Ar. Lakshmanan, C.J.
1. Being aggrieved against the order rendered in Writ Petition No. 18021 of 2001 dated 12-10-2001, the above appeal was preferred by the Regional Provident Fund Commissioner, A.P. and another. The respondent - Deepak Kulkarni is a member of the provident fluid by virtue of his employment in M/s Bakelite Hylam Limited. He submitted a claim in form 10-D of Employment Pension Scheme, 1995 in June, 2000 for payment of disablement pension. He was referred to Regional Medical Board, Gandhi Hospital for the medical examination and report and a certificate about the nature and percentage of the disablement to decide the eligibility for disablement pension under the Employees Pension Scheme, 1995 which is framed under the Employees Provident Fund and Miscellaneous Provisions Act, 1952. The Medical Board issued a report and certificate after examining the respondent herein by letter dated 4-4-2001. The Medical Board certified that the case of the respondent is a permanent disability of 75 to 80%. The case of the respondent was rejected by the second appellant since the disability although permanent, is only to the extent of 75 to 80%, but not total i.e., 100%. According to the respondent, the second appellant cannot sit over the decision of the Medical Board and therefore, the order passed by him is contrary to law and contrary to the provisions of Employees Pension Scheme, 1995. Therefore, he preferred the writ petition to declare the proceedings of the second appellant herein dated 21-6-2001 refusing to consider his application for payment of disability pension as illegal and contrary to the provisions of the Employees Pension Scheme, 1995.
2. The writ petition was resisted by the appellants by filing a counter affidavit. According to the appellants, the claim of the respondent was correctly rejected and that the respondent was issued with a scheme to enable him to draw the reduced pension on attaining the age of 50 years or otherwise the respondent can opt for withdrawal of provident fund which can be granted immediately. It is further submitted that the appellants are entrusted with the responsibility of extending the benefits only in cases where the conditions laid down in the scheme are fulfilled or otherwise the scheme will become unviable.
3. It is further submitted that both paras 2(xvi) and 15 of the Scheme clearly lay down that the disablement should be permanent and total. The word 'total' has to be taken as 100% in terms of percentage and that the Central office of the appellants had issued a clarification in this regard through their circular No. Pension/2(4)/ Clarification/96 dated 24.3.1999 to the above effect basing on the opinion of the Actuary. It is also submitted that the Medical Board assessed the disability of the respondent herein as permanent to the extent of 75 to 80% and that the Medical Board is conscious of the percentage of the disability and thus they have not mentioned the word 'total' in their certificate. Thus, it is submitted that the rejection of the claim of the respondent herein is correct.
4. I. Venkatanarayana. J., allowed the writ petition filed by the respondent herein by observing:
In the present case, the petitioner suffered 75% to 80% disability. Total disablement is defined under Section 2(1) of the Workmen's . Compensation Act, 1923. The work, which the workman was capable of performing at the time of the accident, is material to consider whether it is a case of total disablement in view of the injuries sustained in the accident. If the workman is incapacitated to do all the work which he was capable of performing at the time of the accident, it is a case of total disablement. In the present case, the workman is totally incapacitated to do the work which he capable of performing at the time of the accident and, therefore, it can be treated as total disablement. This issue is already settled by this court in The National Insurance Company Limited v. Mohd. Sateem Khan, 1991 (3) ALT 504 and G. Anjaneyulu v. Alia Seshi Reddy, 2001 LLR 997.
For the foregoing discussions, the writ petition is allowed directing the respondents to consider the case of the petitioner for payment of disability pension.
5. Being aggrieved by the above, the present writ appeal is preferred by the appellants.
6. We heard Sri R.N. Reddy, learned Counsel appearing for the appellants and Sri A.K. Jayaprakash Rao, learned Counsel for the respondent.
7. Mr. Reddy submitted that the learned single Judge has failed to consider the provisions of the Employment Pension Scheme, 1995 under which the respondent herein has claimed the benefit. According to him, paras 2 to 6 and 16 of the Scheme clearly lay down that the disablement pension has to be granted to such persons whose disablement is total and permanent and that the word 'total' has to be taken as 100% in terms of the percentage. He would further submit that if the benefits are extended to cases less than 100% disablement, the object of the Scheme will be defeated. It is a self-financing scheme and not sponsored by the State and it is also different from the compensation which is paid to a workman by the employer under the provisions of Workmen Compensation Act. He would further submit that the decisions relied on by the learned single Judge were not relevant to the facts of the instant case since the ratio decided in the said cases was with regard to the payment of compensation by the employer, but not with regard to the percentage of the disability and that the percentage of disablement has to be decided by the Medical Board alone and if there is any discrepancy in the report, the matter has to be referred to Medical Board itself for clarification and rectification. Thus, Mr. Reddy would submit that the order of the learned single Judge is liable to be set aside and the matter has to be referred back to the Medical Board once again for reconsideration.
8. The learned Counsel appearing for the respondent would submit that Section 15 of the Employees Provident Fund and Miscellaneous Provisions Act contemplates the benefits on permanent and total disablement during the service and that a member of the Employees Pension Scheme is entitled for the pension consequent to his permanent disablement. He would further urge that under Section 17-A of the Employees Pension Scheme, 1995, the claims complete in all respects submitted along with the requisite documents shall be settled and benefit amount paid to the beneficiaries within 30 days from the date of its receipt from the Commissioner. If there is any discrepancy in the claim, the same shall be recorded in writing and communicated to the applicant within 30 days from the date of receipt of such application. In case the Commissioner fails without sufficient cause to settle a claim complete in all respects within 30 days, the Commissioner shall be liable for the delay beyond the said period and penal interest at the rate of 12% per annum may be charged on the benefit amount and the same may be deducted from the salary of the Commissioner. In the instant case, the respondent has submitted the application to the appellants and his application was rejected.
9. We have perused the order passed by the second appellant and the relevant provisions of the Scheme.
10. Para 2(xvi) and para 15 are extracted hereunder for ready reference:
2(xvi) Permanent total disablement means such disablement of permanent nature as incapacitates an employee for all work which he/she was capable of performing at the time of disablement, regardless whether such disablement is sustained in the course of employment or otherwise.
15. Benefits on permanent and total disablement during the service:
1. A member, who is Permanently and totally disabled during the employment, shall be entitled to pension as admissible under sub-paragraphs (2) to (5) of Paragraph 12, as the case may be subject to a minimum of Rs. 250/- per month notwithstanding the fact mat he/ she has not rendered the pensionable service entitling him/her to pension under Paragraph 12 provided that he/she has not rendered the pensionable service entitling him/her to pension under Paragraph 12 provided that he/she has made at least one month's contribution to the Pension Fund.
2. The monthly member's pension in such cases shall be payable from the date following the date of permanent total disablement and shall be tenable for the life time of the member.
3. A member applying for benefits under this paragraph shall be required to undergo such medical examination as may be prescribed by the Central Board to determine whether or not he or she is permanently and totally unfit for the employment which he or she was doing at the time of such disablement.
11. Para 17-A of The Employees Pension Scheme, 1995 reads thus:
17-A Payment of Pension :--The claims, complete in all respects submitted along with the requisite documents shall be settled and benefit amount paid to the beneficiaries within 30 days from the date of its receipt by the Commissioner. If there is any deficiency in the claim, the same shall be recorded in writing and communicated to the applicant within 30 days from the date of receipt of such application. In case the Commissioner fails without sufficient cause to settle a claim complete in all respects within 30 days, the Commissioner shall be liable for the delay beyond the said period and penal interest at the rate of 12% per annum may be charged on the benefit amount and the same may be deducted from the salary of the Commissioner.
12. From the above provisions, it is clear that the conditions laid down in the scheme for sanction of disablement pension are:
(a) Disablement should be total (100%)
(b) The said disablement should be permanent, and
(c) The said disablement should incapacitate the employee.
13. It is submitted by the learned Counsel for the appellants that medical certificate dated 24.4.2001 issued by NTMS, Hyderabad produced by the respondent himself mentioned that the permanent partial disability of the respondent is 60% and therefore, the scheme of the respondent was rejected correctly and the respondent is issued with claim certificate to enable him to draw reduced member's pension on attaining the age of 50 years or otherwise, the respondent can opt for withdrawal benefit which can be granted immediately.
14. In this context, it is useful to refer to the certificate issued by the Medical Board on examining the respondent herein. The certificate is re-produced hereunder:
YearTotal quantity of Rs. consumed (in lakh bulk litres)Quantity of R.S consumedfor polabte purpose (in lakh bulk litres)Quantity of R.S. consumedfor industrial purpose (in lakh bulklitres)%
(1)(2)(3)(4)(5)
1990-91814.96613.89201.0724.67%1991-92890.96663,66196.4021.34%1992-93810.15720.5789.5811.05%1993-94419.43306,7883.7021.14%1994-95137.9G31.4281.313900%(prohibition) (Export for arrack) 1995-96
(May)
(prohibition)70.9533.7037.2552.50%
Name of the Members of Medical BoardDesignation1.Dr. EA.Santosh Kumari, MemberPhysician2.Dr.P. Jawaharta), MemberSurgeon3.Dr. A- Krislinaveni, ChainnanSuperinteindent13.Report of the Medical Board and their recommendation Note : - The Medical Board should clearly certify the permanentand total disablement of the member after examining on the above lines. (Refer Para 2 (XVII, 15(3)14.Signature of the members of the Board withoffice seal and date:-Sd/-Sd/-Sd/-MernberMemberMemberRegionalMedical Board
Gandhi Hospital,
Secunderabad.RegionalMedical Board
Gandhi Hospital,
Secunderabad.RegionalMedical Board
Gandhi Hospital,
Secunderabad.
15. The certificate issued by the Medical Board particularly the columns 8, 9 and 10 clearly show as to whether the permanent and total disablement incapacitated the member- employee for all work which he was capable of performing at the time of disablement. In Columns 9 and 10, it has been mentioned that the disablement is permanent. Column 9 mentions as to whether the member is permanently and totally unfit for employment. The answer by the Medical Board for this question is 'Yes' That clearly shows that the respondent is suffering from permanent and total disablement which incapacitated him for all work which he was capable of performing at the time of disablement. In our opinion, the certificate issued has been wrongly construed by the appellants. In matters like this, the Court should go and construe the definition in its proper perspective. In our opinion, the beneficial construction is required in matters like this. It is useful to refer the Law Lexicon authored by P. Ramanatha Iyer.
16. In Ramanatha Aiyar's Law Lexicon 1997 Edition, the word 'permanent' has been defined to mean:
Permanent is defined to mean not temporary, or subject to change, abiding, remaining fixed, or enduring in character, state, or place.
The meaning of the word 'permanent' according lexicographers, is continuing in the same state, or without any change that destroys form or character, remaining unaltered or unremoved, abiding, durable-, fixed, lasting, continuing, as a permanent impression, permanent institution.
17. In the same dictionary, 'permanent disability' has been defined to mean:
The 'permanent disability' for which recovery may be had in an action for personal injuries is the permanent reduction of the injured person's power to earn money, resulting from the injury caused by the negligent act of the other party.
'Permanent employment' has been defined to mean:
An agreement to give a person permanent employment means nothing more than that the employment is to continue indefinitely, and until one or the other of the parties wishes for some good reason to sever the relation; it is opposed to temporary employment.
'Total disability' has been defined to mean:
A total disability is one, which prevents the insured from following an occupation whereby he can obtain a living; and, in determining whether such a disability exists, both his mental and physical capabilities must be considered. Total disability must of the necessity of the case be a relative matter, and must depend largely upon the occupation and employment in which the party insured is engaged. One can readily understand how a person who labours with his hands would be totally disabled only when he cannot labour at all, but the same rule would not apply to the case of a professional man, whose duties require the activity of the brain and which is not necessarily impaired by serious physical injury (as) if a person engaged in the general practice of medicine and surgery is unable to go to his business, enter his office, and make calls upon any of his patients, but is confined to the bed, and is only enabled to exercise his mind.
18. In this context, we may usefully refer to the definition of 'total disablement' as mentioned under Section 2(1) of the Workmen's Compensation Act.
'Total disablement' mans such disablement, whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement: provided that permanent total disablement shall deemed to result from the permanent total loss of the sight of both eyes or from any combination of injuries specified in Schedule I where the aggregate percentage of the loss of earning capacity as specified in that schedule against those injuries, amounts to one hundred per cent.
Provided that permanent total disablement shall be deemed to result from every, injury specified in Part I of Schedule I or from any combination of injuries specified in Part II thereof where the aggregate percentage of the loss of earning capacity, as specified in the said Part II against those injuries, amounts to one hundred per cent, or more.
19. In Randon Bragdon v. Sidney Abbott, 97-156 of US Supreme Court decided on 25-6-1998, the United States Supreme Court addressed itself an interesting question on the application of the Americans with Disabilities Act, 1990 (ADA), 104 Stat. 327, 42, USC 12101 et seq., to persons infected with the human immunodeficiency virus (HIV). Two questions were referred to for opinion. The first question is whether HIV infection is a disability under the ADA when the infection has not yet progressed to the so-called symptomatic phase. The second question is whether the Court of Appeals in affirming a grant of summary judgment, cited sufficient material in the record to determine, as a matter of law, that respondents infection -with HIV posed no direct threat to the health and safety of her treating dentist.
20. In that case, the respondent Sidney Abbott had been affected with HIV since 1986. When the incident occurred, her infection had not manifested its most serious symptoms. In September, 1994, she went to the Office of the petitioner Randon Bragdon for a dental appointment. She disclosed her HIV infection on the patient registration form. The petitioner completed dental examination, discovered a cavity and informed respondent of his policy against filling cavities of HIV infected patients. He offered to perform the work at a hospital with no added fee for his services though respondent would be responsible for the cost of using the hospital's facilities. The respondent declined. She sued the petitioner under the State law alleging discrimination on the basis of her disability. Section 302 of the ADA provides:
No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who operates a place of public accommodation.
21. A later sub-section qualifies the mandate not to discriminate. It provides:
Nothing in this sub-chapter shall require an entity to permit an individual to participate in or benefit from the goods, services, facilities, privileges, advantages and accommodations of such entity where such individual poses a direct threat to the health or safety of others.
22. The United States and the Maine Human Rights Commission intervened as plaintiffs. The District Court ruled in favour of the plaintiffs holding that the respondent's HIV infection satisfied the ADA's definition of disability. The Court further held that the petitioner raised no genuine issue of material fact as to whether respondent's HIV infection would have posed a direct threat to the health or safety of others during the course of dental treatment. The Court relied on affidavits submitted by Doctors. The Court of Appeals affirmed. It held that the respondent's HIV infection was a disability under the ADA even though her infection had not yet progressed to the symptomatic stage. The Court, of Appeals also agreed that treating the respondent in petitioner's office would not have posed a direct threat to the health and safety of others. The Court of Appeals relied on the CDC Dentistry Guidelines as well as the Policy on AIDS, HIV infection and the Practice of Dentistry, promulgated by the American Dental Association in 1991.
23. The Supreme Court reviewed the ruling that the respondent's HIV infection constituted a disability under the ADA. The Supreme Court held that the respondent's HIV infection was a disability under subsection (A) of the definitional section of the statute. The Supreme Court considered whether the respondent's HIV infection was a physical impairment. Secondly, the life activity upon which the respondent relies (reproduction and child bearing) determines whether it constitutes a major life activity under the ADA. Thirdly, whether the impairment substantially limited the major life activity. On the first question, the Supreme Court held:
We have little difficulty concluding that it is. As the Court of Appeals held 'the plain meaning of the word 'major' denotes comparative importance' and 'suggests that the touchstone for determining an activity's inclusion under the statutory rubric is its significance' 107-F. 3d, at 939, 940. Reproduction falls well within the phase 'major life activity'. Reproduction and the sexual dynamics surrounding it are central to the life process itself.
24. The Supreme Court agreed with the lower Court that the respondent's HIV infection is a physical impairment which substantially limits the major life activity as the ADA defines it. The Supreme Court granted Certiorari on question No.3 viz., the impairment substantially limited major life activity.
25. We can also now refer to the decision of the House of Lords in Bolitho Administratrix of Estate of Bolitho v. City and Hackney Health Authority, (1997) 4 All ER 771. Therein, it was held that the expert evidence tendered though can be accepted as proper there may be circumstances in which expert evidence cannot be relied upon as establishing proper level of skill and competence. If the record discloses expert evidence both for and against a particular procedure; whether the evidence adduced is reasonable and responsible and whether such evidence is capable of withstanding the logical analysis is for the Court to decide.
26. In Vinitha Ashok v. Lakshmi Hospital, : AIR2001SC3914 , the Supreme Court held:
Thus in a large majority of cases, it has been demonstrated that a doctor will be liable for negligence in respect of diagnosis and treatment in spite of a body of professional opinion approving his conduct where it has not been established to the Court's satisfaction that such opinion relied on is reasonable or responsible. If it can be demonstrated that the professional opinion is not capable of withstanding the logical analysis, the court would be entitled to hold that the body of opinion is not reasonable or responsible.
27. In Bengal Coal Company Limited v. Barhan Gope, 1983 (2) LLJ 86, a Division Bench of Calcutta High Court held:
Loss of earning capacity has to be determined by taking into account the diminution or destruction of physical capacity as disclosed by the medical evidence, and then it has to be seen to what extent such diminution or destruction should reasonably be taken to have disabled the affected workmen from performing the duties which a workman of his class ordinarily performs. The medical evidence as to physical capacity is an important factor in the assessment of loss of earning capacity. In the absence of medical evidence by doctors examining the claimant on behalf of either side, it is difficult to measure the physical disability of the claimant and thus also the diminution or otherwise of the earning capacity.
28. A Division Bench of Kerala High Court in United India Insurance Company v. Sethu Madhavan, 1993 (1) LLJ 142, was considering a case of disability and loss of earning power. The Court was also considering as to whether the Commissioner can fix percentage of disability which is at variance with that of the doctor. Therein, it was held:
In assessing the loss of earning power in a case under the Workmen's Compensation Act, whether the Commissioner is bound to accept the percentage of disability as assessed by the doctor or whether the Commissioner is free to adjudicate the question himself, is the question here.
Loss of earning power is a question of fact which has to be judged on the basis of the nature of injuries sustained and also with due regard to the nature of the avocation of the workman at the time when he sustained the injury along with other attending factors. It is not for the medical practitioner to speak as to loss of earning power but the same is a question to be adjudicated by the Commissioner. The loss of earning power is not necessarily co-existensive with the loss of physical capacity. The medical evidence, therefore, though relevant, cannot be decisive.
Simply because loss of earning capacity has to be assessed by a qualified medical practitioner, it is not correct to say the said opinion cannot be subject to scrutiny by the Commissioner who alone as per the provisions of the Act has got the jurisdiction to find the quantum of compensation.
29. In the instant case, the certificate issued by the Medical Board clearly shows that the respondent has suffered permanent disability which is a question of fact and therefore, the finding cannot be challenged by the appellants in the writ proceedings. We have already noticed different columns mentioned in the Certificate wherein the Doctors have clearly mentioned that the respondent cannot discharge his functions effectively because of the total disablement. The respondent in this case was incapacitated for all work by the post-Traumatic Right -Spastic Hemiplegia and the respondent will not be able to do any work and therefore, in our opinion, the disablement is 100%. In the instant case, it is a matter of record that on account of the injury sustained by the respondent, he became physically and permanently disabled and after examination, the Medical Board issued a certificate stating that the respondent has sustained permanent disability. The doctors have opined that the disability is equivalent to 75% to 80%. In our opinion, the percentage of disability is not the criteria. But the criteria is whether the disablement incapacitates the employee for all work which he was capable of performing at the time of disablement. In the instant case, the respondent had worked as a Supervisor and he was hit by a vehicle on 11-9-1998 while on the way to his home after duty and on account of the injury sustained, he became permanently disabled.
30. In the instant case, the certificate issued by the Medical Board showed that the respondent cannot perform the duties as he was doing on the date of accident. Therefore, the disability has to be taken as 100% irrespective of the percentage of 75 to 80%. Since the disability sustained is 100%, we are of the opinion that the respondent should succeed in getting the pension as prayed for. The writ appeal fails and it is dismissed accordingly. However, there will be no order as to costs.