M. Ramachandran, J. 1. The Commissioner for Workmen's Compensation, Kozhikode had, by a common order dated August 3, 1991, disposed of two claims, W.C.C.Nos. 184 and 186 of 1990 filed before him claiming compensation under the Act. The claim arose consequent to a motor accident. KRZ 9239, a stage carriage vehicle, on February 22, 1990 was under the charge of K.Mohanan (applicant in WCC No. 184/1990) and K. Kunhimoideen (applicant in WCC No. 186/1990) who were respectively the conductor and driver thereof. Another bus coming from behind had hit the above vehicle, at Cheruvannur on the said day. As a result of the accident, they claimed, they had sustained severe injuries. They were given treatment in the out patient section of the Medical College Hospital, Calicut and thereafter were receiving, according to them, medical attention for a considerable period. The claimants version was that they were completely disabled to do their work and consequently claimed Workmen's Compensation from their employer 1st respondent. The insurer was also impleaded as a party to the proceedings Compensation of Rs. 1,04,960/- and Rs. 1,02,975/- respectively were claimed.
2. Insurance coverage had been admitted. Both the respondents objected the claims on the ground that no disablement was sustained by the employees, and the claim amount was exorbitant. The claimants had examined themselves and made available documentary evidence in support of their claims.
3. The Commissioner found that the applicants were workmen in a scheduled employment, and the accident leading to the injuries occurred during and in the course of their employment. There was no dispute regarding the insurance coverage or the earnings and age of the claimants. As regards the disability of the workmen, he relied on Exts.P4 and P8 certificates issued by the medical practitioner. The said medical-certificates are extracted hereunder:
''Exhibit P4-He sustained lacerated injury on the scalp which was sutured. He also had tenderness over the neck. Even now patient has severe headache and gets pain in the neck especially while turning the neck or flexing it. The injury in the neck causing tenderness in the neck had produced crushing of the stirnomastriod muscle and hence the difficulty in turning and flexing the neck. Because of the above disabilities patient has great difficulty in working as Conductor in a bus."
"Exhibit P8-He sustained lacerated injury' on the oscipital region of scalp which was sutured. Even now patient has pain in the site of injury and severe recurrent headache making it difficult to concentrate on any work. Just below the oscipital region in the back of neck also he has tenderness and especially while turning the neck the pain is aggravated. Because of the above disabilities following the injury he has great difficulty in concentrating on any work and driving any vehicle."
4. It is seen that the claimants had pleaded that they are unable to work any more. Assessing the situation, the Commissioner, arrived at the following finding:
"I have personally verified the injuries shown to me by the applicants. From the scrutiny of the Medical records and taking into consideration of the oral evidence of the applicants, I hold that the applicants in these cases have lost their earning capacity by 70% each. The limited period of hospitalisation of the applicants and absence of records relating to subsequent treatment leads me to such an assessment only."
5. On this finding the claimants were directed to be paid compensation of Rs.74,127/- and Rs.71,348/-.. The insurer-was directed to pay the compensation amount with 6% interest from the date of application. There was also a penalty clause incorporated in the order.
6. The insurance company has come up in appeal. They have confined their argument to the justifiability and legality of the quantum of compensation awarded alone. It is submitted that the certificates produced were unreliable and being a non-scheduled injury, loss of earning capacity could have been assessable only by a qualified medical practitioner. The approach evidenced by the order, wherein the Commissioner had taken the responsibility of such assessment to himself, it is submitted, was impermissible.
7. We had occasion to go through the records. Willingness to shoulder responsibility by itself normally cannot be found fault with. But, when it is impermissible by statute, the decision becomes tainted and consequently arbitrary. The Commissioner by his order is empowered to impose liability on third parties. An insurer should not be burdened with undue liability, and only because of their presence in the array of parties, a relaxed standard is not to be employed. Not only will it be uncharitable, it is also likely to give false signals to litigants. We are of the opinion that the Commissioner erred in himself assessing the loss of earning capacity and for the above reason alone, the orders are liable to be set aside as there was no advertence to the mandatory conditions prescribed by Section 4(1)(c)(ii) of the Workmen's Compensation Act. We rely also on the Full Bench decision reported in New India Assurance Co. Ltd. v. Sreedharan 1995-II-LLJ-362 (Ker- DB) for the above proposition of law. The loss of earning capacity permanently caused by the injury alone qualified to be assessed.
8. While on the assessment, we may also observe that the Act, lays down definite parameters for arriving at the percentage of compensation. Schedule 1 of the Act refers to specified injuries. It is common knowledge that it will not be also possible to advert to all possible categories of disablements. But the Schedule can be resorted to as a guide line when claims in respect of non-scheduled injuries are present for assessment. Complete loss of one hand and complete loss of a foot does not entitle a victim to claim 70% compensation. In the present case, the Commissioner ought to have paused for a moment to appreciate the impact of his assessment. Was it so serious so as to render the applicants the status of a vegetable existence for the rest of his life? Or was it a temporary disablement which would have responded to treatment? It is highly improbable that on the date of examination by the Doctor which was after one and half years of the accident, the applicants were still feeling tenderness to the muscles of their neck. There was very brief hospitalisation and we are at a loss to understand what the Commissioner had attempted to convey by the observation. "The limited period of hospitalisation of the applicants and absence of records relating to subsequent treatment leads me to such an assessment only which we have already once quoted. The meaning conveyed appears to be that the Commissioner had restricted himself to award 70%, and the cases merited more. It is evident that there has been no proper application of mind while adjudicating the claim. The complaint of the appellants is well founded.
9. We find therefore that the determination in respect of percentage of disablement and loss of earning capacity is not at all satisfactory. Scanty materials also had been made the basis of the order. The applicants had failed to discharge the burden of proof. We are constrained to set aside the order.
10. However, the findings excepting those regarding percentage of disability and percentage of loss of earning capacity are being kept in tact. Considering the antiquity of the case, if possible the matter ought to have been given a quietus, but as pointed out earlier, there is dearth of materials for a proper assessment. Therefore, the matter is remanded. The applicants will have to be examined by a medical reference to the injuries they had sustained in the accident on February 22, 1990 and the quantum of compensation is to be reassessed by the Commissioner on the basis of the report of the medical board. We make it clear that the assessment need not be confined to their ability to attend to the duties of their chosen profession, but the enquiry should be as to the capability or otherwise of undertaking or being employed in an avocation that a reasonable person can pursue. We are of the opinion that the basic principle of assessment of disability should be on such lines as could be gathered from the Workmen's Compensation Act.
11. In view of the interim orders, a portion of the compensation has already been directed to be disbursed to the claimants. Excess in deposit will have to be refunded to the appellant, of course depending on the final outcome of the proceedings. On the facts of the case, we also direct that no interest will be payable to the claimants on the amount of compensation during the period the appeals were pending before this Court.
Parties are to bear their respective costs.