B.LAKSHMANA ETC. Vs DIVISIONAL MANAGER NEW INDIA ASSR.CO.LD.
Bench: GYAN SUDHA MISRA,KURIAN JOSEPH
Case number: C.A. No.-011381-011386 / 2013
Diary number: 35957 / 2011
Advocates: Vs
NEERAJ SHEKHAR
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 11381-11386/2013 [Arising out of S.L.P. (Civil) Nos. 2587-2592 of 2012]
B. Lakshmana etc. … Appellant (s)
Versus
Divisional Manager, New India Assurance Company Limited etc. … Respondent (s)
J U D G M E N T
KURIAN, J.:
1. Appellants are claimants before the Workmen’s
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 Workmen’s Compensation
Commissioner under Section 10 of the Workmen’s
Compensation Act, 1923 (hereinafter referred to as ‘the
Act’). 1
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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
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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.
5. Based 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 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: Name of the petitioners
Salary per month Rs.
Age Relevan t factor
Loss of Remune -ration as per year
Entitle to get compen- sation award amount
Lakshmana Driver
4000 31 205.95 25 1,23,570
Boya Ramanna, Cleaner
3500 30 207.98 30 1,31,027
Honurappa Loader
2600 29 209.92 30 98,242
Ramanna Loader
2600 27 213.57 30 99,950
Sunkhappa Loader
2600 28 211.79 25 82,598
Mariyanna Loader
2600 29 209.92 25 81,868
The fact of the accident intimated before respondent, the fact before the court was held with discussion and this court fixed the
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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 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 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 Workmen’s 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
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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 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.
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8. Under 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 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
Workmen’s 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. Under Section 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 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
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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 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.
13. As far as the rate of interest is concerned, the
Commissioner only awarded 12% which is the statutory
interest under Section 4A of the Act.
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14. For 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.
15. There is no order as to costs.
………….…..…………J.
(GYAN SUDHA MISRA)
……………. ………………J.
(KURIAN JOSEPH) New Delhi; July 1, 2013.
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