(2012) 256 KLR 773

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN 

TUESDAY, THE 12TH DAY OF JUNE 2012/22ND JYAISHTA 1934 

M.F.A.(W.C.Act) No.56 of 2008 (F) 

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[AGAINST THE JUDGMENT IN W.C.C.No.41/2000 DATED 15.09.2007 OF THE COURT OF THE COMMISSIONER FOR WORKMEN'S COMPENSATION (DEPUTY LABOUR COMMISSIONER), KOTTAYAM. 

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APPELLANT/OPPOSITE PARTY:- 

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THE MANAGER, LETCHMI ESTATE, M/S.TATA TEA LIMITED, MUNNAR (NOW OWNED BY KANNAN DEVEN HILLS PLANTATIONS COMPANY LIMITED, KDHP HOUSE, MUNNAR - 685 612) 

BY ADVS.SRI.E.K.NANDAKUMAR (SENIOR ADVOCATE) SRI.A.K.JAYASANKAR NAMBIAR (SENIOR ADVOCATE) SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.ANIL D. NAIR. 

RESPONDENTS/APPLICANTS:- 

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1. M.MURUGAN 12159, MIDDLE DIVISION, LETCHMI ESTATE, MUNNAR. (DECEASED). 

2. P.SIVAKAMY, W/O.MURUGAN. 

3. P.SANTHY, D/O.MURUGAN. 

4. P.SARAVANAN, S/O.MURUGAN. 

R2 BY ADV. SRI.P.RAMAKRISHNAN. 

THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN FINALLY HEARD ON 12-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- 

"C.R." 

Thottathil B.Radhakrishnan & K.Vinod Chandran, JJ. 

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M.F.A.(W.C.Act) No.56 of 2008-F 

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Dated this, the 12th day of June, 2012 

Head Note:-

Employees Compensation Act, 1923 - Section 3 - Liability to pay compensation is statutory - It runs from the sufferance of the incident that generates the right in the employee or workman to compensation - the Commissioner was justified in granting interest from the date of the incident. 

J U D G M E N T 

Thottathil B.Radhakrishnan,J: 

This appeal is by the employer. Under challenge is an order of the Workmen's Compensation Commissioner. 

2. The workman, Murugan, sustained injury to his left index finger while operating a vibrating machine. The Chief Medical Officer of the employer assessed the disability at 3%. The Medical Board of the Idukki District issued Exhibit A1 certificate, assessing the permanent physical disability due to the injury at 10%. The workman gave evidence as A.W.1. His testimony was corroborated by A.W.2. There is no contra evidence by the management. The monthly earnings of the workman was proved. The Commissioner took it as Rs.1,700/- per month.

3. The first aspect of the argument advanced by the learned counsel for the appellant is that the Commissioner acted contrary to law in adopting 10% as the loss of earning capacity. It is pithily pointed out that the determination of 10% as the permanent physical disability by the Medical Board cannot, by itself, suffice to say that the workman suffered 10% loss of earning capacity. The learned counsel also argued that the doctor of the Medical Board, who issued Exhibit A1 Certificate, had not tendered oral evidence. 

4. It is not necessary to examine the doctor to corroborate the Medical Board's certificate, more particularly when there is no challenge to its contents by any contra evidence by the employer. We see that the loss of earning capacity has not been mentioned in the Medical Certificate. The Chief Medical Officer of the employer had also assessed only the percentage of physical disability. The variation between CMO's certificate and the Medical Board's certificate is 3% to 10%. Loss of the left index finger or injury to it, was taken, along with Exhibit A1 certificate, to hold that the workman suffered 10% loss of earning capacity. On the totality of the facts and circumstances, we do not find any perversity in the appreciation of evidence by the Commissioner. So much so, we do not find any substantial question of law arising for decision in favour of the employer regarding that aspect. 

5. The Commissioner ordered that interest would run from the date of accident, that is, 10.05.2000. Relying on the decision of the apex Court in National Insurance Co. Ltd. v. Mubasir Ahmed [2007 (3) KLT 26 (SC)], the learned counsel for the appellant argued that the starting point of the liability to pay interest is only from the date of the order of the Commissioner. We may note that this issue had obtained focused attention of the Division Bench of this Court. Analysing the various precedents, including the one referred to above, and the different aspects of the matter, it was held in M.F.A.No.59 of 2011 that the precedent law as available from the law laid down by the Apex Court categorically shows that the liability to pay interest runs from the date of accident. 

6. On a complete evaluation of the Workmen's Compensation Act, since re-christened as "Employees Compensation Act, 1923", we see that the liability to pay compensation is statutory. Section 3 onwards in Chapter II of that Act would show that the liability that arises is fixed statutorily. It runs from the sufferance of the incident that generates the right in the employee or workman to compensation. Hence, the employer has a statutory liability to deposit amounts which he admits as compensation. Similarly, even if there is any settlement of claims to the extent permitted under that Act, such agreements can work only with the seal of approval of the Commissioner. The liability to pay interest would start to run from the non-performance and non-discharge of the obligation to pay the compensation. That liability being a statutory one under Section 3, it would run from the date of the incident. May be, in exceptionally exceptional cases where there is grave and enormous delay in making a demand for compensation, the Courts may take a different view; of course, without ignoring the fact that the legislation is meant to provide support to a socially and economically challenged and marginalized sector of the society. With this, we follow the judgment in M.F.A.No.59 of 2011 and hold that the Commissioner was justified in granting interest from the date of the incident. 

7. In the above circumstances, we do not find any substantial questions of law arising for decision in favour of the appellant. The appeal fails. In the result, the appeal is dismissed. No costs. 

Sd/- Thottathil B.Radhakrishnan Judge 

Sd/- K.Vinod Chandran Judge.

vku/120612.  - true copy - 

(2012) 249 KLR 977

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR 

FRIDAY, THE 6TH DAY OF JANUARY 2012/16TH POUSHA 1933 

MFA.No. 240 of 2010 ( ) 

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WCC.211/2004 of W.C.C.,KOZHIKODE 

APPELLANT(S)/2ND OPPOSITE PARTY IN WCC NO.211/04: 

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M/S.THE NATIONAL INSURANCE COMPANY LTD., PARCO TOWERS, P.M.TAJ ROAD, KOZHIKODE REPRESENTED BY ITS MANAGER, REGIONAL OFFICE M.G.ROAD, ERNAKULAM. 

BY ADV. SRI.LAL GEORGE 

RESPONDENT(S)/APPLICANTS AND IST OPPOSITE PARTY IN WCC: 

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1. PADMAVATHY, W/O.THEYYAN, VADAKKE MARAKKAD HOUSE, KADALUNDI AMSOM PAZHANCHANNUR DESOM, P.O.CHALIYAM KOZHIKODE-673 301. 2. VIJAYA CHANDRAN.O., OTTUKALATHIL HOUSE, PUTHUKULANGARA, KADALUNDI KOZHIKODE-673 302. 

BY ADV. SRI.R.JACOB ABRAHAM 

THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 06-01-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 

THOTTATHIL B. RADHAKRISHNAN & C.T.RAVIKUMAR, JJ. 

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M.F.A.(WCC)No.240 of 2010 & I.A.No.2949 of 2011 

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Dated this the 6th January, 2012 

"C.R" 

Head Note:-

Workmen's Compensation Act, 1923 - Section 3(1) - the deceased driver took the vehicle to a river side for wash to clean the vehicle and victim died drowning during the course of his activities - Even if it is a case where he had gone for a dip in the river, after washing the vehicle, such situation cannot be excluded from the continuity of the chain of events in connection with the employment.  

Workmen's Compensation Act, 1923 - Section 30 - The appeal under the Workmen's Compensation Act would lie only on a substantial question of law. Otherwise, the procedure for considering such appeals, which are predominantly civil in nature, will have to be in tune with the civil appellate jurisdiction of the High Court. This means that, admission of additional evidence in such an appeal would be governed by the well settled principles relating to Order XLI Rule 27 of the Code of Civil Procedure.

JUDGMENT 

Thottathil B.Radhakrishnan, J. 

This appeal against an award under the Workmen's Compensation Act is by the insurer. Valid insurance cover is not in dispute. 

2. The only plea of the appealing insurer is that the death of the victim was not on account of any activity which can be called as one that arose in the course of employment. No elaboration is required to state that this is essentially a question of fact, unless, of course, it is established that an error of law has been committed in the appreciation of evidence. Also, when Evidence Act does not apply, principles of fairness and fair play, reasonableness, exclusion of perversity in adjudication, availability of evidence, etc. would govern the issue as to whether this Court would interfere, holding that a substantial question of law arises for decision in such an appeal. 

3. The first claimant, the mother of the deceased deposed as AW1. AW2 spoke as an independent witness regarding the incident.

4. The insurer did not adduce any evidence, either oral or documentary. However, it had argued that the evidence on record does not show that the incident was in connection with the employment and that it can be seen that the situation was otherwise. 

5. The owner of the Jeep did not dispute the fact that the deceased was the driver of the Jeep. In fact, the insurer also did not dispute that aspect. 

6. The oral evidence of the witnesses who deposed were considered by the Commissioner in the context of the documentary evidence. The impugned award was passed, essentially, on appreciation of the evidence on record. 

7. The case found, on evidence, by the Commissioner, is that after the day's work, the vehicle not having a cleaner, the deceased driver took it to a river side for wash and that it was a matter in the course of the duties of the driver, to clean the vehicle and maintain it appropriately. On such view, the Commissioner found, on facts, that the victim had cleaned the vehicle taking water from the river. Appreciating the evidence of AW2, the occurrence witness, the Commissioner held, on facts, that it is a case where the victim died drowning during the course of his activities, which had reasonable nexus to the continuity of his duties as a driver of the vehicle in question. Even if it is a case where he had gone for a dip in the river, after washing the vehicle, we are of the view that such situation cannot be excluded from the continuity of the chain of events in connection with the employment. If an employee, in the course of his employment, gets dirty, he has necessarily to wash his body and clothes. This is basic. Shall we quote labour rights or human rights? Judicial conscience, to our mind, is crystal clear, in this regard, that going by the well settled principles relating to labour management, provisions for such facilities are contemplated in favour of the labour force. 

8. In the aforesaid view of the matter, we do not find that the evidence, or the facts, have been appreciated so capriciously or perversely that it has to be visited by holding that the appreciation of evidence is contrary to well settled principles of law. We do not find any substantial question of law arising for decision on the basis of the appreciation of the evidence by the Commissioner. Therefore, the appeal has to, essentially, fail. 

9. Along with I.A.No.2949 of 2011, the appellant-insurer has produced certain documents. They are part of the police papers, including statements recorded by the police under section 162 Cr.P.C. Reference is made to one of those statements and the documents which are sought to be admitted as additional evidence. 

10. The appeal under the Workmen's Compensation Act is provided to the High Court. This means that it is an appeal to an established court, prescribing only a limitation as to conditions for entertaining it; that is to say, that such an appeal would lie only on a substantial question of law. Otherwise, the procedure for considering such appeals, which are predominantly civil in nature, will have to be in tune with the civil appellate jurisdiction of the High Court. For support, see New India Assurance Co. Ltd. v. Pathumma (1986 KLT 553) and the Privy Council judgments referred to therein; Secretary of State for India v. Chellikani Rama Rao and others (AIR 1916 PC 21) and R.M.A.R.A. Adaikappa Chettiar and another v. R.Chandrasekhara Thevar (AIR (35) 1948 PC 12). This means that, admission of additional evidence in such an appeal would be governed by the well settled principles relating to Order XLI Rule 27 of the Code of Civil Procedure.

11. We do not see any ground for admission of additional evidence in terms of the aforesaid provision. We see no reason why the insurer could not have adduced any evidence at all before the Commissioner. Nor is there any material to hold that the appellant/insurer was prevented, by any justifiable cause, from producing the materials that are now sought to be brought on record. Not only that, the material sought to be admitted cannot be looked into for the purpose of this appeal, as is sought for, in view of section 162 Cr.P.C. It cannot be relied on for any such purpose. The application for production of additional evidence, therefore, fails. 

For the aforesaid reasons, the appeal and interlocutory application are dismissed with costs. 

Sd/- THOTTATHIL B. RADHAKRISHNAN Judge Sd/- C.T.RAVIKUMAR Judge TKS/6.1.12 

(2012) 236 KLR 709

 IN THE HIGH COURT OF KERALA AT ERNAKULAM 

PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR 

MONDAY, THE 13TH DAY OF FEBRUARY 2012/24TH MAGHA 1933 

MFA.(WCC)No. 154 of 2011 

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[AGAINST THE ORDER OF THE COMMISSIONER FOR WORKMEN'S COMPENSATION (DEPUTY LABOUR COMMISSIONER), KOZHIKODE] 

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APPELLANT/2ND RESPONDENT: 

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UNITED INDIA INSURANCE COMPANY LTD., BRANCH OFFICE,VELIMANA BUILDING,THAMARASSERY, KOZHIKODE, NOW REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE,KOCHI-11. 

BY ADV. SRI.P.JAYASANKAR. RESPONDENTS/APPLICANT AND 

RESPONDENT NO.1: 

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1. ABDUL RAZAK, S/O.ABOOBACKER, CHOLAKKUMMUMMEL HOUSE, KODUVALLY. P.O, KOZHIKODE - 673 001. 

2. C.P.MARAKKAR, S/O. MOIDI,CHUNDIPONATHIL HOUSE, KOZHAKKOTH. P.O, KODUVALLY, KOZHIKODE - 673 001. 

BY ADVS. SRI.K.M.FIROZ, SMT.M.SHAJNA, 

THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 13-01-2012, THE COURT ON 13/02/2012 DELIVERED THE FOLLOWING: Prv. 

Thottathil B.Radhakrishnan & C.T.Ravikumar, JJ. 

= = = = = = = = = = = = = = = = = = = = = = = = 

MFA(WCC).No.154 of 2011 

= = = = = = = = = = = = = = = = = = = = = = = = 

Dated this the 13th day of February, 2012 

Head Note:-

Workmen's Compensation Act, 1923 - Sections 4(1)(a), (b) and (c) - the claimant in this case is not permanently totally disabled. It is a case of permanent "partial" disability. The determination of compensation due to the applicant would not, therefore, fall within Section 4(1)(b). It falls, squarely under section 4(1)(c), which governs cases where permanent partial disablement results from the injury. The limit of Rs.4,000/- fixed in Explanation-II to Section 4(1)(a) & (b) is not applicable to cases which fall under Section 4(1)(c). The appealing insurer's plea that the Commissioner ought to have pegged the monthly income of the workman at Rs.4,000/- applying Explanation-II occurring after clauses (a) and (b) of Section 4(1) of the Act, therefore, fails.  

Workmen's Compensation Act, 1923 - Classification of Physical Disability -  Excluding death, disability, in the physical sense, could be permanent total disability, permanent partial disability, temporary total disability or temporary partial disability. These are the types on which the physical disability can be classified in terms of the status of the body. 

Workmen's Compensation Act, 1923 - Method of determination of loss of earning power or earning capacity - When it comes to the loss of earning capacity, it has to be determined with reference to the occupation of the person concerned. Though the statute uses the phrase "loss of earning capacity" quite often, medical practitioners and medical boards use different other terms to express what they would have, in fact, determined as loss of earning capacity. They are men of medicine; not of law. One way of expressing the loss of earning capacity is to state the percentage of what is called "occupational disability". Such assessment is nothing but the determination of the loss of earning capacity qua the occupation of the injured at the time of accident.   

Workmen's Compensation Act, 1923 - Workman belongs to the marginalized sector of the society. He is a driver of a lorry. He was seriously injured in the accident that arose out of the course of his employment. It was an instance of assault using weapons. The legislation under which he has been granted compensation is a piece of social security legislation. The workman having been found to be entitled to compensation, as statutorily fixed, that cannot be denied merely on account of miscalculation or wrong calculation of the compensation amount by him.

Judgment 

"CR" 

Thottathil B.Radhakrishnan, J. 

1.This appeal by an insurer is against an award passed under the Workmen's Compensation Act, 1923 (since re-christened "the Employees' Compensation Act, 1923"). No such appeal shall lie unless a substantial question of law is involved in it, in view of the first proviso to Section 30(1) of that Act. 

2.Before the Commissioner, the insurer denied liability to indemnify the insured on the plea that the incident did not arise in the course of employment. It also disputed the lump sum payment claimed by the applicant and his plea as to the monthly wages. 

3.Appreciating the evidence, the Commissioner held that the applicant was driving the lorry of his employer and when it reached near a check post, a group of men manhandled him. FIR, accident-cum- would certificate, reference card to the Medical College Hospital, body mahazar, certificate issued by the Sub Inspector of Police etc. were taken on record. The accident was, thus, found as one that falls within the ambit of the provisions of the Act. 

4.Supporting the appeal, it is argued, firstly, that the monthly wages ought to have been pegged at Rs.4,000/-, having regard to the provision in Explanation II to Section 4(1)(a) and (b) and the impugned award, treating the monthly wages as Rs.6,000/- is unsustainable in law. Secondly, it is argued that the percentage of loss of earning capacity has not been assessed by a qualified medical practitioner in terms of the decision of the Full Bench of this Court in New India Assurance Co. Ltd. v. Sreedharan[1995(1) KLT 275]. The further plea is that the Commissioner awarded amounts in excess of that claimed. 5.We first proceed to consider the primary plea of the insurer that the monthly income of the workman ought to have been pegged at Rs.4,000/- and the argument on its behalf with reference to Explanation-II occurring after clauses (a) and (b) of sub-section (1) of Section 4. A survey of the Act shows that the legislature visualised five contingencies, to start with. They are (1) death; (2) permanent total disablement; (3) permanent partial disablement; (4) temporary total disablement; and, (5) temporary partial disablement. We also see the legislation categorising the injuries as those included in the Schedules, also with deeming provisions. Section 4(1)(a) deals with cases where death results from the injury. Fortunately, this is not such a case. Section 4(1)(b) deals with cases where permanent total disablement results from the injury. To his fortune, the claimant in this case is not permanently totally disabled. It is a case of permanent "partial" disability. The determination of compensation due to the applicant would not, therefore, fall within Section 4(1)(b). It falls, squarely under section 4(1)(c), which governs cases where permanent partial disablement results from the injury. The limit of Rs.4,000/- fixed in Explanation-II to Section 4(1)(a) & (b) is not applicable to cases which fall under Section 4(1)(c). The appealing insurer's plea that the Commissioner ought to have pegged the monthly income of the workman at Rs.4,000/- applying Explanation-II occurring after clauses (a) and (b) of Section 4(1) of the Act, therefore, fails. 

6.As regards the appealing insurer's second plea based on New India Assurance Co.Ltd.(supra), the fact that the medical certificate has been issued by a qualified medical practitioner is not disputed. As noted supra, excluding death, disability, in the physical sense, could be permanent total disability, permanent partial disability, temporary total disability or temporary partial disability. These are the types on which the physical disability can be classified in terms of the status of the body. When it comes to the loss of earning capacity, it has to be determined with reference to the occupation of the person concerned. This is the method of determination of loss of earning power or earning capacity. Though the statute uses the phrase "loss of earning capacity" quite often, medical practitioners and medical boards use different other terms to express what they would have, in fact, determined as loss of earning capacity. They are men of medicine; not of law. One way of expressing the loss of earning capacity is to state the percentage of what is called "occupational disability". Such assessment is nothing but the determination of the loss of earning capacity qua the occupation of the injured at the time of accident. In the case in hand, this is determined at 30%, as per Ext.A7 disability certificate given by the Assistant Professor of Orthopaedics in the Medical College Hospital, Calicut. What has been so determined is nothing but the loss of earning capacity. We are, therefore, satisfied that the loss of earning capacity of 30% as was determined by the authorized medical practitioner and applied by the Commissioner to determine the compensation is the measure of the loss of earning capacity of the injured in hand. The argument of the insurer to the contrary does not stand in law. 

7.Another plea of the appellant/insurer is that while the applicant claimed lump sum payment of Rs.1,50,000/-, the Commissioner applied the multiplier and concluded that he is entitled to Rs.2,17,793/- as compensation with simple interest from the date of accident. The insurer points out that the Commissioner has made an award in excess of the amount claimed. The workman belongs to the marginalized sector of the society. He is a driver of a lorry. He was seriously injured in the accident that arose out of the course of his employment. It was an instance of assault using weapons. The legislation under which he has been granted compensation is a piece of social security legislation. As laid down by the Division Bench of this Court in Radhamony v. Secretary, Dept. of Home Affairs[1995 - 1 LLN 370], the workman having been found to be entitled to compensation, as statutorily fixed, that cannot be denied merely on account of miscalculation or wrong calculation of the compensation amount by him. That settled proposition of law stands to advise against interference by this Court, on a ground that the impugned award gives rise to a substantial question of law to be answered in favour of the insurer, on that count. 

8.No substantial question of law has been made out as arising for decision and to be answered in favour of the appellant. Appeal fails. In the result, this appeal is dismissed. No costs. 

Sd/- Thottathil B.Radhakrishnan, Judge. Sd/- C.T.Ravikumar, Judge. Sha/090212 -true copy- P.S.to Judge.