B.D. Agarwal, J.
1. This appeal under Section 30 of the Workmen's Compensation Act, 1923 (W.C. Act in short) has been filed by the National Insurance Company Limited challenging the award dated 27.11.2003 passed by the learned Commissioner in Claim Case No. 16 of 2003. By this impugned judgment the learned Commissioner has awarded a sum of Rs. 4,43,520/- (Rupees four Lakhs forty-three thousand five hundred & twenty) only, in favour of the Claimants and this amount has been directed to be paid by the National Insurance Company Limited and another sum of Rs. 1,01,009.60/- (Rupees One Lakh one thousand nine and sixty paise) only, has been awarded against the owner. However, the owner has not preferred any appeal against the said award.
2. I have heard Ms. G. Pushpa, Advocate on behalf of Mr. N. Kotiswar, learned Counsel for the appellant, I have also heard Mr. B. Surendra, learned Counsel for the respondent No. 1 (the Claimant). The respondent No. 2 (the owner) had appeared through Mr. L. Indrakumar, advocate. However, when the appeal was heard yesterday and today, none appeared for the said respondent No. 21 have also gone through the impugned order. Also perused the record.
3. It is the case of the claimant that he was employed by the respondent No. 2 as private employee to drive his Bus bearing registration No. MN-01-0827. On 04.02.2002 the said Vehicle met with an accident while carrying passengers form Imphal to Chandel on the National High Way No. 39. As a result of the accident, the Claimant/Respondent No. 2, sustained injury of compound fracture at 3rd (upper) of left femur resulting into shortening of left lower limb. Hence, according to the respondent No. 1 the said fracture resulted into permanent disability. Accordingly, a sum of Rs. 4,40,965.80/- were claimed. However, the learned commissioner has awarded a total compensation of Rs. 5,44,529.65/-, including interest amount payable by the employer.
4. Upon hearing the learned Counsel for both the sides, the following two substantial questions of law stems out for determination by this Court:
i) Whether the learned Commissioner was justified to hold 60% disability without examination of the Medical Officer?
ii) Whether the Insurance Company limited has been rightly fastened with the liability to satisfy the award ?
iii) Whether Insurance Co. can file appeal Under Section 30 of the W.C. Act ?
5. According to the learned Counsel for the appellant, the learned Commissioner is duty bound to examine the concerned Doctor to ascertain the nature of disability and also to find out percentage of loss of earning capacity. However, this was not done by the learned Commissioner inasmuch as he has assessed the disability on the basis of a certificate issued by a Medical Officer. In this regard the learned Counsel for the appellant also relied upon the Judgment of this Court rendered in the case of New India Insurance Co. v. Sanjit Kumar and Anr. 2000 (2) GLT 567. On the ground of liability, Ms. G. Pushpa, learned Counsel for the appellant submitted that the Insurance Policy did not cover the risk of driver and cleaner inasmuch as no extra premium was paid.
6. On the other hand, Mr. B. Surrender, learned Counsel for the respondent No. 1 (claimant) submitted that the appeal is not maintainable in the eye of law. According to the learned Counsel for the respondent (claimant), the Act dos not empower any Insurance Company to file an appeal. The learned Counsel raised another technical objection relating to the maintainability of the appeal by submitting that the Insurance Company is debarred from challenging the award, since it is not contemplated under Section 147(2) of the Motor Vehicles Act, 1998. In support of this argument, the learned Counsel has cited the Judgment of Hon'ble Supreme Court of India in the case of Shankarayya and Anr. v. United Insurance Co. Ltd. reported in I (1999) ACC 497 (SC). Another Judgment from this Court rendered in the case of Oriental Insurance Co. Ltd. v. Member, Motor Accidents Claims Tribunal 2000 (I) T.A.C. 58 (Gau.) was also relied upon.
7. Learned Counsel for the respondent No. 1 also submitted that the examination of doctor is not sine qua non to assess the disability. In support of his submission, the learned Counsel has cited the Judgment of Madhya Pradesh High Court given in the case of Oriental Insurance Co. v. Babital and Ors. II (1997) ACC 231; Judgment of Karnataka High Court rendered in the case of Myosore Sugar Co. Ltd. v. B.T. Krishnamurthy, II (1997) ACC 233 and Judgment of Kerala High Court rendered in the case of New India Assurance Co. Ltd. and Anr. v. K. Abdullakutty and Ors. II (1994) ACC 233 (DB).
8. Before coming to the substantial question of law raised by the appellant I would first take up the preliminary objection raised on behalf of the respondent No. 1 regarding the maintainability of appeal. According to the learned Counsel for the respondent No. 1, only the employer can file appeal under Section 30.
9. It is true that the Workmen's Compensation Act is silent about conferring any right upon the Insurance Company to file appeal against an order of award. However, this omission in the Act cannot be interpreted in a way of as to debar Insurance companies altogether from approaching the High Court challenging the legality or correctness of the award. I say so because Insurance Companies are made liable to satisfy awards in the case of accidental deaths or injuries arising out of motor vehicles accidents, if such offending vehicles are insured under M.V. Act, I am also of the view that the Claimants cannot blow both cold and hot at the same time. They cannot be permitted to ask Insurance Companies to pay compensation on behalf of the owner but they cannot challenge awards.
10. For better appreciation of the issue, the relevant provisions of Sections 143, 147 and 149 of the M.V. Act, 1998 are reproduced below:
143. Applicability of Chapter to certain claims under Act 8 of 1923- The provisions of this Chapter shall also apply in relation to any claim for compensation in respect of death or permanent disablement of any person under the Workmen's Compensation Act, 1923 resulting from an accident of the nature referred to in Sub-section (1) of Section 140 and for this purpose, the provisions shall, with necessary modifications, be deemed to form part of that Act.
147 Requirement of polices and limits of liability (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which--
(a) is issued by a person who is an authorized insurer; and
(b) insurers the person or classes or persons specified in the policy to the extent specified in Sub-section (2)
(i) against any liability which may be incurred by him in respect of the death of or bodily (injury to any person, including owner of the goods or his authorized representative carried in the vehicle) or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;
(ii) against the death of or bodily injury to any passengers of a public service vehicle caused by or arising out of the use of the vehicle in a public place:
Provided that a policy shall not be required:
(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workman's Compensation Act, 1923 (8 of 1923), in respect of the death of, or bodily injury to, any such employee
(a) engaged in driving the vehicle, or
(b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicle, or
(c) if it is a goods carriage, being carried in the vehicle, or
(ii) to cover any contractual liability.
Explanation-xxx xxx xxx xxx
(2)xxx xxx xxx xxx
(3)xxx xxx xxx xxx
(4)xxx xxx xxx xxx
(5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports in cover in the case of that person or these classes of persons.
149 Duty of insurers to satisfy judgments and wards against persons insured in respect of third party risks.
(1) xxx xxx
(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award of long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:
(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:
(i) a condition excluding the use of the vehicle :
(a) for hire or reward, where the vehicle is on the date of the contact of insurance a vehicle not covered by a permit to ply for hire or reward, or
(b) for organized racing and speed testing, or
(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or
(d) without side car being attached where the vehicle is a motor cycle; or
(ii) a condition excluding driving by a named person or persons or by any person who is not only licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification or
(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or
(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.
11. From bare perusal of Section 147 of the M.V. Act it becomes crystal clear that the policies issued under the M.V. Act covers the liability of passengers, third party person and also employees of motor vehicles. Proviso to Section 147 has clearly excluded the liability of the insurance companies under this particular Act. However, in absence of any such stipulation in the insurance policy the claimants have the option to approach either a Tribunal constituted under M.V. Act or the Commissioner under W.C. Act. In the later case, the liability of the insurance companies is fastened under W.C. Act also on the basis of contract with the insured by virtue of issuing insurance policies.
12. In the present case, it is an admitted fact that award has not been challenged by the owner of the vehicle, although he was also made accountable to pay one part of the compensation. Curiously enough the owner has also not contested the appeal. The owner was also not represented during the hearing of the appeal, thereby indicating that he is tacitly supporting the claimant to get compensation from the Insurance Company.
13. In the case of National Insurance Co. Ltd. v. Manuhoram Imochouha Singh and Anr. (M.A.F. No. 4 of 1999), disposed of on 18.05.2005, this Court had an occasion to examine whether the learned Commissioner under Workmen's Compensation Act can assess compensation on the basis of the formula laid down Under Section 163A in the Motor Vehicles Act. While deciding the appeal Their Lordships have held that the Workmen's Compensation Act is a complete law in itself, having in built provisions in the Act itself to fix quantum of compensation and as such, the learned Commissioner cannot assess compensation invoking the provisions of Motor Vehicles Act. In this way, from this observation it can be safely inferred that the Division Bench of this Court has held that both the Workmen's Compensation Act and Motor Vehicles Act are altogether different laws and operate in different fields. Following the said dictum I also hold that, except Chapter X, Motor Vehicles Act cannot override the provisions of Workmen's Compensation Act. However, I would like to add here that wherever Workmen's Compensation Act is silent and found to be deficient the assistance of Motor Vehicles Act can be taken for limited purpose. However, the provisions of M.V. Act can not supplant or eclipse the provisions of the W.C. Act altogether.
14. Again in the case of National Insurance Co. Ltd. v. Sapam Devan Singh and Anr. M.A.F. No. 9 of 2000, disposed of on 3.8.2005, a Division Bench of this Court has held that the W.C. Act was enacted perior to M.V. Act, 1939 (later on replaced by M.V. Act, 1998). Their Lordships further held that the W.C. Act also being a special law it cannot be superseded by any general or other special law, unless so excepted.
15. Learned Counsel for the respondent No. 1 did not place any authority from the Apex Court or from any High Court before me to take a view that insurance companies can not be permitted to challenge the awards passed under Workmen's Compensation Act. The authorities cited on behalf of the respondent No. 1, concerning limited scope of appeal by insurance companies, are arising out of Motor Vehicles Act. Hence, the objection raised by the respondent No. 1 regarding the maintainability of appeal is hereby rejected.
16. Very recently the Hon'ble Supreme Court of India has cleared the confusion regarding application of Section 149 (2) of the M.V. Act, 1998 in appeals filed under Section 30 of W.C. Act. In the case of National Insurance Co. Ltd. v. Mastan and Anr. reported in : (2006)ILLJ704SC , the Apex Court has laid down the law in the following words:
13. Applicability of the provisions of the 1998 Act in a proceeding under the 1923 Act is confined to a matter coming within the purview of Chapter X only. It cannot be stretched any further.
17. It is beyond any doubt or dispute that in a proceeding where the right of the insurer to raise a defence is limited in terms of Sub-section (2) of Section 149, an appeal preferred by it against an award of the Motor Accidents Claims Tribunal must be confined or limited to that extent. But once a leave has been granted to the insurer to contest the claim on any ground as envisaged in Section 170 of the 1988 Act, an appeal shall also be maintainable as a matter of right, wherein the High Court can go into all contentions. The Full Bench of the Karnataka High Court, in our opinion, committed a serious error in relying upon the judgments of this Court, in terms whereof the right of appeal of the Insurance Company has been held to be limited, inasmuch in those decisions this Court was considering a situation where Sub-section (2) of Section 149 was attracted.' '18. Section 143 of the Act limits its applicability to the 1923 Act in a case where the liability arises despite the fact that the accident might have taken place without any fault on the part of the driver of the vehicle or others in control thereof. Under the 1923 Act also, as noticed hereinbefore, a workman is entitled to compensation even if no negligence is proved against the owner or any other person in charge of the vehicle. It is, thus, not possible to extend the applicability of Section 143 of the 1988 Act to include Chapter XI thereof to a claim under the 1923 Act.
19. Right of appeal is a creature of statute. The scope and ambit of an appeal in terms of Section 30 of the Act 1923 and Section 173 of the 1988 Act are distinct and different. They arise under different situations. In a case falling under the 1923 Act, negligence on the part of the owner may not be required to be proved. Therein what is required to be proved is that the workman suffered injuries or died in the Course of employment. The amount of compensation would be determined having regard to the nature of injuries suffered by the worker and other factors as specified in the Act. The findings of fact arrived at by the commissioner for Workmen's compensation are final and binding. Subject to the limitations contained in Section 30 of the 1923 Act, an appeal would be maintainable before the High Court; but to put the insurer to further disadvantages would lead to an incongruous situation.
17. In view of the authoritative pronouncement of the Apex Court, I hold that the appeals filed by the insurance Company under Section 30 of the W.C. Act, on the all the grounds are maintainable. This statutory right is not fettered by the limitations prescribed under Section 149 (2) of the M.V. Act. The objection of the respondent No. 1 is hereby rejected.
18. Turning to the question of law about the assessment of disablement, I find in the impugned Judgment and record that the applicant/claimant made any attempt to examine the doctor to prove the alleged disability. Hence, the finding of the learned Commissioner that the applicant has suffered 60% permanent disability is solely based on the certificate issued by Dr. Birchandra Singh dated 28.03.2003. In the said certificate the doctor has mentioned about physically handicapness of the applicant. But the doctor has neither assessed the percentage of the disability nor loss of earning capacity.
19. This Court had long back mandated that the examination of doctor is necessary to determine the percentage of loss of earning capacity in the case of Sanjit Kumar (supra). However, the learned Commissioner has flouted the said direction totally as discussed by me above. In the case of Shri Sanjit Kumar the following observations were made.
4. The Workmen's Compensation Act provides the mode and method to determine the Compensation. The Court cannot adopt some mode or method which is not provided in the Act. In the portion of the award quoted above, the court determined the percentage of loss of earning capacity at 50%. That power is not available with the Commissioner. So, this award shall go back to the commissioner to assess the compensation afresh and in order to do that, he may even ask the doctor to appear before him and give his opinion with regard to percentage of loss of earning capacity.
20. It is needless to say that percentage of disability is different thing and percentage of loss of earning capacity is different thing. In the case of Shivalinga S. Patil v. Erappa B. Bhavihala (Full Bench) : (2004)ILLJ1089Kant , Karnataka High Court has also held that the examination of doctor is necessary to ascertain the loss of earning capacity. It has also been held that before awarding the compensation, the learned commissioner has to examine the loss of earning capacity and it is referable to any work which the workman was capable to do at the time of accident and loss of earning capacity should not confine incapability to do the particular work, which the injured was doing at the time of accident. The relevant observations of Karnataka High Court in this regard are reproduced below for ready reference.
13…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 1, a duly qualified doctor could also do the same. Therefore, as the employer has to pay the compensation even in respect of injuries sustained which are not mentioned in the Schedule 1 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 Act better….
23. Now the words employed in Section 2(1)1) make it clear that in order to determine the total disablement, whether of a temporary or permanent nature, what is to be seen is whether the injury complained of incapacities a workman for all work which he was capable of performing at the time of the accident resulting in such disablement. Therefore, it is clear the question is not whether the workman is incapacitated to do the work which he was doing before the accident. Even though he was doing a particular work if he was capable of performing other work at that point of time, the question is whether after the accident even though he is disabled from performing the work which he was performing before the accident whether he is able to perform the other work which he was capable for performing before the accident. In that view of the matter, it is not possible to accept the contention that once it is shown that the injured is not capable of doing the work which he was performing before the accident, it amounts to total disablement.
21. It is true that the Kerala High Court in the case of K. Abdullakutty (supra) has held that the examination of medical practitioner is not necessary. However, in view of the previous judgment of this Court, in the case of Sanjit Kumar (supra). I am not inclined to follow the ratio of Kerala High Court. Similarly, the view taken by the Madhya Pradesh High Court, in the case of Beti Bai (supra) that disability and loss of earning capacity should be with reference to the job which the employee was doing at the time of accident and not that the said person is capable to perform any other work is not relied upon. With due respect, I would like to prefer the proposition of law laid down by the Karnataka High Court, in the case of Shivalinga Shivanagowda Patil (supra).
22. In the case before me the doctor certificate is totally silent about the percentage of disablement as well as percentage of loss of earning capacity. Besides this, the doctor who issued the certificate and which was made the basis of disablement and compensation is only a Physician and not an Orthopedic Surgeon, The physical disability certificate is also not supported by any other supporting certificate from a board of doctors of the Government Hospital.
23. The above part, according to the learned Counsel for the appellant the risk of driver was not covered under the relevant insurance policy. However, the Insurance Company failed to adduce any evidence to prove the aforesaid fact. Hence, I am not persuaded to re-open the question of liability of the Insurance Company. However, the Insurance Company shall be at liberty to realize the compensation amount, paid by them from, the owner, in accordance with law, if they are so advised and prove their stand.
24. In the result, the appeal stands allowed. The impugned Judgment is hereby set aside. The learned Commissioner is directed to assess the compensation afresh by giving opportunity to the applicant/respondent No. 1 to adduce medical evidence. If the applicant fails to do so, the learned Commissioner shall summon the Medical Officer himself to assess loss of earning capacity giving opportunity to both the sides to examine and cross-examine the doctor. This process shall be completed within a period of three months from the date of receipt of this order and record.
Return the L.C.R. to the Commissioner, Workmen's Compensation, Imphal, Manipur with the record promptly.