The Judgment of the Court was delivered by
Pareed Pillay, A.C.J:— Appellant (New India Assurance Company) is the third opposite party in W.C.C No. 118 of 1988 before the Deputy Labour Commissioner (Commissioner for Workmen's Compensation), Kozhikode. First respondent (applicant) filed application under S. 22 of the Workmen's Compensation Act, 1923 (referred to as the Act for brevity) claiming compensation for personal injuries sustained by him on 14 November 1987 during the course of his employment as driver in the autorikshaw KED 1232 owned by the second respondent. Applicant sustained injuries including fracture of tibia and fibula. Second respondent admitted the employment of the applicant as his driver. The accident is also admitted.
2. This is a case where the qualified medical practitioner certified the percentage of the disability and the Commissioner did not accept the same. Commissioner fixed 100 per cent loss of earning capacity and on that basis determined the compensation. Applicant's contention is that the compensation determined by the Commissioner is without jurisdiction. It is contended that in terms of S. 4(1)(c)(ii) of the Act the Commissioner has no jurisdiction to fix percentage of disability at variance with the percentage of disability certified by qualified medical practitioner. According to the appellant, Commissioner has no discretion in the matter and as the very section itself states that the compensation has to be assessed on the basis of the loss of earning capacity as assessed by the qualified medical practitioner and where he certifies the percentage of loss of earning capacity the Commissioner is bound to accept the same.
3. Applicant's contention is that Commissioner being the authority to fix the compensation under the Act he has to fix the loss of earning capacity on the basis of which compensation is to be awarded. It is stated that where the qualified medical practitioner has not certified the percentage of the loss of earning capacity, the Commissioner can really fix the same on other evidence. Applicant's stand is that the certificate issued by the qualified medical practitioner is only a piece of evidence just like other evidence and it is for the Commissioner to judge its probative value and effect.
4. For a resolution of the rival contentions it is necessary to read S. 4 of the Act. Section 4 reads:
“4. Amount of compensation.— (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:
(a) Where death results from the injury:
an amount equal to forty per cent of the monthly wages of the deceased workman multiplied by the relevant factor; and amount of twenty thousand rupees, whichever is more;
(b) Where permanent total disablement results from the injury:
an amount equal to fifty per cent of the monthly wages of the injured workman multiplied by the relevant factor;
or
an amount of twenty-four thousand rupees, whichever is more;
Explanation I ……..
(c) Where permanent partial disablement results from the injury:
(i) in the case of an injury specified in Part II of Sch. 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 Sch. 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 …………
Explanation II.— In assessing the loss of earning capacity for the purpose of Sub-cl. (ii), the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in relation to different injuries specified in Sch. I.
In this case, the workman has sustained only non-scheduled injuries and hence S. 4(1)(c)(ii) alone has application.
5. Section 4 of the Act provides for the determination of the amount of compensation. Section 4(1)(a) deals with the case where death results from the injury. The compensation in such a case shall be the amount equal to forty percent of the monthly wages of the deceased workman multiplied by the relevant factor or Rs. 20,000 whichever is more. Section 4(1)(b) deals with permanent total disablement resulting from the injury. The compensation in such a case shall be the amount equal to fifty per cent of the monthly wages of the injured workman multiplied by the relevant factor or Rs. 24,000 whichever is more. “Relevant factor” means the factors specified in the second column of Sch. IV against the entry in the first column of that schedule specifying the number of years which are the same as the completed years of the age of the workman on his last birthday immediately preceding the date on which the compensation fell due (vide Explanation I). Explanation II is to the effect that where the monthly wages of a workman exceed one thousand rupees, his monthly wages for the purposes of Cls. (a) and (b) shall be deemed to be Rupees one thousand only. Sub-clause (c) of S. 4(1) is concerned with permanent partial disablement resulting from the injury. Part II of Sch. I has enumerated list of injuries resulting in permanent partial disablement. In a case coming under the category of permanent partial disablement, such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified under the schedule as loss of earning capacity indicated therein will have to be taken into consideration for determining compensation.
6. Section 4(1)(c)(ii) deals with a case where the injury is not specified in Sch. I. In such a case, 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 will have to be considered for determining the compensation. Where the injury does not come under Part I or Part II of the First Schedule, S. 4(1)(c)(ii) applies. The bracketed portion in the relevant provision, viz., “as assessed by the qualified medical practitioner” was incorporated into the Act by Act 22 of 1984 with effect from 1 July 1984.
7. The question that arises for consideration is whether the loss of earning capacity assessed by the doctor has to be given its due weight or the Commissioner can unilaterally arrive at a conclusion disregarding the certificate. It is contended by the appellant that in a case where S. 4(1)(c)(ii) applies, the Commissioner cannot on his conjecture substitute the proportionate loss of earning capacity contrary to the assessment by the medical practitioner and assess compensation by himself. Learned counsel for the applicant submitted that in a case where there is other evidence with regard to the loss of earning capacity of a workman, the Commissioner is not pinned down to what has been mentioned in the medical practitioner's certificate.
8. In United India Insurance Company, Ltd. v. Sethu Madhavan [1992 (2) K.L.T 702], a Division Bench of this Court held that though the disability certificate is one of the basic documents necessary to establish the disablement sustained by the workman as a result of the injury, that cannot be equated with the loss of earning power, that the loss of earning power is a question of fact which has to be judged on the basis of the nature of the injuries sustained having regard to the nature of the avocation of the workman at the time when he sustained the injury along with other attendant factors and that it is not for the medical practitioner to speak as to the loss of earning power but the same is a question to be adjudicated by the Commissioner. The Bench observed that simply because loss of earning capacity has to be assessed by qualified medical practitioner it is not correct to say that it cannot be subject to scrutiny by the Commissioner who alone as per the provisions of the Act has the jurisdiction to assess the quantum of compensation.
9. Appellant relied on the Division Bench decision in M.F.As 879 of 1988 and 6 of 1989 in support of its contention that the Commissioner has no discretion to fix the loss of earning capacity. The Court held that if it is not possible for the Commissioner to classify the injury suffered by the workman under Part I or Part II of Sch. I, it is not open to him to make his own assessment of the disability. It was held that the Commissioner cannot make his own assessment and even if he did so it is not warranted by statutory provision. As the statute does not empower the Commissioner to examine the applicant by himself to assess the loss of earning capacity, he cannot undertake such an exercise. If he undertakes so, it would create serious problems as it may not be possible for the opposite side to rebut the finding of the Commissioner by cross-examining him. The absence of such discretionary power to the Commissioner can very well be understood. It is essentially for the doctor who examined the workman to ascertain whether a disablement is a partial one and what exactly is the percentage of the loss of earning capacity. When there is no other evidence, the Commissioner has necessarily to bank on it for determining the compensation.
10. As the injuries sustained by the applicant are not scheduled injuries, compensation has to be decided as per S. 4(1)(c)(ii). It is contended that as S. 4(1)(c)(ii) postulates that compensation has to be determined on the basis of loss of earning capacity “as assessed by the qualified medical practitioner” and as the Commissioner is not clothed with power to assess compensation disregarding the medical officer's assessment, he cannot overstep his jurisdiction and determine the compensation in a fanciful or whimsical manner. Contention that since qualified medical practitioner is competent to assess the loss of earning power his assessment has to be treated as the last word in the determination of the compensation by the Commissioner is not tenable as it is always open to him to send the applicant before any Medical Board for thorough examination and consider the entire evidence before him.
11. It is only in cases coming under S. 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 Company case [1992 (2) K.L.T 702] (vide supra), Division Bench held that a certificate prescribing the nature of the injury and its impact on the organ of the human body involves technical and special knowledge with regard to the same and, therefore, expert opinion as regards that aspect becomes necessary and that the effect on the functioning of the organ is also a matter for the expert. But it was held that how far that would affect 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.
12. 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 Legislature's 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 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.
13. 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 S. 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 the 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, 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.
14. In this context, we have necessarily to consider how exactly S. 4(1)(c)(ii) stood prior to Act 22 of 1984. Prior to the incorporation, compensation for the injury not specified in Sch. I will have to be 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.
15. 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 retrictive 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 loss 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 [1992 — I L.L.N 42], where the Supreme Court held, in Para. 14, at page 48:
“…..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 plain 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.
16. 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.
17. 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.
18. This is a case where natural and grammatical meaning of the incorporated words have to be understood. According to Lord Brougham, “the true way” is to take the words as the Legislature has given them, and to take the meaning which the words given naturally imply, unless where the construction of those words is, either by the preamble or by the context of the words in question, controlled or altered. In the words of Viscount Haldane, if the language used has a natural meaning we cannot depart from that meaning unless, reading the statute as a whole, the context directs us to do so. In construing statutes the grammatical and ordinary sense of the word has to be adhered to, unless it leads to some absurdity or some repugnance or inconsistency with the rest of the instrument. If there is any repugnance or inconsistency, grammatical and ordinary sense of the words can be emphasised so as to avoid absurdity and inconsistency. Lord Atkinson in Corporation of City of Victoria v. Bishop of Vancouver Island [A.I.R 1921 P.C 240], held that in the construction of statutes their words must be interpreted in their ordinary grammatical sense unless there be something in the context, or in the object of the statute in which they occur or in the circumstances in which they are used, to show that they were used in a special sense different from their ordinary grammatical sense. Natural and ordinary meaning of words should not be departed from unless it can be shown that the legal context in which the words are used requires a different meaning. In Union of India v. Deoki Nandan Aggarwal [1992 - I L.L.N 42] (vide supra), the Supreme Court held thus, in Para. 14, at page 48:
“…It is not the duty of the Court either to enlarge the scope of legislation or the intention of the Legislature when the language of the provision is plain and unambiguous. The Court cannot rewrite recast or refrane the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the Courts. The Court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the Legislature, the Court could not go to its aid to correct or make up the deficiency. Courts shall decide what the law is and not what it should be. The Court of course adopts a construction which will carry out the obvious intention of the Legislature but cannot set at naught legislative judgment because such course would be subversive of constitutional harmony and committee of instrumentalities…. Modifying and altering the scheme and applying it to others who are not otherwise entitled to under the scheme, will not also come under the principle of affirmative action adopted by Courts sometimes in order to avoid discrimination …..”
19. It is also equally appropriate to refer to Delhi Transport Corporation v. Delhi Transport Corporation Mazdoor Congress [1991 — I L.L.N 613], where the Supreme Court held that the golden rule of statutory construction is that the words and phrases or sentences should be construed according to the intent of Legislature that passed the Act and that all the provisions should be read together. The Supreme Court emphasised the need of the Court to give due importance to the words in a statute which are in themselves precise and unambiguous. Thus, the settled legal position is that in a case where there is no scope for doubt or ambiguity it is not necessary for the Court to make a further probe into the other sections in the statute to arrive at an opposite conclusion than what has been contained in the statute.
20. Section 11(1) provides that where a workman has given notice of an accident, he shall if the employer before the expiry of three days from the time at which service of the notice has been effected, offers to have him examined free of charge by a qualified medical practitioner, submit himself for such examination and the workman, if so required, has to submit himself for such examination from time to time. Proviso to the section states that a workman shall not be required to submit himself for examination by a medical practitioner otherwise than in accordance with rules made under the Act or at more frequent intervals than may be prescribed. Section 11(2) enables the Commissioner at any time to refer the workman for examination before a qualified medical practitioner. Section 11(2) provides that if the workman refuses to submit himself for examination by a qualified medical practitioner or in any way obstructs the same, is right to compensation shall be suspended during the continuance of such refusal or obstruction unless, in the case of refusal, he establishes that he was prevented by sufficient cause from so submitting himself. Sub-clause (3) states that if a workman, before the expiry of the period within which he is liable under Sub-sec. (1) to be required to submit himself for medical examination, voluntarily leaves without having been so examined the vicinity of the place in which he was employed, his right to compensation shall be suspended until he returns and offers himself for such examination. In a case where an injured worker has refused to be attended by a qualified medical practitioner whose services have been offered to him by the employer free of charge or having accepted such offer has deliberately disregarded the instructions of such medical practitioner or having been so attended has deliberately failed to follow the instructions given by the medical officer and where the injury has been aggravated, compensation will have to be decided accordingly.
21. Thus, there cannot be any difficulty to conclude that in a case where the workman sustained non-scheduled injury, he will have to adduce evidence regarding the loss of earning capacity suffered by him on account of the accident. If the employer wants to prove that he is not liable to pay compensation, the onus is upon him to establish that there were circumstances in the case which confer immunity against the liability to pay compensation. In cases of non-scheduled injuries falling under S. 4(1)(c)(ii) workman is required to establish the loss of earning capacity. One of such evidence certainly would be the qualified medical officer's certificate. In the case in hand, the injury suffered by the applicant is a non-scheduled one, compensation has to be awarded as per the provisions of S. 4(1)(c)(ii). As the medical certificate shows only 30 per cent disability and does not mention the loss of earning capacity, there is really dearth of evidence to assess the compensation under the Act, the injury being a non-scheduled one.
22. Section 20(3) provides that, the Commissioner may, for the purpose of deciding any matter referred to him for decision under the Act, choose one or more persons possessing special knowledge of any matter relevant to the matter under inquiry to assist him in holding the inquiry. In 1992 (2) K.L.T 702 it has been held that in view of S. 20(3) of the Act it is idle to contend that the Commissioner has to ipso facto accept the certificate of the doctor prescribing the percentage of loss of earning capacity. What S. 20(3) has provided is that the Commissioner may for the purpose of deciding any matter referred to him for decision under the Act, choose one or more persons possessing special knowledge of any matter relevant to the matter under him in holding the inquiry. Of course, under S. 20(3) the Commissioner may adopt that mode. But without adopting that mode Commissioner cannot on his own assesses the compensation on mere conjecture. The power is there to the Commissioner to refer the workman to any other expert for opinion of course, the Commissioner can summon the doctor when there is ambiguity in the certificate as to the loss of earning capacity and examine him. The Commissioner can very well refer the applicant to a Medical Board for examination and report. Despite all these powers, to hold that the Commissioner without having recourse to them can assess compensation on his surmises would be too far-fetched.
23. To sum up the position, we hold that in a case where the report of the qualified medical practitioner certifying loss of earning capacity alone is there and no other evidence is available the Commissioner cannot ignore the report and fix the compensation disregarding it. In a case where the applicant has produced only the medical certificate and has not produced any other evidence and when the Commissioner has not called for a second medical report or has not cared to send the applicant to be examined by a Medical Board, he cannot just ignore the medical practitioner's report and determine the compensation on the basis of his own assessment. The probative value of the report of the qualified medical practitioner will have to be considered on its own along with other evidence, if any. As the Commissioner has assessed the compensation without any data, the matter requires reconsideration by him. The case is remitted to the Commissioner for de novo consideration in accordance with law. Parties are at liberty to adduce further evidence, if they are so advised.
24. Miscellaneous first appeal stands allowed as stated above.