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Judgment
Thottathil B. Radhakrishnan, J.—This appeal by the insurer is against an order passed by the Workmen''s Compensation Commissioner. The claim of the applicant was allowed directing the insurer to pay compensation, interest u/s 4-A and penalty.
The first question argued is as to whether the commissioner was justified in law in imposing penalty on the insurer. As a substantial question of law, this has to be answered in favour of the insurer in view of the judgment of the Hon''ble Supreme Court of India in Ved Prakash Garg v. Premi Devi [1998 ACJ 1]. Hence, imposition of penalty as per the impugned order is vacated.
The second ground of attack is on the award of interest u/s 4-A. In terms of the judgment of this Court in M.F.A.59 of 2011, that question does not survive. In view of that judgment, the said question is answered against the appellant insurer.
The third question attempted to be canvassed as a substantial question of law is as to whether the percentage of loss of earning capacity could have been determined at 100% when the permanent disability of the workman was only 17%. For one thing, this is essentially a question of fact. Secondly and more importantly, the assessment of the loss of earning capacity as 100% has been made by the medical board. The certificate of the medical board shows that the workman had suffered 17% permanent disability and has 100% loss of earning capacity as a loading worker. The statutory authority to determine the loss of earning capacity is the medical practitioner. That having been done, it may not be appropriate, at any rate, in an appeal, to contrast between the injury suffered, CT scan report and the percentage of permanent disability qua the percentage of loss of earning capacity and thereby sit in judgment on the correctness of the medical board''s report. We are not impressed that such an exercise has to be carried out, inspite of the earnest effort by the learned counsel for the appellant to point out that on the totality of the facts and circumstances, it may not be possible to hold that the injured workman suffered 100% loss of earning capacity. We see that the Commissioner has adverted to and considered all relevant materials, including the fact that the injured was 55 years old at the time of accident and at that age, he cannot be expected to go for any other avocation. The Commissioner, in our view, has not committed any error of law in concluding that the workman suffered 100% loss of earning capacity as a loading worker. The impugned award, to that extent, does not warrant interference. The plea of the appellant in that regard is rejected.
The next issue raised by the appellant insurer is that there as no valid insurance cover. The issuance of policy is admitted. The point raised is that such policy was issued on the basis of a cheque issued by the insured which later bounced and in spite of intimation in that regard, the insured did not honour and therefore, the policy was cancelled. Applying the doctrine of uberrima fides, which is unexceptionable in the realm of insurance law, it is trite that when the policy has been issued by the insurer on the bonafide premise that the cheque based on which the policy was issued would be honoured, the policy necessarily would fall when the cheque bounced and more particularly, when the insured was informed about the bouncing of the cheque and no payment was yet made. Under such circumstances, we are inclined to take the view that the substantial question of law suggested in that regard has to be answered by holding that the insurer having issued a policy has to satisfy the award, however that, thereafter, the insurer will be at liberty to realise the amounts so paid from the insured. In the result, this appeal is allowed in part modifying the award as follows:
The second opposite party, insurer, shall pay the applicant an amount of Rs.2,44,008/- with simple interest at 12% per annum from the date of accident. On payment of the amounts in terms of this appellate award, the insurer will be at liberty to move for recovery of amounts paid by it from the insured, the first opposite party. It is further directed that any amounts already deposited shall be given due credit to while giving effect to this appellate award.