IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD FRIDAY, THE TWENTY NINTH [29TH] DAY OF JANUARY TWO THOUSAND AND TEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.M.A.No.1469 of 2008 Between: K. Raju … Appellant And: The Modern Distilled Water & Accol Supply Co. Chennai & another … Respondents C.M.A.No.1193 of 2009 New India Assurance Company Ltd., Rep.by its Divisional Manager, Secunderabad … Appellant And: Mr. K.Raju another … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.M.A.No.1469 of 2008 & C.M.A.No.1193 of 2009 COMMON JUDGMENT: These two appeals are directed against the order dated 06.08.2004 in W.C.No.64 of 2004 on the file of the Commissioner for Workmen’s Compensation, Hyderabad, wherein the claim of the appellant in CMA No.1469 of 2008 was allowed-in-part awarding compensation of Rs.4,31,043/-, within 30 days from the date of receipt of the order, failing with 50% penalty and 12% interest as per Section 4-A of the Act. 2. CMA No.1469 of 2008 is filed by the applicant seeking enhancement of the compensation, whereas, CMA No.1193 of 2009 is filed by the Insurance Company questioning the award. As both the appeals arise out of the same award, they are heard together and are being disposed of by this common judgment. Heard both sides. Perused the record. 3. The applicant filed claim application seeking compensation of Rs.5,00,000/- on account of the injuries sustained by him in the course of employment as driver of lorry bearing No.TN 09 J 1778 in the accident that occurred on 17.04.2004. According to the applicant, on that day while he was driving the lorry and proceeding from Narsapur, the lorry over turned near Malkapur chowrastha, resulting in grievous injuries to the applicant, that he was shifted to Osmania General Hospital, Hyderabad for treatment. Hatnoora Police registered a case in Cr.No.29 of 2004. It is further pleaded that the applicant was aged 35 years and was earning Rs.4,000/- per month as wages and batta of Rs.100/- per day. The first respondent in CMA No.1469 of 2008 who is the owner of the lorry filed counter admitting the employment of the applicant as a driver in his lorry and also the wages as claimed. The 2nd respondent-insurer filed counter opposing the claim and denying their liability to pay the compensation. 4. During enquiry, the applicant was examined as AW.1 and Dr. G. Subhash Rao was examined as AW.2 and Exs.A.1 to A.12 were marked on behalf of the applicant. No oral or documentary evidence was adduced on behalf of the opposite parties. On a consideration of the evidence available on record, the learned Commissioner held that the applicant sustained injuries in the accident that occurred in the course of his employment and therefore, is entitled to claim compensation under the provisions of the Act. The Tribunal further held that the applicant is entitled for total compensation of Rs.4,31,043/-, granting 30 days time to the opposite parties to deposit the said amount with further direction that in the event of their failure to deposit, penalty at 50% and interest at 12% is payable. Not satisfied with the award passed, the applicant filed CMA No.1469 of 2008 for enhancement of the compensation and the insurer filed CMA No.1193 of 2009 questioning the award. 5. According to the applicant, he sustained fractures of both bones of left fore arm and fracture of left 5th to 7th ribs and fracture of right hand and that immediately after the accident, he was taken to MNR Hospital, Sangareddy and from there he was shifted to NIMS and again he was shifted to Osmania General Hospital, Hyderabad, where he was admitted on 18.04.2004 and discharged on 01.05.2004. He further states that the fracture injuries led to permanent disability. AW.2 Medical Officer, who examined AW.1 and issued disability certificate Ex.A.5 testified that he found fracture of ribs 5 to 8 and commuted fracture of both left form arm, commuted fracture of right olcanam and there was malunion of bones in the forearm, restriction of movement of both elbows and fore arm. He further testified that due to above deformity, the applicant cannot attend normal duties and as a driver. Based on the Kessler’s guidelines, he assessed the disability at 50%, which is partial and permanent. The learned Commissioner, however, has taken the disability at 100% while computing the loss of earning capacity on the ground that the applicant is not in a position to drive the vehicle on account of the disability. 6. Learned counsel for the insurer would contend that the applicant sustained only fracture injuries on the left fore arm and ribs and even as per the medical evidence, there was malunion of bones only in the fore arm and the same does not in any way seriously impair the capacity of the applicant to drive the vehicle. He would further contend that even as per Schedule-I of the Workmen Compensation Act, the extent of disability is to be taken as 90% even in case of amputation and the learned Commissioner erred in taking the percentage of disability at 100% for mere fracture injury. He would further contend that the testimony of AW.2 cannot be relied upon as he was not the doctor, who treated the applicant in the hospital. 7. The applicant is not examined any of the doctors, who treated him in any of the hospitals where he was admitted. But Exs.A.2 to A.4 would show that he has underwent treatment in MNR Hospitals, NIMS and Osmania General Hospital for fracture injuries sustained by him. The impact of the said injuries whether the injuries have led to any disability and so to what extent and in what manner can be assessed only after some lapse of time since the date of accident and not immediately after the accident. AW.2 examined the applicant on 23.06.2004 i.e., about two months after the accident and found that the fractures of both bones in the left fore arm are not united properly and led to disability of 50%. AW.2 further deposed that the applicant cannot attend to normal duties as a driver. He did not however, estimate the percentage of functional disability. He did not also estimate the loss of earning capacity on account of the physical disability, which, even according to him is only 50%. Thus except the oral statement of AW.2 at the time of evidence that the applicant cannot work as a driver, there is no other evidence to show that the applicant has suffered any loss of earning capacity or extent of such loss. 8. Section 4(1)(c)(ii) of the Workmen’s Compensation Act (for short ‘the Act’) states that in the case of an injury not specified in Part II of Schedule I, the compensation shall be such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity, as assessed by the qualified medical practitioner, permanently caused by the injury. Explanation II appended to the above provision states that in assessing the loss of earning capacity for the purposes of sub-clause (ii), the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in relation to different injuries specified in Schedule I. Clause (c) to sub-section (i) of Section 4 deals with the amount of compensation in respect of permanent partial disablement resulting from the injury. Sub-clause (i) of clause (c) deals with injury specified in Part II of Schedule I and sub-clause (ii) deals with the injury not specified in Schedule I. Sub-clause (i) states that in respect of the scheduled injury resulting in partial permanent disablement 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 loss of earning capacity caused by that injury, is payable. However, when it comes to sub- clause (ii) dealing with injury not specified in Schedule I, it is such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity, as assessed by the qualified medical practitioner, that becomes payable. 9.A careful reading of above two provisions would, therefore, disclose that in respect of an injury resulting in partial permanent disablement, which is not mentioned in the schedule, the loss of earning capacity is required to be assessed by a qualified medical practitioner and the compensation payable is at such percentage of the compensation payable in the case of permanent total disablement which is proportionate to the loss of earning capacity as assessed by the qualified medical practitioner. Explanation II also clarifies that while assessing the loss of earning capacity for the purpose of sub- clause (ii), the qualified medical practitioner shall have due regard to the percentage of loss of earning capacity in relation to different injuries specified in Schedule-I. Thus, keeping in view the percentages of loss of earning capacity mentioned in Schedule-I regarding different injuries specified therein, the qualified medical practitioner shall have to assess the loss of earning capacity arising out of the injury, which had led to partial permanent disablement. It is only on such assessment being made by the qualified medical practitioner, the compensation payable in respect of injury not mentioned in Schedule-I can be estimated in terms of sub-clause (ii). 10. In the present case, no such effort is made by A.W.2, the medical officer, to assess the loss of earning capacity on account of the fracture injury sustained by the appellant, which can form the basis for estimating the amount of compensation payable. 11. Section 2(1) (g) of the Act defines 'partial disablement' as follows:- “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 he 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. The above proviso makes it clear that in the case of injuries specified in Part II of Schedule I permanent partial disablement is inferred. By necessary implication, it means that no such inference of permanent partial disablement can be drawn in respect of injury not specified in Part II of Schedule I and the same has to be proved as a matter of fact. As per the definition of the expression 'partial disablement' contained in Section 2(1) (g) where the disablement is of a permanent nature, the partial disablement means such disablement as reduces his earning capacity in every employment which he was capable of undertaking at that time. The medical evidence on record shows that the disablement suffered by the appellant is permanent in nature and it is also partial. It means that it is such disablement as reduces his earning capacity in every employment which he was capable of undertaking at that time. There is absolutely no evidence on record to show that the appellant has become disabled to the extent that it reduced his earning capacity in every employment, which he was capable of undertaking at that time. In other words, the evidence of A.W.2 does not disclose that the applicant is incapable of undertaking any other work, which he was capable of undertaking at the time of accident. Even assuming that the applicant was incapable of driving, going by the evidence of A.W.2, it does not lead to any inference that the appellant was incapable of doing any other work which he was capable of undertaking at the time of accident. In other words, there is no evidence on record to show that the partial permanent disability suffered by the applicant whose percentage is stated to be 50% in terms of physical disability has led to total loss of earning capacity, in the sense that his earning capacity is lost in every employment which he was capable of undertaking at the time of accident. In the absence of any such evidence, the learned Commissioner has taken the loss of earning capacity at 100%. 12. The learned counsel for the appellant invites attention to a decision in CHAIRMAN, EMPLOYEES STATE INSURANCE CORPORATION, HYDERBAD V. SWAMINATH SINGH AND ANOTHER[1] wherein a Division Bench of this Court held that as follows: “From the above decisions and principles laid down there under, the only conclusion which can be arrived at is to the effect that be it a scheduled injury or non-scheduled injury, the extent of disability as proved or held to be proved by any medical evidence, will not be a final word in regard to the assessment of compensation for the loss of earning capacity. Each case has to be considered from its own facts and vis-à-vis the nature of employment and the duties with which one is concerned about. Therefore, having regard to the nature of injuries irrespective of the extent of disability if one is not able to perform the duties, the same as he was doing earlier or he could do, necessarily, the loss of earning capacity will have to be far more than the extent of disability.” 13. The principle laid down in the above decision is not disputed. The extent of disability as proved by the medical evidence cannot be made co-extensive with loss of earning capacity. There can be cases where the physical disability is partial, whereas the loss of earning capacity is total and vice versa. In a given case where the loss of earning capacity is shown to be far exceeding the extent of physical disability in such case, irrespective of the percentage of physical disability, the loss of earning capacity has to be estimated. In the present case, there is no such evidence on record to show that the loss of earning capacity of the appellant has, in fact, been assessed by the medical practitioner as required under Section 4(1)(c) or that on such assessment it was found that the loss of earning capacity is far more than the extent of physical disability and the applicant’s earning capacity got reduced in every employment which he was capable of undertaking on account of the disablement. 14. In ‘NATIONAL INSURANCE COMPANY LTD., V. RAJESH HELMANDGE AND ANOTHER’’[2], a learned Single Judge of this Court has held as follows:- “Further, Section 4 (1) (c) (i) (ii) and the explanation to the said provision clearly indicates that the evidence of qualified medical practitioner shall be relevant and the Commissioner shall have due regard to the percentage of compensation payable as assessed by a qualified medical practitioner. Therefore, non-examination of the doctor who issued medical certificate does not satisfy the requirement of law, because the Tribunal may not be in a position to determine whether the disablement would lead to total loss of earning capacity or whether the workman suffered permanent partial disability, enabling him to discharge normal duties with the employer or any other employer. As already observed above, a workman would be entitled to compensation irrespective of his ability to work if he suffers any scheduled injuries. However, in the case of disablement sustained by him, which falls within the definition of Section 2(1)(g), for the purpose of proper adjudication and determination, the examination of the doctor to assess the loss of earning capacity in case of non- scheduled injury is essential and an unexceptionable requirement of law. Any order of the Commissioner without applying the statutory requirement of Section 4(1) (c) (ii) and explanation (ii) would be contrary to the statute, and cannot be sustained. Therefore, I hold that in case of non-scheduled injury, to assess the loss of earning capacity, it is mandatory to examine qualified medical practitioner.” Of course, in the above case, the doctor who issued the disability certificate was not examined before the learned Commissioner and it was held that mere filing of medical certificate without expert testimony of a medical practitioner as to the assessment of loss of earning capacity in relation to the disability suffered, would not enable the Commissioner to award compensation straightaway. In the present case, though the medical practitioner was examined, his evidence as also the certificate issued by him are silent as to the assessment of the extent of loss of earning capacity on account of the injury sustained. 15. In UNITED INDIA INSURACNE COMPANY LIMITED V. SETHU MADHAVAN[3], a Full Bench of the Kerala High Court held as under:- “But when the statute specifically postulated that the compensation to be awarded should be proportionate to the loss of earning capacity, as assessed by the qualified Medical Practitioner, permanently caused by the injury, we cannot obviously overlook the legislatures intention in accepting and recognizing the expert opinion of the Medical Practitioner. It is only the medical practitioner who can, in the circumstances of the case, assess the loss of earning capacity. It would certainly depend on the facts and circumstances of each case. To hold that the Commissioner can disregard it without calling for any other data would be doing violence to the statutory provision. Of course, on the basis of the evidence tendered before the Commissioner, if he finds that the medical certificate issued by the medical practitioner cannot be accepted, he can certainly refer the applicant to the Medical Board for expert opinion and report. Without doing so, coming to a decision of his own based on the interested testimony of the applicant would not be justifiable. As it is always open to the Commissioner to send the applicant before a Medical Board, he can very well adopt that method in a case where he finds that the certificate issued by a qualified medical practitioner is found wanting or suffers from any infirmity. In view of the newly incorporated words “as assessed by the qualified medical practitioner” by virtue of Act 22 of 1984, its importance and significance cannot be overlooked. As the legislature in its wisdom chose to incorporate the aforesaid words into Section 4(1)(c) (ii), we cannot hold that it has been incorporated with no purpose. It is really with a purpose that it has been enacted. In view of the incorporation, it is not a case of ambiguity at all. In such a situation Court is not justified in stultifying the comprehensive language used by the legislature when there is no ambiguity at all. It is was further held as under: In this context, we have necessarily to consider how exactly Section 4(1)(c) (ii) stood prior to Act 22 of 1984. Prior to the incorporation, compensation for the injury not specified in Schedule I will have to be decided on the basis of the percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity caused by the injury. In the case in hand, as doctor’s certificate did not specifically mention the percentage of loss of earning capacity, there was no question of the Commissioner being bound by such evidence. But when the Parliament specifically incorporated the words ‘as assessed by the qualified medical practitioner”, its significance cannot be overlooked.” 16. In S.S.PATIL V. ERAPPA BASAPPA BHAVIHAL[4], a Full Bench of Karnataka High Court laid down the following proposition: “A reading of the aforesaid provisions makes it clear that an employer is under an obligation to pay compensation to the injured workman in accordance with the provisions of chapter II of the Act. His liability to pay compensation is not dependent on the claim to be made by the injured person. Therefore, the moment an accident takes place in his establishment and a workman is injured, if the injury which is suffered by the said workman is specified in Schedule I, the employer is bound to pay the compensation as mentioned in Schedule I read with Schedule IV. In the event the employer does not accept the liability for compensation to the accident claimed by the workman he is bound to make a provisional payment based on the extent of liability, which he accepts and such payment shall be deposited with the commissioner. In the event of his committing any default he will be liable to pay the interest and penalty for delayed payment. The problem arises in respect of an injury not specified in Schedule I because the act does not provide any guidance to the employer about the loss of earning capacity which is the basis for making payment of compensation. It is in this background, an amendment was effected to the act by Act 22/1984, which came into force from July 1, 1984. By virtue of the amendment, it is made clear in the case of an assessment made by the qualified medical practitioner regarding the disability and loss of earning capacity. It is because of the lacuna in the legislation prior to 1984 coupled with a statutory obligation imposed on the employer to pay compensation immediately after the accident to an injury person, as the act did not provide what is the amount of compensation in respect of the injury not specified in Schedule I this amendment became necessary. Therefore, the assessment by a qualified medical practitioner would aid in assessing the compensation payable to an injured. As the medical practitioner though well versed regarding the disablement arising on account of the injury sustained, is not duly qualified to assess the loss of earning capacity, an Explanation II was added by amendment making it clear that in assessing the loss of earning capacity for the purpose of sub-clause (2), the qualified medical practitioner shall have due regard to the percentage of loss of earning capacity in relation to different injuries specified in Schedule I. Therefore, the law took care to see that the medical practitioner assesses the loss of earning capacity also in addition to the assessment regarding disablement and in so assessing he shall have due regard to what is contained in schedule I of the Act. Though the commissioner could have assessed the loss of earning capacity on the basis of the medical report to be submitted by the medical practitioner, the legislature in its wisdom thought it fit that if a commissioner, could assess the loss of earning capacity on the basis of Schedule I a duly qualified doctor could also do the same. Therefore, as the employer has to pay compensation even in respect of injuries sustained which are not mentioned in Schedule I immediately after the accident the legislature thought it fit to confer on the medical practitioner the power to assess the loss of earning capacity also as that would serve the purpose of the assessment made by the qualified medical practitioner in respect of the loss of earning capacity and pays the compensation the matter ends there. Such assessment is valid and legal and payment made on the basis of such assessment is also legal and valid and the object with which the act was passed is fully achieved.” 17. In NATIONAL INSURANCE CO. LTD., V. MUBASIR AHMED AND ANR[5], the Apex Court held as under:- “Loss of earning capacity is, therefore, not a substitute for percentage of the physical disablement. It is one of the factors taken into account. In the instant case the doctor who examined the claimant also noted about the functional disablement. In other words, the doctor had taken note of the relevant factors relating to loss of earning capacity. Without indicating any reason or basis the High Court held that there was 100% loss of earning capacity. Since no basis was indicated in support of the conclusion, same cannot be maintained. Therefore, we set aside that part of the High Court’s order and restore that of the Commissioner, in view of the facts situation. 18. In RAMPRASAD BALMIKI V. ANIL KUMAR JAIN[6], the Apex court held as follows:- “Be that as it may, the High Court, in our opinion, correctly proceeded