ORDER
S.R. Nayak, J.
1. In this appeal filed by the Insurance Company against the order, dated 22-5-1992 in W. C. No. 28 of 1991 on the file of Commissioner for Workmen's Compensation and Asst. Commissioner of Labour, Sangareddy (hereafter shortly referred to as 'the Commissioner'), awarding total compensation of Rs. 92,085-00 in favour of the first respondent-workman, in respect of an employment injury caused to him under the provisions of the Workmen's Compensation Act, 1927 (sic. 1923) (for short 'the Act'), a short but an important question of Law arises for consideration, the question being that whether it is a 'must' for the Commissioner to insist upon the production of assessment of the loss of earning capacity by a qualified medical practitioner before he proceeds to compute the compensation payable to an inured-workman under the Act in the case of an injury, not specified in Schedule-I of the Act. This question arises for consideration in the back-drop of the following facts :-
The first respondent was a driver employed by the 2nd respondent - firm, viz., M/s. Sai Ceramics and Refractories, Kukatpally, Rangareddy district. When the first respondent-workman was driving the lorry bearing Registration No. ATR 7888 owned by the 2nd respondent-firm on 3-4-1990 at about 6-30 a. m., the said vehicle met with an accident near Mallaram village while proceeding from Hyderabad to Jagityal and on account of the said accident, the workman suffered multiple injuries. It is the case of the workman that on account of the multiple injuries suffered by him in the accident, he became totally disabled to do the job of a driver and that made the 2nd respondent-firm-employer to terminate his services after the accident. Therefore, the respondent-workman filed W. C. No. 28/91 before the Commissioner alleging the aforementioned facts and claiming compensation under the provisions of the Act.
2. In the claim application, the appellant Insurance Company was arrayed as respondent No. 2 and the Employer of the workman was arrayed as respondent No. 1 Both the respondents were served with the notices by the Commissioner and despite service of notices on them, the respondents did not appear before the Commissioner and contest the claim of the respondent-workman. In the course of enquiry, the applicant-workman examined himself as A. W. 1 and in his deposition, he reiterated the same facts, to which I have made reference as contained in his claim application. Suffice it to state that even in his deposition, the workman categorically asserted that after the accident, be became disabled to perform the duties of a driver. In addition to the oral testimony, the workman produced the disability Certificate issued by the doctor and the same is marked as Exs. A-4. The applicant-workman produced seven documents and they are marked as Exs. A-1 to A-7 and the reference to the remaining documents is not necessary for the purpose of disposal of this appeal.
3. The Commissioner, on the basis of the oral and documentary evidence placed before him and in the absence of any contra evidence and placing reliance on the decision of this Court in National Insurance Company Limited v. Mohammed Saleem Khan : (1992)IILLJ377AP , considered the disablement of the respondent - workman total and on that basis, and having regard to the statutory provisions of Section 4 of the Act read with Schedule-IV, determined the total compensation at Rs. 92,085-00 and accordingly awarded the same. Hence, this appeal by the Insurance Company. Although the owner of the vehicle is made party to this appeal i.e., the Employer, he remained absent and unrepresented despite service of notice.
4. Heard the learned counsel for the parties.
5. Sri K. Subbarao, the learned Counsel for the appellant-Insurance Company contended that the order of the Commissioner is one without jurisdiction and it suffers from an error apparent on its face and, therefore, a case is made out for this Court to interfere with the order of the Commissioner under Section 30 of the Act, Elaborating his submission, the learned Counsel for the appellant would submit that the injury suffered by the respondent-workman is non-schedule injury and, therefore, the computation of the compensation in the case of non-schedule injury is required to be done strictly in terms of the provisions of Section 4(1)(c) of the Act, as amended by the Amendment Act 22 of 1984. The learned Counsel also points out that in the present case, admittedly, there is no assessment of loss of earning capacity of the respondent-workman by any qualified Medical Practitioner as required under clause (c) (ii) of sub-section (1) of Section 4 of the Act. The learned Counsel would maintain that although it is permissible for the Commissioner in a given case not to accept the assessment of earning capacity by a Medical Practitioner, it is absolutely necessary that the Commissioner should insist in each and every case that there should be assessment of the loss of earning capacity by a competent qualified Medical Practitioner and in this case, that has not been done. Sri K. Subbarao would place strong reliance on the decision of the Full Bench of Kerala High Court in New India Assurance Company v. Sridharan 1995 I CLR 532 as well as the Division Bench decision of the same Court in Achoor Estate v. Nabeesa 1994 I CLR 822, in support of his contention.
6. On the other hand, the learned counsel for the respondent workman Sri Vijayakumar Herur raised preliminary objection to the maintainability of the appeal. He would submit that it could not be said that the order under appeal is one without jurisdiction and there is no necessity in each and every case to insist that there should be assessment of loss of income of the workman by a Medical Practitioner. Alternatively, he would argue that assuming that after the Amendment Act 22 of 1984 came into force, the Commissioner is required to insist the certification relating to loss of earning capacity of the workman by a qualified Medical Practitioner, a case is not made out to entertain the appeal u/s. 30 of the Act, inasmuch as the error committed by the Commissioner would be only an irregularity in the procedure and not be a jurisdictional error in passing the impugned Award. He would also submit that the Insurance Company, for the reasons best known to it, having chosen not to contest the claim before the original authority, should not be permitted to make any grievance before this Court after suffering an order at the hands of the Commissioner. According to him, at any rate, no substantial question of Law arises for consideration in this appeal. Dealing with the merits of the case, the learned counsel for the respondent workman would submit that there is nothing wrong on the part of the Commissioner in acting on the oral testimony of the workman and Ex. A-4 certificate issued by the competent Medical Practitioner, and to pass the order under appeal.
7. Let me first consider whether any substantial question of Law arise for consideration in this appeal.
8. Before the Amendment Act 22 of 1984, the Law did not require that the loss of earning capacity of the applicant-workman should be assessed by a qualified Medical Practitioner. The Legislature in its wisdom thought it necessary and fit to make a provision, enabling the assessment of loss of earning capacity of the workman by a qualified Medical Practitioner and this amendment came into force with effect from 1-7-1984. When the statute commands the Commissioner, who is the adjudicatory authority under the Act, to exercise power vested in him in a particular manner and subject to certain conditions statutorily laid, then the adjudicatory authority/Commissioner is statutorily bound to follow the same and if there is any departure from the prescribed procedure of violation of the conditions, then it could be straight away stated that the Commissioner has committed an illegality. At the same time, it should be noted that each and every violation of a condition or conditions or violation of rule or rules of procedure would not tantamount to commission of an error of jurisdiction. Even before the Amendment Act 22 of 1984, the Commissioner had jurisdiction to compute the compensation payable to an injured-employee. The only change brought about by the Amendment Act 22 of 1984, providing for assessment of loss of earning capacity by a qualified Medical Practitioner is an amendment regulating only this procedure to be followed by the Commissioner and it is not an amendment restricting or abridging the Commissioner's power otherwise available to him under the provisions of the Act in the matter of determination of compensation payable to the workman under Section 4 of the Act.
9. At this juncture, it is relevant to refer to the decision of the Full Bench of the Kerala High Court in New India Assurance Company v. Sridharan (supra). Their Lordships of Kerala High Court, after considering the decision of the same Court in United India Insurance Company Limited v. Sethu Madhavan 1992 II CLR 1061, on which decision the learned counsel for the respondent-workman placed strong reliance, held as under :-
'It is only in cases coming under Section 4(1)(c)(ii) there can be a dispute as to whether the Commissioner can disregard the loss of earning capacity assessed by the qualified Medical Practitioner or that he can come to his own conclusion on the basis of other evidence in the case. In para 10 of the decision in United India Insurance Co. Ltd.'s case (1992 II CLR 1061 (Kerala), the Division Bench held that a certificate prescribing the nature of the injury and its impact on the organism of the human body involves technical and special knowledge with regard to the same and, therefore, an expert opinion as regards that aspect becomes necessary and that the effect on the functioning of the organism is also a matter for the expert. But it was held that how far that would affect the workman's earning capacity depends on other factors also and that cannot be a matter exclusively for the expert to say. It continued to observe that this would depend upon not only the physical condition of the injury and the place where the injury was sustained, but would also depend upon the nature and character of the avocation of the workman at the time when he sustained the injury.'
'But when the statute specifically postulated that the compensation to be awarded should be proportionate to the loss of earning capacity, as assessed by the qualified Medical Practitioner, permanently caused by the injury, we cannot obviously overlook the legislatures intention in accepting and recognizing the expert opinion of the Medical Practitioner. It is only the medical practitioner who can, in the circumstances of the case, assess the loss of earning capacity. It would certainly depend on the facts and circumstances of each case. To hold that the Commissioner can disregard it without calling for any other data would be doing violence to the statutory provision. Of course, on the basis of the evidence tendered before the Commissioner, if he finds that the medical certificate issued by the medical practitioner cannot be accepted, he can certainly refer the applicant to the Medical Board for expert opinion and report. Without doing so, coming to a decision of his own based on the interested testimony of the applicant would not be justifiable. As it is always open to the Commissioner to send the applicant before a Medical Board, he can very well adopt that method in a case where he finds that the certificate issued by a qualified medical practitioner is found wanting or suffers from any infirmity.'
'In view of the newly incorporated words 'as assessed by the qualified medical practitioner' by virtue of Act 22 of 1984, its importance and significance cannot be overlooked. As the legislature in its wisdom chose to incorporate the aforesaid words into Section 4(1)(c)(ii), we cannot hold that it has been incorporated with no purpose. It is really with a purpose that it has been enacted. In view of the incorporation, it is not a case of ambiguity at all. In such a situation Court is not justified in stultifying the comprehensive language used by the legislature especially when there is no ambiguity at all. The intention of legislature has to be collected from the words employed in the statute. In a case where there is no ambiguity in the words used in a provision, the Court-cannot add or subtract words by its own construction. This is especially so when words are incorporated in a particular provision in a statute with a definite purpose. That purpose cannot be read down by judicial interpretation. In other words, when a provision in a statute is itself clear and unambiguous due significance must be attached to it. In other words, when the legislature used appropriate terminology, the statute has to be read in accordance with the words used therein.
'In this context, we have necessarily to consider how exactly Section 4(1)(c)(ii) stood prior to Act 22 of 1984. Prior to the incorporation, compensation for the injury not specified in Schedule I will have to decided on the basis of the percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity caused by the injury. In the case in hand, as doctor's certificate did not specifically mention the percentage of loss of earning capacity, there was no question of the Commissioner being bound by such evidence. But when the Parliament specifically incorporated the words 'as assessed by the qualified medical practitioner', its significance cannot be overlooked.'
'The general words in a statute must receive a general construction unless there is something in the Act itself such as the subject-matter with which the Act is dealing or the context in which the said words are used to show the intention of the legislature that they must be given a restrictive meaning. The words in question do not warrant that they must be given a restrictive meaning and the commissioner can determine the compensation ignoring the report of the medical officer with regard to the assessment of losses of earning capacity. The importance of the words cannot be cut down or it cannot be read as if it were not there. Importance and significance of the words in its context cannot be read down by usurping legislative functions by the Court. It is apposite to refer to Union of India v. Deoki Nandan Aggarwal (AIR 1992 SC 96) where the Supreme Court held :-
'To invoke judicial activism, to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities.'
The first task in construing words in a statute is to give it its plan and ordinary meaning and then to ascertain whether the context or some principles of construction require that any qualified meaning has to be placed on them. Various provisions of the Act do not enable us to hold that the bracketed portion in the relevant sub-section requires to be given a qualified meaning'.
'In fact the bracketed words were incorporated into the statute obviously with a view to curtail the possibility of the Commissioner arbitrarily determining the compensation. On his whims and fancy the Commissioner cannot determine the compensation under the Act. So long as there is no provision which enables the Commissioner to determine the compensation ignoring the Medical Practitioner's report, there is no question of the Commissioner avoiding it unless, of course, he wants a second report from the Medical Board.'
'In a case where there is no such report it is always open to the party concerned to get such report from the qualified medical practitioner who treated him for the injury sustained by him. It is equally possible for the opposite parties to get a report from the qualified Medical Practitioner. On a vacuum the Commissioner cannot, by substitution of his own conclusions, decide the compensation amount.
10. I am in respectful agreement with the opinion expressed by the learned Judges of the Full Bench of the Kerala High Court. It is needless to statute is clear and unambiguous and does not admit more than one meaning, then the Court should give effect to it. After the Amendment Act 22 of 1984 came into force, to being with the loss of earning capacity is required to be assessed by the qualified Medical Practitioner and by way of interpretation, it is not legally possible to hold, without offending the language, that the assessment of loss of earning capacity of the respondent-workman before the Commissioner by a qualified Medical Practitioner is not a 'must' but only discretionary. At the same time, it should be noted that the permanent or partial disablement and the loss of earning capacity are not one and the same. In other words, if the Commissioner has evidence only to show the loss of partial of permanent total disablement, but not the evidence to show the actual loss of earning capacity, he cannot straight-away conclude that the loss of earning capacity of the workman is equal to the percentage of permanent or partial total disablement. That is the settled position in Law. Reference to the Case Law is not necessary. If that is so and the statute ordains that the Commissioner should have, to being with, an assessment of the loss of earning capacity by a competent qualified Medical Practitioner for the purpose of computing the total compensation payable to a workman under the Act, then such a procedure should be adhered to and any departure from the statutorily fixed procedure should tantamount to an error of law. Therefore, it cannot be said that the appeal filed by the appellant-Insurance Company is not maintainable, inasmuch as no substantial question of Law arises for consideration. The question raised in this appeal is not only a substantial for the purpose of deciding this appeal but also, in a sense, it is a substantial question of law of general importance. Therefore, I do not find any merit in the preliminary objection raised by the learned Counsel for the respondent-workman that no substantial question of Law arises for consideration in this appeal.
11. For the same reasons stated by me supra, I also hold that after the Amendment Act 22 of 1984, assessment of loss of earning capacity, in addition to the determination of the extent of permanent or partial total disablement, has become a 'must'. In other words, before the Commissioner proceeds to determine the total compensation payable to an applicant u/s. 4 of the Act read with Schedule-IV, he should have necessarily the assessment of the loss of future earning capacity of the applicant-workman duly assessed by a qualified Medical Practitioner. In this case, admittedly, there is no assessment of loss of earning capacity of the applicant-workman by any qualified Medical Practitioner and there is only an assessment of permanent disablement determined at 50%. That itself is not sufficient for the reasons stated supra.
12. However, Sri Vijaya Kumar Herur, the learned Counsel for the respondent-workman would submit that despite the declaration of Law, the appellant-insurance company is not entitled to the reliefs at the hands of this Court. He would submit that the appellant-insurance company as well as the Employer, for the reasons best known to them, chose not to appear before the Commissioner and contest the claim of the respondent-workman. The Commissioner, in the absence of the denial of the claim of the respondent-workman by any pleading and in the absence of any contra evidence, acted on the oral testimony and the certificate, Ex. A-4, cannot be said to be no evidence. In other words, the learned Counsel for the respondent-workman maintains that the order under appeal is based on acceptable evidence and it cannot be upset at the instance of a party, which had the opportunity to contest the matter, but opted not to contest the same. I would have appreciated this argument of the learned Counsel for the respondent-workman, but for the mandatory duty cast on the Commissioner after the Amendment Act 22 of 1984 to insist and to have an assessment of the earning capacity of the applicant-workman by a qualified medical practitioner. The duty cast on the Commissioner statutorily is admittedly not complied with by the Commissioner and, therefore, it should be held that the order made by the Commissioner under appeal suffers from an error apparent on its fact. If that is so, simply because the respondents Nos. 1 and 2 i.e., Employer and Insurance Company, did not appear before the Commissioner and did not contest the claim of the workman it will not come in the way of this Court entertaining the Appeal under Section 30 of the Act.
13. As a condition precedent and with the permission of this Court, the appellant-insurance company at the time of filing this appeal, had deposited only 50% of the awarded amount before the Commissioner and the said sum of money has been withdrawn by the respondent-workman. I am also of the considered opinion that in this case, the appellant-Insurance Company should pay reasonable costs to the workman. It is needless to state that the filing of this appeal and remand of these proceedings to the Commissioner to decide afresh would not have arisen but for the lapse on the part of the Employer and the Insurance Company in contesting the claim of the workman before the Commissioner. Therefore, I quantify the costs to be paid to the workman i.e., the first respondent herein, at Rs. 3,000/-.
14. In the result and for the foregoing reasons, I allow this appeal and set aside the order of the Commissioner and the proceedings are remanded to the Commissioner with a direction to dispose of the claim of the workman afresh strictly in conformity with the provisions of the Act and the rules framed thereunder, after affording opportunity to lead additional or fresh evidence to all the parties concerned, within four months from the date of receipt of copy of this order. The Insurance Company i. e, the appellant herein, should pay the costs of Rs. 3,000/-, Rupees three thousand only, to the first respondent-workman or to his Counsel within a period of two weeks from to-day. Unless the Commissioner decides the application afresh as directed by this Court, the appellant-insurance Company shall not take any steps to recover the money already withdrawn by the workman and in the event of the Commissioner allowing the application of the workman and awarding compensation, the money already drawn by the workman shall be adjusted in final award that may be passed by the Commissioner for Workmen's Compensation, Sangareddy.