JUDGMENT
Chidananda Ullal, J.
1. The first two appeals are directed against two independent orders came to be passed by the Commissioner for Workmen’s Compensation, Hassan District, Hassan. The first appeal is directed against the Order dated February 4, 1994 in case No. WCa:SR.10/90 awarding compensation of Rs. 39,424/- together with interest at 6% p.a., whereas the second appeal is directed against the Order dated February 8, 1994 in case] No. WCa:SR. 14/90 awarding compensation of Rs. 38,176/- together with interest at 6% p.a. and the third appeal is directed against the Order dated May 13, 1994 in case No. WCA.CR.61/93-94 passed by the Commissioner for Workmen’s Compensation, Mandya Dist. Mandya, awarding compensation of Rs. 1,12,000/- together with interest at 6% p.a.
2. All these appeals are filed by the Oriental Insurance Company Limited, represented by its Regional Manager.
3. I have heard the learned Counsel for the appellant Insurance Company Sri S.P. Shankar, Sri K.L. Manjunath, learned Counsel for claimant-respondent No. 2 in the first two appeals and Sri S.T. Rajashekhar, learned advocate appearing for respondent No. 1 in the third appeal.
4. All these appeals are commonly taken up for disposal for the reason that the appellant-Insurance Company had urged a common ground that in adducing the medical evidence by respective claimants before the Commissioner for Workmen’s Compensation the Respondent-claimants did not adduce evidence as to the loss of earning capacity as contemplated under Section 4(i)(c)(ii) of the W.C. Act. The learned Counsel for the appellant-Insurance Company while taking me through the facts of the case and further taking me through the impugned awards passed by the respective Commissioners adverted to Section 4(i)(c)(ii).
While taking me through the said provision of law, it is argued by Sri Shankar that it is incumbent on the respective claimants to adduce acceptable evidence as to the loss of earning capacity in the respective claimants in examining the respective Doctors who had treated them. It is specifically argued by him that, though the claimants have examined the respective Doctors in support of their claim before the Commissioner, they have failed to adduce the evidence as to the actual loss of earning capacity in them. Therefore, according to him, either the impugned awards are liable to be set aside for want of the said medical evidence or in the alternative all the matters are liable to be remanded to the respective Commissioners with a liberty given to the Respondent-claimants to adduce the medical evidence thereto.
5. Sri Shankar had also taken me through the history of the amendment to Section 4(i)(c)(ii) by Amendment Act 2271984, whereby the said provision of law came to be amended by addition of the words “as assessed by the Qualified medical practitioners” incorporated into Section 4(i)(c)(ii) and further assisted by the additional explanation of Explanation II below Explanation I thereunder. According to him, the said provision of law had undergone structural change. With the result, the discretion vested in the Commissioner was totally subjective. In furtherance of that argument of his, he had also submitted that the said amendment had stipulated that, loss of earning capacity is to be determined by the Commissioner as assessed by the Medical Practitioner and further on the basis of Explanation II under the said provision of law.
6. In support of his argument Sri Shankar had also cited before me the following decisions:-
1. 1976(2) KLJ 396.
2. .
3. .
4. MFA 2598/91 DD.3.4.97.
“5..
6. .
7. 1976 LAB.I.C. 222.
8. .
7. The learned Counsel for the respondent No. 2 in the first two appeals Sri K.L. Manjunath and Sri S.T. Rajashekhara appearing for respondent No. 1 in the third appeal while supporting the impugned awards passed by the respective Commissioners argued that there is no substance in the argument advanced by the other side for the simple reason that the claimants in examining the Doctor who had treated the claimants had clearly spoken to the loss of earning capacity of the respective claimants or in other words, it is their submission that the appeals preferred by the Insurance Company do not merit any consideration and therefore, they are liable to be dismissed. While Sri K.L. Manjunath had cited before me the reported decisions in 1988(2) ACJ 936, 1976 ACJ 141, 1992(2) KLJ 672 and Sri S.T. Rajashekhara, learned Counsel had cited before me 1992(2) ACJ 71 land 1993(1) ACJ 181.
8. In the light of the above submissions and; counter submissions made by the respective side, the only point for my consideration in all these appeals is whether the respective claimants in examining the Doctor-witness had adduced medical evidence in support of their respective; claims as to the loss of earning capacity in them or not.
9. In consideration of the said point I have gone through the evidence adduced by the claimants respondents before the Commissioner in their respective claim as to whether they have specifically adduced medical evidence as to the loss of earning capacity in them in consonance with Section 4(i)(c)(ii). In my considered view if that exercise is done by me, that would clinch the issue for the purpose of disposal of all these three appeals. It is to be observed here that it is no more in dispute that with the change of law in incorporating the words, “as assessed by the Qualified Medical Practitioner” in Section 4(i)(c)(ii) by the Amendment Act 22/84, it is incumbent on the claimants before the Commissioner to adduce evidence by examining the medical practitioner as to the loss of earning :apacity after suffering the accidental injuries.
10. Now I turn to the medical evidence. The respective claimants lead in their respective claim petitions before the Commissioner, they are as hereunder:-
In WCA.SR. 10/1990 (MFA 1459/1994)
The respondent No. 2-claimant in his case No. WCA.SR. 10/1990 had examined Dr. Krishna Bhat, the Orthopeadic Surgeon in support of his claim. The said doctor in his evidence as to the loss of earning capacity of the respondent No. 2 in her claim case deposed as hereunder :-
“…… In my opinion the percentage of disability is to the extent of 15 to 20%, The bone in question since is major it helps in lifting the weight. Unless the plates and screws are removed by conducting another operation the appellant will not be able to work as a cooly.”
In Cross-examination of the said witness by the appellant-Insurance Company the said witness deposed further as hereunder :-
“….. I do not know from which Doctor the applicant had got the treatment for plaster of paris after the injury. In my opinion the treatment meted out was not satisfactory. I do not think that the applicant may have any chance of further improvement over her disability as stated earlier. It is not true to say that because of the good treatment the applicants disability would be reduced 5%. Though the bones are well united the patient requires the support of soft tissues, fully mobile joints. It is not true to say that due to the Age Factor the percentage of disability may be reduced.”
In WCA.SR. 14/1990 (MFA 1561/1994)
In the second appeal the co-related claim case is WCA.14/1990. In the said case the claimant Shanthamma alias Shantha had also examined the abovesaid Sri Ramakrishna Bhat in support of her claim. The said Doctor in his evidence as to the loss of earning capacity deposed as hereunder:-
“……Since the fractured bone is a major bone. In my opinion the percentage of disability is to the extent of 15 to 20%. Unless the plates and screws are removed by conducting another operation the applicant will not be able to work as a cooly.”
In the cross-examination he had deposed as follows:-
“…….I do not think that the applicant may have any chance of further improvement over her
disability as stated earlier. It is not true to say
that because of the good treatment the
applicants disability would be reduced 5%.
Though the bones are well united that patient
requires the support of soft tissues, fully mobile
joints. It is not true to say that due to the Age
Factor the percentage of disability may be
reduced.”
IN LOM.WCA.CR.61/93-94 (MFA 1423/1994)
In this appeal, the claimant had examined one Dr. H.C. Channegowda in support of his claim.
In the examination-in-Chief the said Doctor-witness in his examination had deposed as hereunder:-
Vernacular matter ommitted
In the cross-examination by the appellant-Insurance Company the said Doctor-witness had deposed as hereunder:-
Vernacular matter ommitted
11. If one carefully reads the above evidence adduced by the respondent claimants before the respective Commissioner in examining the medical practitioner, one cannot say that there is no evidence adduced by the claimant’s respondents as to the loss of earning capacity in them as contemplated under Section 4(i)(c)(ii).
12. In this context, it is relevant to refer to what was held by the Division Bench of this Court in unreported decision in MFA 2598/1991 (dated April 13, 1997) and in the said decision, the two decisions of the learned single Judges of this Court in the cases of Oriental Insurance Co., Ltd., v. Tajuddin Abdul Rahim Karanche (1996-III-LLJ-(Suppl.)-1016) (Kant) and Oriental Insurance Co., Ltd. v. Mohammed Haneef came for consideration. The abovesaid decisions are also cited by the learned Counsel for the appellant-Insurance Company, Sri S.P. Shankar. In para (6) & (7) of the Division Bench decision referred to above the Division Bench of this Court held as hereunder :-
“In Tajuddin’s decision it was stated that the Commissioner’s discretion was curtailed to the extent of gauging the loss of earning capacity on the basis of the assessment made by the medical expert in terms of Section 4(i)(c)(ii) of the Act. In Mohammed Haneef’s case it was noticed that Section 4(1) cannot be read in isolation, but should be read along with Section 19 of the Act, if so read it enables the Commissioner to settle the claim made by a workman, who has sustained injury or any other claim thereto and has exclusive power to determine and all provisions should be read in aid of exercise of such power. In this background, a reference to Division Bench has been made to settle the apparent conflict between the two decisions. The two decisions if read carefully are not in conflict with one another at all. While in Mohammed Haneef’s case what is stated is, it is the Commissioner who has jurisdiction to fix the quantum and settle the compensation in terms of Section 19 of the Act, whereas what is stated in Tajuddin’s case is that the Commissioner does not have a discretion in the matter of this nature and he has to rely upon the assessment made by the medical expert and determine the loss of earning capacity. Even assuming for a moment that the view taken in Mohammed Haneef’s case is that the Commissioner alone has the power to ultimately settle the claim, still he has to rely upon the medical evidence to assess the compensation payable. When that aspect is to be dealt with, it is not stated therein that particular provisions will have to be ignored. On the other hand, what is stated therein is that the power vested under Section 19 of the Act has to be exercised bearing in mind all provisions in the Act and provisions should be read in aid of exercise of such power on the whole. We do not find any conflict between the two decisions.
In the present case, the compensation determined by the Commissioner is to an extent of Rs. 65,541/- but we find that there is no material at all forthcoming in the share of medical evidence making assessment of the loss of earning capacity. Compensation is payable in respect of the loss of earning capacity and in respect of other heads in terms of Section 4(i)(c)(ii) of the Act. Therefore, in order to determine as to what is the loss of earning capacity, necessarily the Commissioner will have to rely upon the medical evidence and in this case we have adverted to the medical evidence. It indicates the nature of injury sustained by respondent No. 1, the period during which he was in the hospital and the Doctor found that there was pain in the back, which continued and he had been advised to take rest and to do only light work, as it may further deteriorate the injury sustained by him, if he engages himself in any hyperactive work and he had been advised specifically that he should not lift heavy goods or things as that would deteriorate his condition. In the circumstances, necessarily it would affect his earning capacity has not been disclosed in the evidence of the; Doctor, who has been examined and the same should be inferred on the broad statement made by him.”
13. Now if we examine the above evidence led in by the claimants before the Commissioner, in the light of the Division Bench ruling of this Court, we cannot say that the claimants before the Commissioner in the above three claim petitions have not adduced evidence as to their loss of respective earning capacity in examining the qualified Medical Practitioner before the Commissioner. We should bear in mind here that the loss of earning capacity according to the above Division Bench ruling should be inferred on the broad statement made in the medical evidence.
14. That being the position, I am of the view that there is no substance in the argument of the learned Counsel for the petitioner Sri S.P. Shankar that the claimants before the Commissioner had not adduced medical evidence as contemplated under Section 4(i)(c)(ii) as to their respective loss of earning capacity. Therefore, I am of the view that all these three appeals are liable to be dismissed with an award of cost as against the appellant-Insurance Co., and that cost, I assess at Rs. 1,000/- each.
15. All the appeals therefore fail and accordingly stand dismissed with cost of Rs. 1,000/- each. Let the appellant-Insurance Co. pay the same to the respective respondents-claimants, besides paying S forthwith the sums due under the three different awards hereunder challenged, if it had not done so yet.