B. Lakshmana Etc. v. Divisional Manager, New India Assurance Company Limited Etc.

Judgment

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 11381-11386 of 2013. From the Judgment and Order dated 02.02.2011 of by the High Court of Karnataka Circuit Bench at Dharwad in M.F.A. No. 12360/2007 c/w MFA Nos. 12361/07, 12362/07. 12363/ 07, 12365/07 (WC). Kiran Suri, Nakibur Rahman Barbhuiya, Ritika Gambhir for the Appellants. J P. N. Shahi, Nee raj Shekhar for the Respondents. The Judgment of the Court was delivered by KURIAN, J.

1Appellants are claimants before the Workmen's Compensation Commissioner, Sub Division-I, Bellary, Karnataka State. They were working as driver, cleaner and load~rs in a lorry bearing registration no. MH-12/AQ-4458. On 13.08.2008, the lorry met with an accident when it fell down in a ditch and all the appellants suffered various injuries. They filed separate petitions before the Workmen's Compensation Commissioner under Section 1 O of the Workmen's • G Compensation Act, 1923 (hereinafter referred to as 'the Act').

2Second respondent herein admitted that the vehicle belonged to him and he also admitted the accident. The first A respondent herein-the insurer, admitted that the vehicle was duly !~sured. The owner did not contest the petition. However, the insurer, on permission, contested the petition. The claimants gave evidence as Pws 1 to 6 and the qualified medical practitioner-an orthopedic surgeon, who issued the disability B certificate, was examined as PW?. 3: Exhibits P1 to P17 were marked. Exhibit P1 is1he First Information Report on the accident. Exhibit P2 is the Charge- . sheet and Exhibit P3 is the Registration Certificate. Exhibits c PS to P16 are the Wound Certificates and the Disability Certificates, respectively of the appellants and P17 is the Insurance Policy. The Wound Certificates and Disability Certificates were duly proved by PW?.

4Though the insurer filed an application for calling for the medical records from the primary health centre where the appellants were initially treated, the same was dismissed since disability certificate issued by the registered medical practitioner had already been admitted in evidence. Application for reassessment of disability by a panel of doctors was also_ dismissed on the same ground as per common order dated 04.07.2007 of the Workmen's Compensation Commissioner.

5Based on the evidence on record, by order dated 19.07.2007, the Workmen's Compensation Commissioner awarded compensation as follows: "As per the calculation of compensationamount the ages qf the petitioners and obtainingtheir respective salaries already decided factor. As per workmen compensation Act the petitionersages and obtaining net salarie~ at the rate of 60%as calculated and they sustained loss and both arecalculated and the compensation award amounthas been fixed as follows: INDIA ASSURANCE [KURIAN, J.] Name of Salary Age Relevant Loss of Entitle tlie per factor Resmuneget petitioners month ration comp- Rs. as per -ensatior award amount Lakshmana 4000 31 205.95 25 1,23,57( Driver Boya 30 207.98 30 1,31,02" Ramanna Honurappa 2600 29 209.92 30 98,242 Loader Ramanna 27 213.57 30 99,950 Loader Sunkhappa 2600 28 211.79 25 82,598 Loader Mariyanna 29 209.92 25 81,868 Loader The fact of the accident intimated before respondent, the fact before the court was held with discussion and this court fixed the compensation amount to the petitioners as perworkmen compensation Act, 1923 as per section4(A)(3)(A) and the compensation award amount shall be ter:ider to the petitioners with one monthfrom the date of judgment and deposited thesame before this court at the rate of 12% interest to the said award amount."

6Aggrieved, the insurance company filed appeals before the High Court The appeals have been disposed of by the impugned judgment dated 02.02.2011. The High Court set aside the order passed by the Workmen's Compensation Commissioner and dismissed the applications for compensation mainly holding that the claim was not properly proved before the Workmen's Compensation Commissioner. The High Court was of the view that x-rays of the appellants, based on which PW7 assessed the disability, should have been produced. To quote from paragraph- 18 of the impugned judgment: "Evidence on record would also clearly go toshow that claimants have not only withheld thevaluable evidence if any available with them forbeing tendered namely X-ray reports and as such an adverse inference has to be drawn 8 againstclaimants for withholding best evidence availablewith them from being produced and being scrutinized by the Workmen's Compensation Commissioner at the time of adjudication their claim petitions."

7We are afraid that the stand taken by the High Court cannot be appreciated. All the records were seen by PW7-registered medical practitioner, who is an orthopedic surgeon, before issuing the disability certificate. He has also seen would certificate issued by the primary health centre. Only after examining the appellants with reference to the wound certificate and the x-rays taken by him, PW7-orthopedic surgeon issued the disability certificate. In such circumstances, it is not necessary for the appellants, who are applicants before the Workmen's Compensation Commissioner, to produce the x-rays before the Workmen's Compensation Commissioner. Even otherwise, the Commissioner is not an office"r qualified and competent to assess the disability with reference to the medical records, particularly the x-rays. That is the field of medical experts, the medical practitioner. PW-7-registered medical practitioner has duly assessed the disability with reference to the relevant records and on examining the appellants. There is no case that he has not seen the records or that he has manipulated the records of treatment or he has misread the same. He has also physic<-'ly examined the appellants after taking x-ray. In such circumstances, it is not required to have the x-rny'> before the Commissioner.

8Under Section 4 of the Act, it is sufficient if the loss of earning capacity is assessed by a qualified and registered medical practitioner. The insurer does not have a case that PW? is not a qualified medical practitioner. He is a registered medical practitioner and he is an orthopedic surgeon. There is no dispute with regard to his competence to issue the disability certificate.

9All that apart, the order dated 04.07.2007 of the Workmen's INDIA ASSURANCE [KURIAN, J.] Compensation Commissioner rejecting the prayer made by the insurer for calling for records and for referring the appellants to the panel of doctors, was not challenged by the insurer, and, thus, it has become final.

10Under Section 30 of the Act: " ... no appeal shall lie against any order unless asubstantial question of law is involved in the appeal. .. "

11In the instant case, the Workmen's Compensation Commissioner has already returned a finding of fact with regard to the accident, the injury suffered by the appellants and the extent of loss of earning capacity of the appellants as a result of the accident. The said finding is based on the evidence duly proved before the Commissioner. There is no material irregularity or perversity in the appraisal of evidence. There is no case that the evidence was inadmissible. In such circumstances, the appellate court should not have entertained the appeal as there is no 0 subs.tantial question of law.

12Under the scheme of the Act, the Workmen's Compensation Commissioner is the final authority on questions of fact and the first appellate court is the final authority on the question -·of law. In the instant case, there is no question of law much less a substantial question of law arising for consideration under Section 30 of the Act for the High Court. The High Court has simply ventured to re-appreciate the evidence and record a difference finding, which is not within its jurisdiction under Section 30 of the Act, in the absence of any material irregularity or perversity.

13As far as the rate of interest is concerned, the Commissioner only awarded 12% which is the statutory interest under Section 4A of the Act.

14For the reasons stated above, the appeals are allowed, the common impugned judgment of the High Court is set aside and the orders dated 04.07.2007 of the Workmen's Compensation Commissioner are restored.

15There is no order as to costs. Rajendra Prasad Appeals allowed.