National Insurance Company Limited v. V.A. Ansar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.M.JOSEPH** **& THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **TUESDAY, THE 2ND DAY OF JULY 2013/11TH ASHADHA, 1935** **MFA.No. 140 of 2010 ( D ) ------------------------** **AGAINST THE ORDER/JUDGMENT IN WCC 41/2002 of W.C.C.,ERNAKULAM DATED 11-03-2010.** **APPELLANT(S)/2ND OPPOSITE PARTY:** **--------------------------------** **NATIONAL INSURANCE COMPANY LIMITED, PERUMBAVOOR, NOW REPRESENTED BY ITS MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDING, PADMA JUNCTION, KOCHI-35.** **BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW.** **RESPONDENT(S)/APPLICANT:** **-----------------------** **V.A.ANSAR,S/O.ABDU.V.A, VAYALIL HOUSE, NETTOOR.P.O.** **BY ADV. SRI.JOLLY JOHN BY ADV.SRI RAJAN .P.KALIYATH, AMICUS CURIAE BY SENIOR GOVT PLEADER SRI TOM.K.THOMAS.** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 02-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **amk** ## **K.M.JOSEPH & A.HARIPRASAD, JJ.** ## **------------------------------------------------** ## **M.F.A (WCC) No.140 OF 2010** **------------------------------------------------Dated this the 2[nd] day of July, 2013.** ## **J U D G M E N T** ## **K.M.Joseph, J.** The appellant is the 2[nd] opposite party/insurer in a proceedings under Section 22 of the Workmen's Compensation Act, 1923 (hereinafter referred to as 'the Act'), by which the Commissioner has directed the appellant to pay a sum of Rs.4,20,279/- with interest at the rate of 12% from the date of accident. The first respondent/claimant was found to have suffered injuries when he drove an auto rickshaw on 02-06-2002. He was found to be the employee of the first opposite party in the proceedings. The Commissioner relied on Ext.C1 which is the disability certificate issued by the Medical Board, District Medical Office, Ernakulam which certified that he was having permanent physical disability of 90%. It was found in the certificate that the employee suffered hearing loss in the right ear profound and also in the left ear, it was noted that there was moderate severe mixed hearing loss as per the Audiogram. It was accordingly that taking the ## **M.F.A (WCC) No.140 OF 2010 2** percentage of disability of 90% calculation was done and the amount ordered. 2. We heard the learned Senior counsel for the appellant and the learned counsel for the claimant. 3. Learned counsel for the appellant would submit that even the claimant had claimed the disability at 50%. Subsequently no doubt, the claim was amended. But the amount awarded by the Commissioner is even higher than what is claimed under the amended claim. He would point out that under the Schedule to the Act for absolute loss of hearing 100% is the loss of earning capacity. He would point out in this case that there is only loss of hearing in regard to one ear and yet 90% is ordered to be given. He would draw our attention to the Full Bench decision of this court reported in _**Vanajakshan v. Joseph ( 2003(2) K.L.T 462 (F.B)** ._ Therein, the Full Bench, inter alia observed as follows :- “A perusal of the C1.(1) of S.2 shows that the disablement has to be considered in the context of the injury incapacitating the workman “for all work” and not for the work ## **M.F.A (WCC) No.140 OF 2010 3** for which he was actually employed. The reference is to the work, which the workman “was capable of performing at the time of accident” and not to that which he was actually doing. In other words, the disablement has to be determined with reference to the loss of ability to do any work, which the employee was capable of doing. The compensation is for loss of wages or the earning capacity and not for the physical suffering of pain or the expense on treatment etc. A cumulative consideration of the provisions contained in Ss.2, 3 and 4 clearly shows that the intention of the Legislature was to compensate the workman for loss of earning capacity and not for the failure to perform the duties of the particular post on which he was actually working. The compensation has to be determined with reference to the loss in earning capacity and not the ability to perform the duties of the job, which was being done by the workman at the relevant time. The compensation has to be assessed on the basis of the percentage of the loss of earning capacity. While determining the loss of earning capacity the authority has to keep in view the loss of capacity of a workman “for all work which he was capable of performing” and not for the work which he was actually doing. The competent authority has to award compensation on the basis of evidence adduced by the parties during the proceedings. The compensation has to be assessed with reference to the loss in earing capacity and not on the basis of the ability to perform the duties of the particular ## **M.F.A (WCC) No.140 OF 2010 4** job, which was being performed by the workman. If, in a given case a workman is able to prove that the was incapable of doing any other job, the competent authority shall consider and decide the matter in the light of the evidence as adduced by the parties.” 4. We noticed that pursuant to the order passed by this court, a medical certificate has been send up by the Medical Board. Therein also it is stated that there is profound hearing loss as far as the right ear is concerned. In regard to the left ear, it is stated as follows : Severe sloping S.N at higher frequency as per Audiogram. The permanent/partial disability is assessed at 50% and it comes under hearing disability. 5. The learned counsel for the respondent/claimant would submit that this is a case where no interference is called for and 90% arrived at by the Commissioner is correct. She would point out that there is hearing loss which affects both the ears and not one ear alone. 6. In this case we have to bear in mind what the Full Bench adverted to that is to say the loss of earning capacity must be **M.F.A (WCC) No.140 OF 2010 5** assessed with regard to not only the employment which the employee was carrying on or was engaged in at the time of accident, but also with regard to all work that he was capable of doing. In regard to this aspect of the matter both Ext.C1 and the certificate which has been obtained pursuant to the order passed in the appeal are silent. The applicant was 22 years of age. It is also pointed out by the learned counsel for the respondent that he studied upto 10[th] standard. We are having two certificates before us, one indicating 90% and another indicating 50%. In the facts of this case, we may not be unjustifiable in fixing the loss of earning capacity at 70%. We cannot assess the loss at 50% as claimed by the appellant, though it may have been the basis of claim originally by the claimant. This is for the reason that the hearing loss has affected both the ears. In regard to one ear it is profound hearing loss and in regard to the other ear there is hearing loss though not profound. Therefore, we are inclined to take the hearing loss at 70% keeping in view the judgment of the Full Bench also, his age and also the jobs which at ## **M.F.A (WCC) No.140 OF 2010 6** that age he could possibly do. As far as the question relating to interest payable from the date of the accident is concerned learned Senior counsel does not dispute that the matter is to be answered against the appellant by virtue of the judgment of the Apex Court reported in _**Oriental Insurance Co. Ltd. v. Siby George (2012(3) K.L.T 544 (S.C))**_ and we do so. 7. On the basis of the aforesaid reasoning and finding, the order of Commissioner would have to be modified as follows :- Taking the loss of earing capacity at 70%, the amount payable would be Rs.3,26,883.90/-. i.e., round it as Rs.3,26,884/-. The appellant will be liable to pay the said amount with interest at 12% from the date of accident till the date of payment. Any amount which the appellant has deposited in excess of the same will be refunded to the appellant. 8. In this case we notice that there is an interim order passed by the Division Bench, dated 24[th] July, 2012 in this appeal along with another appeal namely M.F.A No.33/2007. The bench **M.F.A (WCC) No.140 OF 2010 7** noted the problems faced by the claimants. In that the loss of earning capacity is not being determined. Learned Government Pleader was asked to obtain necessary instruction from the Government. Sri.Rajan P.Kaliyath was also asked to assist the court as _amicus curiae_ . An affidavit has been filed by the Director of Health Services and also on behalf of the Commissioner for persons with disabilities. In the affidavit filed by the Director of Health Services, it is inter alia stated as follows :- “The Department is authorised only for issuing Medical Certificate for the physically handicapped. As per G.O (P) No.161/97/H&FWD dated Thiruvananthapuram 15[th] May 1997 Government have constituted standing Disability Assessment Board in all Medical College Hospitals, District Hospital/General Hospital in the Districts where there is no Medical College and at Taluk Head Quarters Hospital, Idukki for the assessment of disability of all disabled persons. The authority of the Standing Disability Assessment Board is ## **M.F.A (WCC) No.140 OF 2010 8** to examine the disabled persons and issue Disability Certificate for claiming special conveyance allowances for State/Central Government employees, employees of the public sector undertaking etc and for the purpose of registration in the employment exchanges for joining new appointments etc. Appeals against the assessment of Standing Disability Assessment Board will be heard by the Appellate Medical Board which is constituted at the Medical College Hospital, Thiruvananthapuram with the Chairmanship of the Superintendent of Medical College Hospital, Thiruvananthapuram.” 9. Thereafter it is submitted that the committee requires to be constituted in each District with the following members for assessing the loss of earning capacity of an injured :- - “1. A retired judicial officer not below the rank of a District Judge. 2. A Medical Officer specialised in the field of Physical Medicine & Rehabilitation in the Government Sector not below the rank of a Senior Consultant. 3. An Officer from the Labour Department not below the rank of Assistant Labour Officer. ## **M.F.A (WCC) No.140 OF 2010 9** 4. A special invitee from the field of Disabled person.” 10. We heard the learned Government Pleader. The learned _amicus curiae_ would in fact bring to our notice of Section 32 (r) of the Act. Section 32 deals with the power of the State Government to make rules. It provides Government may make rules for prescribing the manner in which, and the standards by which, incapacity may be assessed. 11. We are in agreement with a view expressed by the learned Judges who noticed the _lacuna_ in the matter of Medical Board or Medical practitioners very often not indicating the loss of earning capacity. In this connection, there cannot be no doubt that the compensation in respect of unscheduled injuries is to be determined on the basis of the proportionate loss of earning capacity under Section 4(1)(c)(ii). We would expect that the State Government will take into consideration the fact that the Act has conferred power to make rules, so that the practitioners are guided by the principles which are laid down in the rules. As far as **M.F.A (WCC) No.140 OF 2010 10** constituting the committee which is proposed in the affidavit under the Director of Health Services, we do not think that it may not be feasible or practicable or in keeping with the Act which in fact contemplates the assessment by a medical practitioner. In fact, it is not necessary that there should be a Board as such. No doubt if the assessment by the medical practitioner is found objectionable it is open to a party to request for the Constitution of a Medical Board. Any way, the exercise is one which is to be done by the medical practitioner or practitioners. The appeal is allowed as above and with the observations as noted above. A copy of this judgment will be sent to the Secretary, Ministry of Labour, so that he may consider the effect of the power conferred under Section 32 (r) of the Act. Sd/- **K.M.JOSEPH, JUDGE. Sd/-** amk **A.HARIPRASAD, JUDGE.** **//True Copy//** **P.A to Judge**