NEW INDIA ASSURANCE CO LTD Vs. K ABDULLAKUTTY

JUDGEMENT

(1.) THESE appeals by the insurance companies filed under Section 30 of the Workmen's Compensation Act,1923 (for short "the Act"), raise common questions for determination. The respondents-workmen in the respective appeals filed petitions under Section 22 of the Act for compensation and the Commissioner passed awards. They are challenged. These cases fall under Section 4 (1) (c) (ii) of the Act inasmuch as the injuries sustained by the workmen did not answer the description of the injuries specified in Part I or II of Schedule I to the Act.

(2.) IN M. F. A. No. 126 of 1990, though Exhibit A-2, disability certificate, states the disability of the workman at 50 per cent, the Commissioner for Workmen's Compensation found the loss of earning capacity at 100 per cent and awarded compensation accordingly. In M. F. A. No. 985 of 1990, Exhibit A-4, disability certificate, states permanent disability of 30 per cent, the Commissioner found the loss of earning capacity at 45 per cent and awarded compensation on that basis. In M. F. A. No. 58 of 1992, Exhibit A-2, disability certificate did not mention the percentage of disability, the Commissioner found the loss of earning capacity to be 40 per cent and compensation was awarded accordingly. In M. F. A. No. 404 of 1992, Exhibit A-7, disability certificate, did not mention the percentage of disability, but the Commissioner found the loss of earning capacity at 45 per cent and awarded compensation on that basis. In M. F. A. No. 505 of 1992 also the percentage of disability was not mentioned in Exhibit P-4 disability certificate, but the Commissioner found loss of earning capacity at 40 per cent and compensation was awarded,

(3.) AS could be seen from the above, in cases where the qualified medical practitioner certified the percentage of disability the Commissioner did not accept the same; instead he fixed a higher percentage of loss of earning capacity and awarded compensation. Even in cases where the certificate did not mention the percentage of disability the Commissioner fixed the percentage of loss of earning capacity and on that basis awarded compensation. This is attacked by the appellants as without jurisdiction, as, according to them, in terms of Section 4 (1) (c) (ii) of the Act, the Commissioner has no jurisdiction to fix a percentage of disability at variance with the percentage of disability certified by qualified medical practitioner. Learned Counsel maintained, the Commissioner has no discretion in the matter. According to him, since the very section itself states that the compensation has to be assessed on the basis of the earning capacity as assessed by the qualified medical practitioner, where the qualified medical practitioner certifies the percentage of loss of earning power the Commissioner has to accept the same. It then was contended, where the medical practitioner did not certify the percentage of loss of earning capacity the Commissioner has to refer him to qualified medical practitioner to assess the same. According to learned counsel for the appellant, in the absence of assessment as to the loss of earning capacity the Commissioner cannot fix compensation in a case like the present one that falls under Section 4 (1) (c) (ii) of the Act. Yet another point raised was that the medical certificate issued by the qualmed medical practitioner cannot be admitted in evidence without examining the doctor who issued the same and so long as the doctor in not examined the certificate cannot be relied on for finding the percentage of loss of earning power.