Sathasivam, J.
1. The New India Assurance Company, Mettupalayam challenges the identical order of the Commissioner for Workmen's Compensation (Deputy Commissioner of Labour), Coimabtore 12, granting compensation to various persons.
2. Though the Commissioner has passed separate orders, since the issue raised is one and the same in all these appeals, they are being disposed of by the following common judgment.
3. It is seen that the first respondent in all these appeals sustained injuries while in the course of employment with the second respondent herein. It is further seen that all of them were employed as a brick loaders under the opposite party No. 1 in the heavy goods vehicle, i.e., lorry bearing registration No. TCO 2262. It is further seen that on 30.12.1991, after loading bricks in the lorry, all of them were traveling along with the bricks and near Bathirakali Amman Koil at Mettupalayam, the lorry was upset and fell down in a pit, due to this all the applicants sustained grievous injuries. After treatment, all of them filed separate claim petition seeking appropriate compensation from opposite party No. 1 - owner of the lorry and opposite party No. 2 insurer of the lorry in question before the Commissioner for Labour. Before the Deputy Commissioner, the applicants and the Doctors who have examined the injured - applicants were also examined. The Deputy Commissioner on appreciation of oral and documentary evidence came to the conclusion that all the applicants were employed by the opposite party No. 1 as loading workers in his lorry bearing No. TCO 2262 and sustained injuries in the course of their employment. Thereafter, depending on the loss of earning capacity, determined the compensation in favour of the applicants. Questioning the said direction, the Insurance Company has preferred the above appeals.
4. Heard, Mr. Padmanabhan, learned counsel for the appellant - Insurance Company and Mr. K.V. Shanmuganathan, learned counsel for the first respondent in each appeal.
5. The learned counsel for the appellant has raised the only contention that in the light of Section 4 of the Workmen's Compensation Act 1923 (in short 'the Act'), the assessment and the ultimate determination of compensation arrived at by the Deputy Commissioner, cannot be sustained. According to him, the loss of earning capacity has to be assessed only by an expert like Doctor and in the absence of such material evidence, the amount arrived at by the Deputy Commissioner cannot be sustained.
6. On the other hand, the learned counsel for the first respondent - applicants would contend that in the light of specific plea in the application, oral evidence of the applicants, evidence of Dr. R. Kandasamy as well as wound and disability certificates, the Deputy Commissioner of Labour is perfectly justified in determining the compensation and there is no substantial question of law for interference by this Court in these appeals. He also contended that the present appeals by the Insurance Company questioning quantum of compensation determined by the Deputy Commissioner of Labour are not maintainable.
7. We have carefully considered the rival submissions.
8. At the foremost, let us consider the objection raised regarding maintainability of these appeals. It is to be noted that in these appeals the Insurance Company is mainly questioning the determination of compensation by the Deputy Commissioner of Labour. In other words, they have no grievance regarding the finding that the applicants sustained injuries in the course of their employment with the first opposite party. The learned counsel for the first respondent relying on the case of National Insurance Company Ltd., vs. Nicolletta Rohtagi reported in 2002 (4) C.T.C. 243 would contend that the Insurance Company is not permitted to canvas the conclusion regarding quantum of compensation. The said decision arose under the Motor Vehicles Act, 1988. There is no dispute that the Scheme and Procedure prescribed in both the enactments, namely, Motor Vehicles Act, 1988 and the Workmen's Compensation Act, 1923 are different. As per the Motor Vehicles Act, 1988, the Insurance Company is permitted to canvas the conclusion regarding their liability. However, during the proceedings before the Tribunal, if the Insurance Company secures an order permitting them to contest the claim petition on all aspects, they can question the finding regarding negligence and quantum, apart from its liability in the appeal before this Court. There is no such provision in the Workmen's Compensation Act. Further, as per Section 30 of the Workmen's Compensation Act, an appeal is provided to this Court on a substantial question of law and not on all aspects. Similar provision is not there in the Motor Vehicles Act. Accordingly, we are of the view that the said decision is not helpful to the objection raised by the learned counsel for the first respondent. The perusal of the appeal papers show that though substantial question of law was not framed by this Court, all the appeals were admitted and notice was issued to the respondents on 31.10.1994. Though the appellant - Insurance Company has raised the substantial questions of law to be decided by this Court in the memorandum of grounds of appeal, since there is a procedural mistake in not framing the same at the time of admission, on this ground, we are not inclined to dismiss all these appeals at this stage.
9. Now, coming to the merits of the claim made by the appellant - Insurance Company, in CMA. No. 1237 of 1994, which is filed against W.C. No. 58 of 1992, the applicant herself was examined as A.W.1 and Dr. R. Kandasamy as A.W.2. The applicant has also produced Exs.A.1 to A.5. On the side of the Insurance Company, their Officer was examined as P.W.1. It is seen from the evidence of A.Ws.1 and 2 that, particularly, the Doctor - A.W.2 that the applicant sustained nine injuries, out of which four injuries are grievous in nature and therefore the applicant could not do normal activities and could not become normal even after treatment for 21 days. The Deputy Commissioner, considering the medical evidence and after seeing the physical condition of the applicant, assessed her loss of earning capacity of as 100% and fixed the compensation of Rs. 76,545/-.
10. In CMA. No. 1238 of 1994, which is filed against W.C. No. 59 of 1992, the applicant herself was examined as A.W.1, Dr. M. Thippaiyan as A.W.2 and Dr. R. Kandasamy as A.W.3 and also marked the physical disability certificate as Ex.A.1 and the wound certificate as Ex.A.2. On the side of the Insurance Company, no one was examined and no document was marked in support of their defence. The Deputy Commissioner, in the light of the evidence of A.Ws.1 to 3 and Exs.A.1 and A.2, assessed the loss of earning capacity of the applicant at 50% and determined the compensation of Rs. 47,390/-.
11. In CMA. No. 1239 of 1994, which is filed against WC. No. 60 of 1992, the applicant himself was examined as A.W.1 and Dr. Kandasamy as A.W.2 and the wound certificate has been marked as Ex.A.1. On the side of the Insurance Company, no one was examined and no document has been marked in support their defence. The Deputy Commissioner, in the light of the evidence of A.Ws.1 and 2 and Ex.A.1, assessed the loss of earning capacity of the applicant at the rate of 50% and determined the compensation as Rs. 48,660/-.
12. In CMA. No. 1240 of 1994, which is filed against WC. No. 173 of 1992, the applicant himself was examined as A.W.1 and Dr. R. Kandasamy as A.W.2 and also marked the wound certificate as Ex.A.1. No oral and documentary evidence was let in on the side of the Insurance Company. Here again, the Deputy Commissioner, on appreciation of the evidence of A.Ws.1 and 2 and Ex.A. 1, 3 assessed the loss of earning capacity of the applicant at the rate of 100% and fixed the compensation as Rs. 1,05,895/-.
13. In CMA. No. 1598 of 1998, which is filed against WC. No. 197 of 1996, the applicant herself was examined as A.W.1 and Dr. Madhumathi as A.W.2 and marked Exs.P.1 to P.3. Here again, the Insurance Company has not let in oral and documentary evidence. The Deputy Commissioner, on appreciation of the evidence of A.Ws.1 and 2 and Exs.A.1 to A.3, assessed her loss of earning capacity at 65% and fixed the compensation at Rs. 66,934.00.
14. Mr. Padmanabhan, learned counsel for the appellant by pointing out Section 4(1)(c) of the Act would contend that in the absence of assessment by the qualified medical practitioner, the Deputy Commissioner of Labour cannot assess the loss of earning capacity by himself. Accordingly, prayed for setting aside the orders passed by the Deputy Commissioner and for remanding the same for fresh disposal.
15. After perusing the relevant statutory provisions, the evidence of the applicants, Doctors, wound certificate, disability certificate etc., and the discussion of the Deputy Commissioner, we are unable to accept the said contention. In this regard, it is relevant to refer Section 4(1)(c) and Explanation II of the Act.
'4. Amount of compensation.- (1) Subject to the provisions of this Act, the amount of compensation shall be as follows namely,:-
(a).....
(b) .....
(c) Where permanent partial disablement results from the injury.
(i) in the case of an injury specified in Part II of Schedule I, such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury; and
(ii) in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury;
Explanation I.- Where more injuries than one are caused by the same accident, the amount of compensation payable under this head shall be aggregated but not so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries.
Explanation II.- In assessing the loss of earning capacity for the purpose of sub clause (ii), the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in relation to different injuries specified in Schedule I. '
16. It is seen from the above provision, in the case of injury not specified in Schedule I, compensation has to be determined in proportion to the loss of earning capacity permanently caused by the injury. No doubt, the assessment has to be made, based on the evidence / certificate of the medical practitioner. In the above appeals, we have verified the evidence of the injured - applicants and the evidence of Dr. R. Kandasamy in WC. Nos. 58 to 60 and 173 of 1992 and Dr. Madhumathi in WC. No. 197 of 1996. We also verified the wound certificates, physical disability certificates etc., Though the Deputy Commissioner has assessed the loss of earning capacity in respect of the applicants, it cannot be concluded that without an acceptable evidence he had assessed the same, as argued by the learned counsel for the appellant. In such a circumstance, we are of the view that the Deputy Commissioner has not contravened Section 4(1)(c)(ii) as well as Explanation II. In the case of unspecified injury resulting in permanent / partial disablement, it is not possible for a normal workman to establish his loss of earning capacity by his prospects or the offers to him in the open labour market. In such a circumstance, the Commissioner has to do in discharge of his judicial functions, is to assess the loss of earning capacity of the workmen,
(i) in the light of the medical report; and
(ii) on the basis of
A. his own estimate of the workman's possibilities of employment in the open labour market; and
B. similar other relief factors.
17. Where the Commissioner has to deal with cases of permanent partial disablement inflicted by injuries which are not scheduled, the provisions of Section 4(1)(c)(ii) of the Act are attracted, and the Commissioner has to assess the compensation in terms of those provisions. In assessing the compensation in such cases, the most important and paramount thing that the Commissioner has to consider, is the loss of earning capacity. He has to consider,
(i) the nature of work that a workmen has to do;
(ii) the nature of the injury; and
(iii) other environmental circumstances.
The principles upon which the loss of earning capacity under Section 4(1)(c)(ii) have to be determined are,
1. Loss of physical capacity is not co-extensive with loss of earning capacity.
2. Loss of earning capacity is not co-extensive with loss of physical capacity.
3. There may be cases where even the loss of physical capacity may be of such nature as to make it abundantly clear that there has been large, if not complete, loss of earning capacity even though there has been no immediate reduction in wages.
Medical evidence by itself is not conclusive or decisive factor in the loss of earning capacity. It can only establish the nature of disablement or the physical injury. But to what extent the physical disablement causes loss of earning capacity is not for medical evidence to state. It is for the Commissioner to settle in case of a dispute between the parties, and such settlement can only take placed upon the basis that-
(a) there has been a loss of earning capacity caused by the said injury, and
(b) the estimate that should be made of such loss of earning capacity, should be proportionate to the loss of earning capacity caused by the injury.
18. It is settled in series of decisions that the determination of the loss of earning capacity of a man / woman is a question of fact and is at the same time not a very easy matter. Where the case is not one of a scheduled injury, the reduction in earning capacity will have to be proved as a fact. The loss of earning capacity is not necessarily co- extensive with the loss of physical capacity. Undoubtedly, when Doctors disagree, the Judge has to exercise his own decision. The Act is not interested in mere physical disability. No compensation can be granted for any physical disability unless there was loss of earning capacity. In the case of non scheduled injury, the loss of earning capacity can not be proved by mere medical evidence. It must be proved by evidence, which will establish that the workman was, as a result of the injury, unable to earn as much as he did before. This is a question of fact and has to be proved by evidence like any other question of fact. There can be no doubt that medical evidence as its own value in calculating the capabilities of the man both before and after the accident. But it has been pointed out in several cases that the arbitrator, namely, Commissioner should not attach too much importance to this evidence nor decide the case solely on the case of such witness. The Doctors very well estimate the loss of physical capacity for work, but the loss of earning capacity must be estimated by some other person. The best estimate that can be given is by those people who would have the opportunity of seeing the workman work before and after the accident. The workmen Compensation Act is not concerned with physical injury as such nor with the mere effect of such injury on the physical system of the workmen, but it is concerned only with the effect of injury or of the diminution of the physical powers caused thereby on the earning capacity of the affected workman. To what extent the earning capacity has been affected, it can never be for a medical witness to say. Medical evidence is opinion evidence and it is only with regard to the physical aspect of the injuries that the opinion of a medical witness is relevant and admissible as the opinion of an expert. But, the loss of earning capacity is not a matter of medical opinion and is not a matter to which a medical witness can possibly speak. The loss of earning capacity is not necessarily co-extensive with the loss of physical capacity and certainly the former does not prove the latter.
19. In the light of the above discussion and in view of the statutory provisions, more particularly, Section 4(1)(c)(ii) and Explanation II, as well as the evidence of the applicants, experts, namely, Dr. R. Kandasamy and Dr. Madhumathi, wound certificates and disability certificates etc., we are satisfied that there is no valid ground for interference. We have already held that assessment of the loss of earning capacity is a question of fact and the same depends upon the factual materials placed before the Authority. In the light of the first proviso to Section 30 of the Act, we do not find any substantial question of law for interference in these appeals. We have already referred to the fact that the appellant has not raised any other contention, except the question relating to the loss of earning capacity.
In the light of the above mentioned discussion, we reject the only contention of the learned counsel for the appellant and dismiss all the appeals. No costs. Consequently, connected CMP., is also dismissed.