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Samir U. Parikh Vs. Sikandar Zahiruddin - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtMumbai High Court
Decided On
Judge
Reported inII(1984)ACC325; 1984MhLJ38
AppellantSamir U. Parikh
RespondentSikandar Zahiruddin
Excerpt:
- code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power..........the commissioner for workmen's compensation has jurisdiction or power to assess the percentage of loss of earning capacity more than what is indicated against the particular injury in part ii of schedule i of the act.2. the admitted facts are that the applicant workman was in the. employment of the appellant. at about 5.30 p.m. on the 1st september, 1976 while he was on duty, loading iron sheets in a motor lorry, a bundle of iron sheets weighing about 21/2 tons fell on his right leg. as a result, his right foot was injured and had to be amputated completely below the ankle. the stump left after the amputation had an unhealthy skin-flap which did not adhere to the bone. the stump was also not ideal for artificial limb-fitting. it gave a biting pain and the workman was unable to put his.....
Judgment:

P.B. Sawant, J.

1. This appeal under the Workmen's Compensation Act, 1923 (hereinafter referred to as 'the Act') raises an important question of law. namely, whether the Commissioner for Workmen's Compensation has jurisdiction or power to assess the percentage of loss of earning capacity more than what is indicated against the particular injury in Part II of Schedule I of the Act.

2. The admitted facts are that the applicant workman was in the. employment of the appellant. At about 5.30 p.m. on the 1st September, 1976 while he was on duty, loading iron sheets in a motor lorry, a bundle of iron sheets weighing about 21/2 tons fell on his right leg. As a result, his right foot was injured and had to be amputated completely below the ankle. The stump left after the amputation had an unhealthy skin-flap which did not adhere to the bone. The stump was also not ideal for artificial limb-fitting. It gave a biting pain and the workman was unable to put his weight on it since it was also 31/2' off the ground. He had suffered a severe waste of the muscles of his calf and thigh, and had to walk with the aid of a crutch. He was also unable to squat on the floor on his haunch. The medical evidence showed that the disability though partial was permanent and that the workman would not be able to do the work as a lorry-cleaner for which he was employed at the time of the accident or to do any other work which required him to stand. According to the medical opinion, further the permanent partial disability was to the extent of 40 per cent.

3. The workman filed his application for compensation under the Act alleging that he had sustained a total loss of his earning capacity on account of the said injury, and claimed a compensation of Rs. 29,400/- on that basis. The application was resisted by the opposite party on various grounds. Since the risk in question was covered by an insurance policy from the United India Fire and General Insurance Co. Ltd., the company deposited an amount of Rs. 8,820 as compensation with the Commissioner during the pendency of the proceedings, on the basis that the workman had sustained an injury which as per the Schedule of the Act, showed a loss of only 30 per cent of his earning capacity. The only contention which was raised on behalf of the opposite party before the learned Commissioner was that the injury in question fell within the description of the injury given either at Sr. No. 22 or at best at Sr. No. 21 in the part II of Schedule I of the Act, and the workman was entitled to compensation only on the basis that the loss of his earning capacity was either 30 per cent or 40 per cent respectively. The opposite party therefore urged that the compensation payable to him should be calculated accordingly and not on the basis of 100 per cent loss of the earning capacity as claimed by the workman. As against this, the contention advanced on behalf of the workman was that since he had sustained a total loss of his earning capacity, he should be awarded compensation on that basis. The learned Commissioner held that although the injury in question answered the description of the injury listed at Sr. No. 21 and the loss of earning capacity shown in the Schedule against the said injury was 40 per cent, it was open for the workman to prove that the actual loss of his earning capacity was more. Since in the present case the workman proved that the actual loss of his earning capacity was 80 per cent, the learned Commissioner awarded compensation of Rs. 23,520 on that basis. It is this order of the Commissioner which is challenged before me.

4. The only question agitated in this appeal as stated earlier is whether the Commissioner had power to assess the loss of earning capacity more than what was indicated in the Schedule against the injury. Mr. Kudrolli, the learned Counsel appearing for the appellant took me through the relevant provisions of the Act and contended that the said provisions indicated that the percentage of the loss of earning capacity and the amount of compensation to be paid for the injuries mentioned in the Schedule were fixed by the statute, and once an injury answered the description given in the Schedule, the Commissioner had no power to assess the loss at a higher percentage and grant compensation on such assessment. For reasons more than one, I am not inclined to accept this contention.

5. The relevant provisions of the Act show that when the legislature stated in the Schedule the percentage of the loss of earning capacity against the injuries listed therein, the legislature had no intention of suggesting, much less laying down that the loss of earning capacity so stated should be the maximum that can be assumed in each case and that the Commissioner should have no power to assess it at a higher percentage, although the evidence warranted it.

6. As the preamble of the Act shows, it is placed on the statute book to provide for compensation for injuries sustained in accidents during the course of employment by workman of certain classes of employers. Injuries are classified by the Act in four categories, namely, those resulting in (i) permanent total disablement, (ii) permanent partial disablement, (iii) temporary total disablement, and (iv) temporary partial disablement. The expressions 'partial disablement' and 'total disablement' have been defined in Section 2(1)(g) and 2(1)(e) respectively as follows:

2. In this Act, unless there is anything repugnant in the subject or definitions context,.

(g) 'partial disablement' means, where the disablement is of a temporary nature, such disablement as reduces the earning capacity of a workman in any employment in which he was engaged at the time of the accident resulting in the disablement, and, where the disablement is of a permanent nature, such disablement as reduces his earning capacity in every employment which be was capable of undertaking at that time: provided that every injury specified in part II of Schedule I shall be deemed to result in permanent partial disablement:

(1) 'total disablement' means such disablement, whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement:

Provided that permanent total disablement shall be deemed to result from every injury specified in part I of Schedule I or from any combination of injuries specified in part II thereof where the aggregate percentage of the loss of earning capacity, as specified in the said part II against those injuries, amounts to one hundred per cent or more.

7. A persual of these definitions shows that expressions have been defined with reference to the reduction in the earning capacity of the workman Further, while 'temporary disablement' is defined with reference to the reduction in the earning capacity in the employment in which the workman was engaged at the time of the accident, 'permanent disablement' is defined with reference to the reduction in the earning capacity in every employment which the workman was capable of undertaking at the time of the accident (italics supplied). The two definitions further lay down a rule of evidence, namely, that every injury which is specified in part II of Schedule I shall be deemed to result in permanent partial disablement whereas every injury specified in part I thereof shall be deemed to result in permanent total disablement. According to the said rule, further, any combination of injuries described in part II where the aggregate percentage of the loss of earning capacity as specified against the injuries amounts to 100 per cent or more, it will be presumed that there is a permanent disablement from the said injuries. There is yet another rule of evidence incorporated in the note appended at the end of the said Schedule which states that complete and permanent loss, of the use of any limb or member referred to in the said Schedule shall be deemed to be the equivalent of the loss of that limb or member.

8. Chapter II of the Act deals, among other things, with the employer's liability for compensation, the amount of compensation to be paid, the penalty for default in payment, the method of calculating wages, commutationof half monthly payment and distribution of compensation. Sub-section (1) of Section 3 of the Act begins with the expression 'if personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter...' Sub-section (5) thereof states as follows:

(5) Nothing herein contained shall be deemed to confer any right to compensation on a workman in respect of any injury if he has instituted in a Civil Court a suit for damages in respect of the injury against the employer or any other person; and no suit for damages shall be maintainable by a workman in any Court of law in respect of any injury.

(a) if he has instituted a claim to Compensation in respect of injury before a Commissioner; or.

(b) if an agreement has been come to between the workman and his employer providing for the payment of compensation in respect of the injury in accordance with the provisions of this Act.

9. The provisions of Section 4(1)(a), (b) and (c) which are important for our purpose state as follows:

4. (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:

(a) Where death results from the injury and the deceased workman has been in receipt of monthly wages falling within limits shown in the first column of Schedule IV--the amount shown against such limits in the second column thereof;

(b) Where permanent total disablement results from the injury and the injured workman has been in receipt of monthly wages falling within limits shown in the first column of Schedule IV--the amount shown against such limits in the third column thereof;

(c) Where permanent partial disablement results from the injury

(i) in the case of an injury specified in part II of Schedule I, such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury, and

(ii) in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity permanently caused by the injury;

Explanation--Where more injuries than one are caused by the same accident, the amount of compensation payable under this head shall be aggregated but not so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries;

Sub-section (2) of Section 4 then refers to occupational diseases peculiar to certain employments and declares that the contracting of a decease described in Schedule III of the Act shall be deemed to be an injury by accident within the meaning of the said Section.

10. When the provisions of a legislation are either ambiguous or not explicit the nature and object of the legislation may aid and assist their interpretation. The present. Act has, true to its object, provided a separated, speedy and cheap forum to the workman or his dependent for claiming compensation, and for that purpose has given wide powers to the Commissioner who is entrusted with the adjudication of the claim. Sub-section (5) of Section 3 read with Sub-section (2) of Section 19 of the Act then makes it clear that if a workman institutes a suit for damages in a civil Court, he will not be entitled to claim compensation under the Act, and vice versa. The provisions also bar a civil Court from settling, deciding or dealing with any question which is by or under the Act required to be settled, decided or dealt with by the Commissioner, or from enforcing any liability incurred under the Act. This prohibition is significant in that whereas in a civil Court a workman can claim compensation beyond the amount which has been specified under the Act, by proving, among other things, the extent of not only the loss of his earning capacity, but also the actual and probable loss of his earnings, under the Act the amount of compensation that he can claim even when he proves 100 per cent loss of his earning capacity is restricted to that specified in Schedule IV of the Act. In some cases, therefore, a workman is faced with a Hobson's choice. The remedy in civil Court though attractive in terms of the amount of damages that he can claim, is both costly and dilatory, and once he chooses the forum under the Act, the damages are restricted to a specified amount. Hence, the importance of the question as to whether under the Act the workman is also deemed to have suffered only the specified loss of the earning capacity and prevented from proving the actual loss of the earning capacity.

11. The provisions of the Act referred to above show that the Legislature has presumed that when a workman suffers injuries described in part I of Schedule I he suffers a permanent total disablement. It has also presumed that the said injuries result in 100 per cent loss of the workman's earning capacity. Once the injuries in question are proved, the loss of the workman's earning capacity is deemed to be total and the employer cannot be heard or even permitted to prove that it is less than that. A glance at the said injuries shows that they are of such nature as are normally expected to put a workman completely out of work and a workman suffering any of the said injuries is not expected to be hired for any work. That in some cases, out of charitable motives or otherwise, a workman even with such an injury may be engaged and may earn even more than he did before he suffered the injury, is besides the point.

12. The question of determining the loss of earning capacity arises under the Act in three cases, viz., (i) in cases of injuries described in part II of Schedule I which are deemed to result in permanent partial disablement, (ii) in cases of injuries which are not listed in the said Schedule, and (iii) in cases of occupational diseases listed in Schedule HI. In cases of injuries not listed in Schedule I and of the occupational diseases listed in Schedule III, the Commissioner has to decide the percentage loss of the earning capacity. The Act gives no guidance to the Commissioner for determining the loss in such cases. The provision of Sub-clause (ii) of Sub-section (c) of Sub-section 4 reproduced above, merely states that in case of a non-scheduled injury, such percentage of the compensation payable in the case of permanent total disablement should 'be paid to the workman as is proportionate to the loss of earning capacity permanently caused by the injury. In other words, in each case the Commissioner has to determine the extent of the loss of the earning capacity and calculate the amount of compensation in proportion to that payable in case of 100 per cent loss of the earning capacity. It may be pointed out that under Clause (r) of Sub-section (2) of Section 32, the State Government has been given power to make rules 'for prescribing the manner in which and the standard by which incapacity may be assessed'. I have not been pointed out any such rules made in the case either of the scheduled or non-scheduled injuries. However, it appears that the State Government has made Maharashtra Workmen's Compensation (Occupational Diseases) Rules, 1962, under the said clause read with Clauses (p) and (q) of the said Sub-section. As the title and the contents of the said Rules show, they cover cases only of workman employed in employments mentioned in part C of Schedule III of the Act. Rule 3(b) of the said Rules defines occupational diseases mentioned in Part C of the said Schedule. Rule 4 constitutes a Pneumocomosis Medical Board for the conduct of medical examinations, submission of medical reports and the grant of medical certificates for the said diseases. Then Rule 5 details the conditions under which pneumocomosis may be considered to be an occupational disease. Then follows Rule 6 which is relevant for our present discussion and which reads as follows:

6. Evaluation of disablement.--(1) The evaluation of disablement shall be made by reference to the physical (anatomical, physiological and functional) and mental capacity for the exercise of the necessary functions of a normally occupied life which would be expected in a healthy person of the same age any sex. For such assessment recognised cardio-respiratory function tests shall be used to assess the degree of cardio-respiratory function impairment.

(2) It shall be determined whether the disablement is temporary or permanent and also the percentage loss of functions as it pertains to the loss of working capacity for receiving compensation.

(3) Assessment of disablement shall be proportionate to the loss of earning capacity, total disablement being taken to be 100 per cent, loss of earning capacity.

Explanation--For the purpose of this rule, permanent disablement, shall mean such disablement as is certified to be permanent by the Medical Board.

13. As per Rule 7 the claim for compensation in respect of a workman contracting any of the said occupational diseases has to be supported by a certificate issued by a qualified medical practitioner in Form A appended to the Rules and the said Form enjoins upon the medical practitioner to state, among other things, his assessment of the permanent disability in terms of percentage. The said Rule further requires that where the contracting of such a disease has resulted in death or permanent disablement, the claim has to be supported by an endorsement on the certificate by the Medical Board, and in case of a difference of opinion between the qualified medical practitioner and the Medical Board the opinion of the Board shall prevail. The endorsement of the Board has to be in Form 'B' appended to the said Rules and the Form requires the Board among other things also to assess the permanent disability in percentage terms. Rules 6 and 7 and Forms 'A' and 'B' of the said Rules read together leave no doubt that the assessment of disability by the medical practitioner and the Board has to be in terms of the working or earning capacity.

14. As things stand today, the claim for compensation in any other case, does not require to be supported by a medical certificate nor is there a requirement that the medical certificate, if any, should state the percentage of disablement in terms either of physical of earning capacity. However, practice has grown whereby even in such cases medical certificates are produced and the certificates state the percentage of permanent disability. Often, the medical practitioners themselves are examined and through, them the percentage of permanent disablement is brought on record. A question therefore arises in such cases as to whether the medical evidence can speak only to the physical capacity or can go beyond, and also assess the earning capacity of the injured workman. The fact however remains that unlike in the case of the occupational diseases (and that too, mentioned in part C of Schedule III), there are no guidelines in other cases for the manner and method of evaluation of the disablement. It is possible to argue that this is because unlike in Schedule I, the percentage loss of earning capacity has not been indicated against the diseases in Schedule III. But even in such cases, the question still remains, as to whether the medical opinion with regard to the assessment of the disablement in terms of the loss of earning capacity should be binding on the Commissioner. The only difference, in this respect, between the injuries described in part II of Schedule I and the occupational diseases mentioned in part C of Schedule III is that while in the former case percentage of the loss of earning capacity is indicated in the Schedule itself, in the latter case by virtue of the Rules of 1962, it is to be assessed by the medical practitioner or the Medical Board as the case may be. Should this distinction make any difference to the answer to the question raised in the present case namely whether the Commissioner has powers to assess the loss of earning capacity on his own? According to me, it should not.

15. There is nothing in part II of Schedule I to suggest that the Legislature has presumed that the loss of earning capacity mentioned against each of the injuries is the maximum. In the first instance, such an interpretation would render nugatory the object of the Act itself which is to compensate the workman not merely for the injury and the loss of his physical capacity but for the loss of his earning capacity. There is no warrant for presuming that in every case a loss of the same limb would result in the loss of earning capacity to the same extent. The loss of earning capacity has an intimate relation with the nature of the work the workman was doing or was capable of doing at the time of his accident. The different limbs have different utility for workmen doing different work. The earning capacity of an unskilled labourer doing the work, say of loading and unloading of goods, and that of a partner or a carpenter will be affected dissimilarity by the loss of the fingers of the right hand. Illustrations on these lines can be multiplied. The Legislature, therefore, cannot be presumed to have laid down the same percentage of loss of earning capacity in both the cases. Such an interpretation would not only be contrary to the object of the Act, but would also result in absurdity and patent discrimination. The proper way to construe the relevant provisions is, therefore, to hold that the percentage of the loss of earning capacity mentioned in Schedule I is the minimum that has to be presumed in every case. Once an injury described there is proved, it will be presumed that the workman has suffered a loss of earning capacity at least to the extent mentioned against it, whether in a particular case he suffers such loss or not. But where a workman claims that he has suffered more loss in his earning capacity than the one indicated in the Schedule, it should be open for him to prove it. The rule of evidence laid down by the Legislature is restricted to specifying the minimum loss of earning capacity and does not go beyond it. That this interpretation is proper is evident from the fact that the amount of compensation specified in Schedule IV of the Act is not based on injury alone. It has been graded on the basis of the monthly wages of the injured workman. Further, the language of Section 4 itself does not indicate that the loss of earning capacity stated in the Schedule against the injuries is peremptory. The language of Section 4(1)(c) in particular is noteworthy in this respect. It does not say that the compensation should be paid according to the loss of earning capacity 'specified against' the injury. It on the other hand says that the compensation should be paid according to the loss of earning capacity 'caused' by the injury suggesting thereby that the loss of earning capacity is to be determined in each case.

16. This view is in accord with the decision of the Mysore High Court in Canara Public Conveyance Co. Ltd. v. Usman Khan 1966 (1) L.L.J. 826. It has been observed there in terms that there is nothing either in Section 2(1)(g) or Section 2(1)(c) or in Schedule I which can preclude a workman from claiming higher compensation. Clause (c) of Sub-section (1) of Section 4 emphasises the consequence which the injury produces and not the injury itself, for it is implicit in the said provision that even if in a particular case there is no disablement the law presumes a particular disablement Conversely it will also have to be held that in a given case a workman will be able to prove that there is more disablement suffered by him than the one described or specified in the Schedule.

17. In the Supreme Court case Pratap Narain Singh Deo v. Srinivas Sabata 1976 A.C.J. 141, relied upon by Mr. Solkar there is not much of a discussion on the present question. The facts in that case however show that the workman had suffered an injury which resulted in the amputation of his left arm. The workman was a carpenter by profession, and therefore, the Commissioner had held that by the loss of his left hand, he had evidently been rendered unfit for the work of carpentry as the work of carpentry could not be done by one hand only. He had, therefore, adjudged that the workman had lost 100 per cent of his earning capacity and awarded compensation accordingly. The question which was raised before the Supreme Court was whether the workman could be said to have been incapacitated for all work and not for the work for carpentry alone. According to the view taken by the Supreme Court the expression total disablement defined in Section 2(1)(1) of the Act means disablement which incapacitates the workman for all work which he was capable of performing at the time of the accident. Since the Commissioner in that case had recorded his finding that the workman had been rendered unfit for the work of carpentry and granted compensation on the basis of 100 per cent loss of the earning capacity, the decision of the Commissioner was upheld.

18. The learned Commissioner has also referred to the decision of a single Judge of this Court in Ahmed Abdul v. H.K. Sehgal : (1966)IILLJ31Bom where it has been observed that the certificate of a medical expert can only say what the injury is and the extent of his physical capacity, and it is for the Court to find out on the evidence whether the workman had total or partial disablement and if partial the extent of such partial disablement.

19. I am, therefore, of the view that the percentage of the loss of earning capacity stated against the injuries in part II of Schedule I of the Act is only the minimum to be presumed in each case and the applicant is entitled to prove that the loss of earning capacity was more than the minimum so prescribed. The Commissioner is, therefore, empowered to come to his own conclusion with regard to the loss of earning capacity in each case on the basis of the evidence led before him. Hence the contention that the percentage loss of earning capacity mentioned against the injuries in the Schedule is the maximum that the Commissioner can presume in every case and that he has no power to assess the loss over and above it, is not correct.

20. This was the only point urged in the appeal. In the result, the appeal fails and is dismissed with costs.


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