Jammu & Kashmir High Court
Division vs R/O Trown on 23 July, 2026
Sr. No.
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
MA No. 242/2011 c/w
MA No. 453/2011
MA No. 609/2014
MA No. 74/2015
MA No. 75/2015 Reserved on: 07.07.2026
Date of pronouncement: 23.07.2026
Date of uploading: 23.07.2026
MA No. 242/2011
Divisional Manager,
J&K State Forest Corporation,
Division, Doda .....Applicant(s)/Appellant(s)
Through :- Mr. Vipan Gandotra, Advocate
v/s
Sh. Sher Singh
S/o Sh. Brij Lal
R/o Trown, Tehsil & Distt. Doda .....Respondent(s)
Through :- Mr. Idrees Saleem Dar, Advocate
MA No. 453/2011
Divisional Manager,
J&K State Forest Corporation,
Division Bhaderwah .....Applicant(s)/Appellant(s)
Through :- Mr. Vipan Gandotra, Advocate
v/s
Abdul Aziz Malik
S/o Khalla Malik
R/o Malna,
Tehsil and Distt. Doda .....Respondent(s)
Through :- Mr. Idrees Saleem Dar, Advocate
MA No. 609/2014
J&K State Forest Corporation,
Through its Divisional Manager
Ext. Division Ramban
.....Applicant(s)/Appellant(s)
Through :- Mr. Vipan Gandotra, Advocate
v/s
1. Jia Lal S/o Sh. Farangi
R/o Bhattan
Teh. And Distt. Ramban.
2. Ab. Quyoom
(Contractor)
R/o Malothi Bhaderwah
3. Jan Mohd.
S/o Roshan Din
R/o Bhattan The. And Distt. Ramban .....Respondent(s)
Through :- Mr. Idrees Saleem Dar, Advocate
MA No. 74/2015
Divisional Manager,
J&K State Forest Corporation,
Division, Doda .....Applicant(s)/Appellant(s)
Through :- Mr. Vipan Gandotra, Advocate
v/s
Fareed Ahmad
S/o Sher Mohd. Malik
R/o Nan-Batogra Tehsil Tathri
Distt. Doda .....Respondent(s)
Through :- Mr. Idrees Saleem Dar, Advocate
MA No. 75/2015
Divisional Manager,
J&K State Forest Corporation,
Division, Bhaderwah .....Applicant(s)/Appellant(s)
Through :- Mr. Vipan Gandotra, Advocate
v/s
Farooq Ahmad S/o Gh. Qadir Sheikh
R/o Bandoga Tehsil Tathri
Distt. Doda
.....Respondent(s)
Through :- Mr. Idrees Saleem Dar, Advocate
CORAM: HON'BLE MR. JUSTICE SANJAY PARIHAR, JUDGE
JUDGMENT
1. The aforesaid appeals arise out a claim petitions filed under
Workmen’s Compensation Act, 1923 [“the Act”]and briefly stated, the
factual background of each case is enumerated as under: –
i. MA No. 242/2011
MA No. 242/2011 a/w
Clubbed matters Page 2 of 15
a. A claim petition was filed by one Sher Singh, who suffered20% permanent disability after slipping from the Pathru,
resulting in the dislocation/fracture of his left shoulder joint. At
the time of the accident, he was 29 years of age, and the
authority under the Act awarded him compensation of Rs.
75,500/-, along with interest @ 12% per annum.
ii. MA No. 453/2011
a. A claim petition was filed by one Abdul Aziz Malik, who
suffered 30% permanent disability after sustaining injuries due
to the collapse of a shed. The shed collapsed as a result of a
falling stone, causing a fracture to his backbone. At the time of
the accident, he was 45 years of age, and the authority under
the Act awarded him compensation of Rs. 1,22,000/-, out of
which 50% has already been released in his favour.
iii. MA No. 609/2014
a. In this case, the claim petition was filed by one Jia Lal, who
suffered 60% permanent disability after falling while carrying a
wooden log. During the accident, the wooden log fell on his
right arm, resulting in a fracture thereof. At the time of the
accident, he was 25 years of age and was awarded compensation
of Rs. 4,68,525/-, along with interest @ 12% per annum.
iv. MA No. 74/2015
a. A claim petition was filed by one Fareed Ahmed, who was
employed as a Cheran (sawing) labourer in Compartment No.
71, Dessa. During the course of his employment, he suffered
50% permanent disability when his leg came underneath a log of
MA No. 242/2011 a/w
Clubbed matters Page 3 of 15
wood, resulting in a fracture of his right ankle joint. At the timeof the accident, he was 31 years of age and was earning Rs.
6,000/- per month. He was awarded compensation of Rs.
2,47,140/-, along with interest @ 12% per annum.
v. MA No. 75/2015
a. A claim petition was filed by one Farooq Ahmed, who was
employed as a Cheran (sawing) labourer in Compartment No. 9,
Section 1. During the course of his employment, he suffered
35%-40% permanent disability after sustaining injuries to his
leg and foot while working on a tree. At the time of the accident,
he was 21 years of age and was earning Rs. 6,000/- per month.
He was awarded compensation of Rs. 2,80,614/-, along with
interest @ 12% per annum, and 25% of the awarded amount has
already been released in his favour.
2. All these appeals have been preferred by the J&K State Forest
Corporation, contending that the awards suffer from illegality as the
Commissioner under the Act failed to correctly apply the law and
ignored the provisions of Section 4 of the Workmen’s Compensation
Act, 1923, which provide that compensation is payable only on
account of injuries sustained by a workman in the course of
employment. It is contended that the compensation assessed is
unrealistic and legally inadmissible, as the nature of the injuries
forming the basis for assessment and the mode of determining
compensation, which require different yardsticks, have not been
MA No. 242/2011 a/w
Clubbed matters Page 4 of 15
properly appreciated. Consequently, it is argued that the awards suffer
from perversity.
3. Placing reliance upon the judgment of a Coordinate Bench of this
Court in “Divisional Manager, J&K SFC v. Bansi Lal,” learned
counsel for the appellant submitted that, by virtue of the amendment
made to the statute with effect from 01.07.1984, the expression “as
assessed by the qualified medical practitioner” has not been correctly
appreciated by the authority under the Act. It is argued that the
provision clearly contemplates that a medical certificate, by itself,
cannot be made the basis for assessing the loss of earning capacity
unless such loss is specifically reflected therein. In the absence of any
certification by a qualified medical practitioner regarding the
percentage of loss of earning capacity, the authority was not
competent to determine the same on the basis of its own assessment.
4. Per contra, learned counsel for the respondents, while supporting the
awards passed by the authority under the Act, vehemently contended
that no substantial question of law arises for consideration. It was
submitted that the medical expert had clearly deposed before the
authority under the Act regarding the nature of the injuries suffered by
the claimants and the consequent loss of earning capacity, and that the
compensation had been correctly computed in terms of Section 4, read
with Schedule IV of the Act. Placing further reliance upon Section 12
of the Act, it was argued that the appellants are liable to pay
compensation, as the claimants were engaged by them either directly
or through contractors, and the injuries were sustained during the
MA No. 242/2011 a/w
Clubbed matters Page 5 of 15
course of their employment. Therefore, the provisions of the Act
would apply as if the claimants had been directly employed by the
principal employer, the only stipulation being that the amount of
compensation is to be calculated with reference to the wages drawn by
the claimants.
5. The principal object of Section 12 of the Act is to secure
compensation to workmen who are engaged through a contractor by
the principal employer for the execution of work forming part of the
latter’s ordinary trade or business. The scheme of Section 12 is
intended to safeguard the workman’s right to claim compensation not
only against the immediate employer, whether a contractor or a sub-
contractor, but also against the principal employer.
6. Heard both the counsels at length and examined record.
7. Section 30 of the Act, under which the present appeals have been
preferred, provides that an appeal shall lie to the High Court against
an order of the Commissioner only when the appeal involves a
substantial question of law. The third proviso to Section 30 further
stipulates that no appeal shall lie unless the memorandum of appeal is
accompanied by a certificate issued by the Commissioner to the effect
that the amount awarded has been deposited with him, which is
equivalent to the amount sought to be appealed against. Thus, having
regard to the scheme of Section 30, an appeal is maintainable only
where a substantial question of law is involved. By necessary
implication, where a party is able to demonstrate that a finding
returned by the authority under the Act is perverse, in the sense that it
MA No. 242/2011 a/w
Clubbed matters Page 6 of 15
is either unsupported by or wholly contrary to the material available
on record, this Court would be justified in exercising its appellate
jurisdiction under the said provision. Otherwise, interference with the
findings returned by the Commissioner is minimal.
8. It was argued that there was no employer-employee relationship
between the parties and that the Commissioner has failed to notice this
aspect. In case titled Managing Director, State Forest Corporation,
Shimla, H.P. vs. Mohd. Sikandar it was held as under:
“The question whether there exits any relation of employer-
employee between the parties is not a substantial question of
law rather a question of fact determined by the
Commissioner after considering the evidence of the evidence
of the respondent i.e. respondent himself, Abdul Jabbar and
Abdul Rashid. Reliance is placed upon the decision of
Hon’ble Apex Court in North East Karnataka Road
Transport Corp. Vs. Sujatha, (2019) 11 SCC 514 where
Apex Court has held as under:
At the outset, we may take note of the fact being a
settled principle, that the question as to whether
the employee met with an accident whether the
accident occurred during the course of
employment, whether it arose out of an
employment, how and in what manner the
accident occurred, who was negligent in causing
the accident, whether there existed any
relationship of employee and employer, what was
the age and monthly salary of the employee, how
many are the dependents of the deceased
employee, the extent of disability caused to the
employee due to injuries suffered in the accident,
whether there was any insurance coverage
obtained by the employer to cover the incident,
etc. are some of the material issued which arise
for the just decision of the Commissioner in a
claim petition when an employee suffers any
bodily injury or dies during the course of his
employment and he/his LRs sue(s) his employer
to claim compensation under the Act.
The aforementioned questions are essentially the
questions of fact and, therefore, they are required
to be proved with the aid of evidence. Once theyMA No. 242/2011 a/w
Clubbed matters Page 7 of 15
are proved either way, the findings recorded
thereon are regarded as the findings of fact.
This authority answers the first question raised by the appellant and
being purely question of fact would not by itself constitute a
substantial question of law.
9. In Divisional Manager, J&K SFC v. Bansi Lal (MA No. 781/2010), a
Coordinate Bench of this Court, while considering an appeal of
similar nature, was confronted with a case where the claimant had
suffered 70% permanent disability, but there was no certificate issued
by a qualified medical practitioner regarding the corresponding loss of
earning capacity. The medical expert had neither explained the nature
of the injuries suffered by the claimant nor stated anything regarding
the impact of the disability on his earning capacity. Despite the
absence of such medical evidence, the Commissioner, without
insisting upon a certificate from a qualified medical practitioner or
subjecting the claimant to a medical examination for determining the
impact of the injuries on his earning capacity, proceeded on his own to
determine the loss of earning capacity. The Coordinate Bench, after
examining the legal position and taking note of the amendment
introduced to Section 4 by Act 22 of 1984, which came into force with
effect from 01.07.1984, observed that the words “as assessed by a
qualified medical practitioner” were not part of the original provision
but had been introduced by the aforesaid amendment. While
considering the question of law as to whether the Commissioner
could, on his own, determine the loss of earning capacity without
MA No. 242/2011 a/w
Clubbed matters Page 8 of 15
obtaining an assessment from a qualified medical practitioner, the
Court held as under:
“I am in full agreement with the view taken by the
Single Bench of this Court in the aforesaid case which is
also fortified by the view of Full Bench of Kerala High
Court in Sreedharan’s case (supra) and accordingly
hold that the Commissioner was not competent to assess
the loss of earning capacity of his own without there
being any certificate by a qualified medical practitioner
certifying the loss of earning capacity proportionate to
the percentage of disability suffered by a workman in
the case of non scheduled injury. This answers the
question formulated above.
The reliance put by the learned counsel for the
respondent on the judgment of Hon’ble Supreme Court
rendered in the case of Golla Rajanna vs. The Divisional
Manager, AIR 2016 SC 5382 is misplaced. The aforesaid
judgment has been rendered in peculiar facts and
circumstances and, therefore, distinguishable. The
impact of amendment made in 4(1)(c)(ii) of the Act of
1923 by Act 22 of 1984 and incorporation of bracketed
portion “as assessed by a qualified medical
practitioner” were not subject matter of discussion and
adjudication in the aforementioned case.
In view of the foregoing discussion and the answer given
to the formulated question, this Court is left with no
option, but to set aside the award and remit the matter
to the Commissioner with a direction to take
appropriate steps for determining the loss of earning
capacity of the appellant-workman in accordance with
the mandate contained in Section 4(1)(c)(ii). Ordered
accordingly. The Commissioner shall get the respondent
medically examined by a qualified medical practitioner
or the Board of Doctors for assessment of disability and
the loss of earning capacity. Based upon such certificate,
the Commissioner would proceed to re-determine theMA No. 242/2011 a/w
Clubbed matters Page 9 of 15
amount of compensation payable to the respondent-
workman.”
10. In all the aforesaid petitions, the claimants suffered disabilities which,
according to them, were of a permanent nature. The alleged permanent
disabilities were sought to be proved through the testimony of medical
experts who appeared before the authority below.
11. It was argued that, in terms of Section 4(1) (c) of the Act, it was
incumbent upon the medical experts to adduce evidence
demonstrating the extent to which the permanent disablement affected
the earning capacity of each claimant. According to the appellant, the
failure to produce such evidence resulted in the authority below
placing reliance solely on the oral testimony of the medical experts
without determining the actual diminution in the earning capacity of
the claimants.
12. In AIR 2011 SC 1785, the Supreme Court, while considering the
principles governing the assessment of compensation under beneficial
legislation, held that the authority or Tribunal must ascertain the effect
of permanent disability on the earning capacity of the injured person.
In doing so, the Court relied upon the principles laid down in Raj
Kumar v. Ajay Kumar & Another, (2011) 1 SCC 343, and observed
that the assessment must determine the extent to which the permanent
disability has affected the claimant’s earning capacity. Such an
assessment cannot be made mechanically; rather, it must be
undertaken having due regard to the various parameters laid down in
MA No. 242/2011 a/w
Clubbed matters Page 10 of 15
the said judgment. The Apex Court enunciated the following
propositions:
“Ascertainment of the effect of the permanent
disability on the actual earning capacity involves
three steps. The Tribunal has to first ascertain what
activities the claimant could carry on in spite of the
permanent disability and what he could not do as a
result of the permanent ability (this is also relevant
for awarding compensation under the head of loss
of amenities of life). The second step is to ascertain
his avocation, profession and nature of work before
the accident, as also his age. The third step is to find
out whether (i) the claimant is totally disabled from
earning any kind of livelihood, or (ii) whether in
spite of the permanent disability, the claimant could
still effectively carry on the activities and functions,
which he was earlier carrying on, or (iii) whether he
was prevented or restricted from discharging his
previous activities and functions, but could carry on
some other or lesser scale of activities and functions
so that he continues to earn or can continue to earn
his livelihood.
For example, if the left hand of a claimant is
amputated, the permanent physical or functional
disablement may be assessed around 60%. If the
claimant was a driver or a carpenter, the actual loss
of earning capacity may virtually be hundred
percent, if he is neither able to drive or do
carpentry. On the other hand, if the claimant was a
clerk in government service, the loss of his left hand
may not result in loss of employment and he may
still be continued as a clerk as he could perform his
clerical functions; and in that event the loss of
earning capacity will not be 100% as in the case of a
driver or carpenter, nor 60% which is the actual
physical disability, but far less. In fact, there mayMA No. 242/2011 a/w
Clubbed matters Page 11 of 15
not be any need to award any compensation under
the head of “loss of future earnings”, if the claimant
continues in government service, though he may be
awarded compensation under the head of loss of
amenities as a consequence of losing his hand.
Sometimes the injured claimant may be continued
in service, but may not be found suitable for
discharging the duties attached to the post or job
which he was earlier holding, on account of his
disability, and may therefore be shifted to some
other suitable but lesser post with lesser
emoluments, in which case there should be a limited
award under the head of loss of future earning
capacity, taking note of the reduced earning
capacity”.
13. Thus, depending upon the nature and extent of the disability suffered
by the claimant, its impact on the claimant’s earning capacity and
livelihood is required to be examined. The authority must determine
whether the disability affects the claimant’s day-to-day functioning,
vocation, and the nature of work that he was previously engaged in,
and whether he would be capable of continuing the same or any
similar employment. If the disability restricts his movements or
functional abilities to such an extent that it adversely affects his
capacity to earn, the same must be duly assessed. In Bansi Lal‘s case
(supra), this Court examined the powers of the Commissioner in this
regard and held that the Commissioner is not empowered to assess the
loss of earning capacity on his own in the absence of a certificate
issued by a qualified medical practitioner certifying the percentage of
loss of earning capacity corresponding to the disability suffered by the
workman.
MA No. 242/2011 a/w
Clubbed matters Page 12 of 15
14. In the present batch of appeals, Sher Singh in MA No. 242/2021 is
stated to have suffered 20% permanent disability; Abdul Aziz Malik
in MA No. 453/2011, 30% permanent disability; Mr. Jia Lal in MA
No. 609/2014, 60% permanent disability; Mr. Fareed Ahmed in MA
No. 74/2015, 50% permanent disability; and Mr. Farooq Ahmed in
MA No. 75/2015, 35-40% permanent disability. This Court has
carefully examined the record of the Commissioner and finds that
there is not even an iota of material to establish that any of the
claimants possessed a disability certificate issued by a competent
Medical Board.
15. Learned counsel for the respondents submitted that the claims arise
out of incidents that occurred in the year 1999, and at the relevant
time, compensation claims were commonly determined on the basis of
medical certificates issued by qualified medical practitioners rather
than certificates issued by a Medical Board. Even if that submission is
accepted, in view of the law laid down by the Hon’ble Supreme Court,
compensation cannot be assessed mechanically. The medical expert is
required to adduce evidence indicating the extent to which the
permanent disability has resulted in loss of earning capacity of the
claimant. In the present case, the evidence has not been appreciated
from the aforesaid perspective. The authority under the Act proceeded
solely on the face value of the testimony of the medical experts
without examining the claimants’ cases in the light of the principles
governing assessment of loss of earning capacity and functional
disability.
MA No. 242/2011 a/w
Clubbed matters Page 13 of 15
16. Apart from assessing the loss of earning capacity, the issue of
functional disability was also required to be considered by the
Commissioner. However, it appears that no such exercise was
undertaken. Learned counsel for the respondents argued that all the
claimants were labourers engaged in Chiran (wood-cutting) work by
the appellants, so, having regard to the beneficial nature of the
legislation and the considerable lapse of time since the time of the
incidents, it would not be appropriate to remand the matters and that
this Court should determine the claim petitions on the basis of the
material already available on record.
17. Though the submission carries some persuasive force, this Court is
unable to accept the same. In the absence of any evidence from the
medical experts laying the necessary foundation for assessing the loss
of earning capacity and the extent of functional disability suffered by
the claimants, the mere existence of a specified percentage of
permanent disability cannot, by itself, form the basis for determining
the quantum of compensation. Consequently, the matters deserve to be
remanded to the Commissioner, who shall have the claimants
medically examined by a qualified medical practitioner or a duly
constituted Medical Board for assessment of the nature and extent of
disability as well as the corresponding loss of earning capacity. Upon
receipt of such medical opinion, the Commissioner shall be at liberty
to re-determine the compensation payable to each claimant in
accordance with law.
MA No. 242/2011 a/w
Clubbed matters Page 14 of 15
18. Accordingly, the view laid down by this Court in Bansi Lal‘s case
(supra) is reaffirmed and these appeals deserve to be allowed. The
awards passed by the Commissioner in all these appeals are, therefore,
set aside, and the matters are remitted to the Commissioner with a
direction to undertake a fresh determination of the claim petitions after
assessing the loss of earning capacity of the claimant-workmen in
accordance with law and the principles enumerated hereinabove. In
order to ensure that the claimants are not subjected to any further
hardship on account of the prolonged pendency of the proceedings, it
is directed that 50% of the compensation amount awarded and
deposited before the Commissioner shall stand released in favour of
the respective claimants, subject to due verification and identification.
The remaining 50% of the awarded amount, together with the interest
accrued thereon, shall be kept in an interest-bearing fixed deposit and
shall abide by the final outcome of the proceedings before the
Commissioner. The amount already released to the claimants, shall be
duly adjusted while re-determining the final compensation payable in
accordance with law.
(Sanjay Parihar)
Judge
JAMMU
23.07.2026
Manik
Whether this order is speaking: Yes
Whether this order is reportable: Yes
MA No. 242/2011 a/w
Clubbed matters Page 15 of 15
