificate fixing 25% permanent partial disability must be correlated with loss of earning capacity, and where there is ambiguity or lack of direct evidence, Sec. 20(3) permits referring to experts or summoning doctors; the order awarding compensation based on a 5% disability should be revisited; consequently, a remand is required to reassess loss of earning capacity in light of the certificate and evidence.

Contentions of Respondents

The respondents argue that loss of earning capacity must be determined with proper evidence and the absence of explicit loss of earning capacity in the medical certificate necessitates reliance on best available materials; the court may consider medical certificates but cannot rely on surmises; hence the WCC should reassess in compliance with Sec. 20(3) and other evidence.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
New India Assurance Co. Ltd. v. Sreedharan	1995 (1) KLT 275 (FB)	Positive	Cited for principle that the Commissioner can refer the workman to expert opinion under Sec. 20(3) and cannot decide compensation solely on certificate or surmises; supports the view that loss of earning capacity must be assessed with suitable materials.
United India Insurance Co. v. Mohanan	2000 (3) KLT 473	Positive	Cited to show that the Commissioner cannot independently assess loss of earning capacity; corroborates the need for expert evidence or best materials, aligning with the present remand approach.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE M.N.KRISHNAN** **MONDAY, THE 26TH MAY 2008 / 5TH JYAISHTA 1930** **MFA.No. 88 of 2004()** **-------------------WCC.152/1998 of W.C.C.,ERNAKULAM** **....................** ## **APPELLANT: PETITIONER** **---------------------** **K.M. BAKKER, KALAPPURACKAL THAF MAHAL, DOOR NO.5/99, MODEL ENGINEERING COLLEGE ROAD, THRIKKAKARA P.O., COCHI-21.** **BY ADV. SRI.P.RAMAKRISHNAN SMT.T.C.KRISHNA** ## **RESPONDENT: OPPOSITE PARTY:** **----------------------------** **KERALA BOOKS AND PUBLICATIONS SOCIETY, KAKKANAD P.O., COCHIN-30, REPRESENTED BY ITS MANAGING DIRECTOR.** **BY ADV. SRI.K.ANAND (A.201) FOR R1 SMT.LATHA KRISHNAN FOR R1** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 26/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **M.N.KRISHNAN, J.** ## **-------------------------M.F.A. No. 88 OF 2004** **--------------------Dated this the 26[th] day of May, 2008** ## **JUDGMENT** This appeal is preferred against the order of the Workmen's Compensation Commissioner, Ernakulam, in WCC No.152/98. It is the case **of** the appellant that he had sustained employment injury and claimed compensation. The employers denied the factum of accident itself. But the court below found the disability of the appellant as 5% and awarded compensation. It is against that decision, the present appeal is filed. 2. The question of law mainly canvased before me is regarding the competency of the Workmen's Compensation Commissioner to fix the disability when there is a disability certificate issued by the Board without recourse to any other evidence. A perusal of the award would reveal that according to the worker there has been an employment injury that is in the form of a fracture on the left patella. He was referred to a medical board at the instance of the employer and the medical board, after examination, granted him a certificate showing the permanent partial disability at 25%. It had MACA NO.88/04 2 also held that he was having pain and sufferings on the left knee resulting from the fracture sustained in the left patella. When the matter reached the stage of evidence, it was challenged. Even prior to the same the employer directed the documents to be produced and gave a reply holding that such a disability is not there for the appellant. I am not going elaborately into the materials for the reason that the matter requires reconsideration at the hands of the Workmen's Compensation Commissioner. 3. In the decision reported in **New India Assurance Co. Ltd. v. Sreedharan** [1995 (1) KLT 275 (FB)] had considered the competency of the Workmen's Compensation Commissioner to assess the disability and held that “ what Sec. 20(3) provides is that the Commissioner may, for the purpose of deciding any matter referred to him for decision under the Act, choose one or more persons possessing special knowledge of any matter relevant to the matter under inquiry to assess him in holding the inquiry. The power is there to Commissioner to refer the workman to any other expert for opinion. Of course, the Commissioner can summon the doctor when there is ambiguity in th certificate as to the loss of earning capacity and examine him. The court held that despite all these powers the MACA NO.88/04 3 Commissioner without having recourse to them can assess compensation on his surmises would be too far fetched. Again a Division Bench of this court relying on the said decision in **United India Insurance Co. v. Mohanan** [2000 (3) KLT 473] held that Commissioner himself cannot assess the loss of earning capacity. 4. Unfortunately in the case on hand before me, the medical certificate is totally silent about the loss of earning capacity. But there is a mention about the 25% permanent partial disability. A reading of the definition of partial permanent disablement and entitlement under Sec. 4(1) of the Workmen's Compensation Act all would reveal that it is the loss of earning capacity that entitles a workman to get compensation under the Act. It is true that in ordinary cases when there is permanent partial disability it will have a direct bearing on the earning capacity as well. But it is the duty of the authority deciding the matter to find out from the best possible materials regarding the loss of earing capacity and then assess the compensation that a person is entitled to. There is no power left with the Workmen's Compensation Commissioner to assess himself about the loss of earning capacity when there is a medical board certificate clarifying that point. So the matter requires MACA NO.88/04 4 reconsideration and therefore the order under challenge is to be set aside. Therefore, I set aside the order passed by the court below and remand the case back to the Workmen's Compensation Commissioner with a specific direction to assess the loss of earning capacity if any also in the backdrop of the permanent partial disability certificate available before it and permit both parties to adduce evidence in support of their respective contentions or to produce additional documents to supplement their rival contentions and then decide the question of loss of earning capacity if any and revise the order regarding the entitlement of compensation to the claimant. The matter can be disposed of within a time frame of three months from the date of receipt of a copy of the order. The Workmen's Compensation Commissioner shall also issue notice fixing the date of appearance of the parties. ## **M.N.KRISHNAN, JUDGE** vps MACA NO.88/04 5 MACA NO.88/04 6 MACA NO.88/04 7