Case: B. LAKSHMANA ETC Vs. DIVISIONAL MANAGER, NEW INDIA ASSURANCE COMPANY LIMITED ETC

Kurian Joseph, J. 1. Appellants are claimants before the Workmens Compensation Commissioner, Sub Division-I, Bellary, Karnataka State. They were working as driver, cleaner and loaders 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 Workmens Compensation Commissioner u/s 10 of the Workmens Compensation Act, 1923 (hereinafter referred to as the Act). 2. Second Respondent herein admitted that the vehicle belonged to him and he also admitted the accident. The first Respondent herein-the insurer, admitted that the vehicle was duly insured. 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 certificate, was examined as PW7. 3. Exhibits P1 to P17 were marked. Exhibit P1 is the First Information Report on the accident. Exhibit P2 is the Charge-sheet and Exhibit P3 is the Registration Certificate. Exhibits P5 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 PW7. 4. Though 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 Workmens Compensation Commissioner. 5. Based on the evidence on record, by order dated 19.07.2007, the Workmens Compensation Commissioner awarded compensation as follows: As per the calculation of compensation amount the ages of the Petitioners and obtaining their respective salaries already decided factor. As per workmen compensation Act the Petitioners ages and obtaining net salaries at the rate of 60% as calculated and they sustained loss and both are calculated and the compensation award amount has been fixed as follows: 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 per workmen compensation Act, 1923 as per Section 4(A)(3)(A) and the compensation award amount shall be tender to the Petitioners with one month from the date of judgment and deposited the same before this Court at the rate of 12% interest to the said award amount. 6. Aggrieved, 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 Workmens Compensation Commissioner and dismissed the applications for compensation mainly holding that the claim was not properly proved before the Workmens 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 to show that claimants have not only withheld the valuable evidence if any available with them for being tendered namely X-ray reports and as such an adverse inference has to be drawn against claimants for withholding best evidence available with them from being produced and being scrutinized by the Workmens Compensation Commissioner at the time of adjudication their claim petitions. 7. We 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 Workmens Compensation Commissioner, to produce the x-rays before the Workmens Compensation Commissioner. Even otherwise, the Commissioner is not an officer 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 physically examined the Appellants after taking x-ray. In such circumstances, it is not required to have the x-rays before the Commissioner. 8. u/s 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 PW7 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. 9. All that apart, the order dated 04.07.2007 of the Workmens 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. 10. u/s 30 of the Act: ...no appeal shall lie against any order unless a substantial question of law is involved in the appeal.... 11. In the instant case, the Workmens 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 substantial question of law. 12. Under the scheme of the Act, the Workmens 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 u/s 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 u/s 30 of the Act, in the absence of any material irregularity or perversity. 13. As far as the rate of interest is concerned, the Commissioner only awarded 12% which is the statutory interest u/s 4A of the Act.

Decision:
1[ds]7. We 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 Workmens Compensation Commissioner, to produce the x-rays before the Workmens Compensation Commissioner. Even otherwise, the Commissioner is not an officer 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 physically examined the Appellants after taking x-ray. In such circumstances, it is not required to have the x-rays before the Commissioner.8. u/s 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 PW7 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.9. All that apart, the order dated 04.07.2007 of the Workmens 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.11. In the instant case, the Workmens 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 substantial question of law.12. Under the scheme of the Act, the Workmens 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 u/s 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 u/s 30 of the Act, in the absence of any material irregularity or perversity.13. As far as the rate of interest is concerned, the Commissioner only awarded 12% which is the statutory interest u/s 4A of the Act.