Madras High Court
The Oriental Insurance Company Limited vs R.Mahalingam R1 In Cma.2552/03 & on 30 August, 2012
Author: Aruna Jagadeesan
Bench: Aruna Jagadeesan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30.08.2012
CORAM:
THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN
CMA.Nos.2552 and 3087/2003
The Oriental Insurance Company Limited
Chennai-108 Appellant in CMA.2552/03 &
R2 in CMA.3087/03
Vs
1.R.Mahalingam R1 in CMA.2552/03 &
Appellant in CMA.3087/03
2.Ramani R2 in CMA.2552/03 &
R1 in CMA.3087/03
Prayer:- These Civil Miscellaneous Appeals are filed against the order dated 30.5.2003 made in WC.No.35/2002 by the Labour Deputy Commissioner-II for Workmen's Compensation, Chennai-6.
For Appellant : Mr.R.Sivakumar-CMA.2552/03
For Respondent : Mr.U.M.Ravichandran-R1-CMA.2552/03
JUDGEMENT
These Civil Miscellaneous Appeals are filed against the order dated 30.5.2003 made in WC.No.35/2002 by the Labour Deputy Commissioner-II for Workmen's Compensation, Chennai-6 by the Insurance Company and the claimant respectively.
2. The claimant, who is the Appellant in CMA.No.3087/2003, filed the above said claim petition, claiming a compensation of Rs.5 lakhs for the injuries sustained by him on 22.5.2001 at about 5.15 a.m., while he was driving the lorry bearing Reg.No.KA-01-A-3346 owned by the 1st Respondent in CMA.No.3087/2003 and insured with the Appellant Insurance Company. After conducting enquiry, with due notice to the opposite parties therein, the Labour Deputy Commissioner awarded a sum of Rs.2,99,491/- and directed the Insurance Company to deposit the award amount within a period of 30 days, in default, the amount would carry interest at 12 per cent p.a. from the date of the claim petition till the date of deposit.
3. The impugned award is assailed by the Appellant Insurance Company on the ground that the monthly wages taken by the Labour Deputy Commissioner at Rs.4000/- is erroneous and the loss of earning capacity fixed at 60 per cent by the Labour Deputy Commissioner is also not proper.
4. On the other hand, the claimant challenged the impugned award on the ground that the Labour Deputy Commissioner ought to have taken the total disablement as 100 per cent, as the physical disablement suffered by the claimant totally incapacitated him from doing any work, which he was capable of performing before the accident. It was further contended that the Labour Deputy Commissioner ought to have awarded interest at the rate of 12 per cent from the date of the accident under Section 4(A)(3) of the Workmen's Compensation Act without imposing any condition.
5. The Labour Deputy Commissioner has fixed the monthly income of the claimant at Rs.4000/- and taking into account the disability assessed by the Doctor at 60 per cent computed compensation at Rs.2,99,491/-, which is under challenge by both the Insurance Company and the claimant.
6. Mr.R.Sivakumar, the learned counsel for the Appellant Insurance Company has submitted that the impugned award passed by the Labour Deputy Commissioner is not correct and deserved to be set aside. It is submitted that the income of the claimant at the relevant point of time ought to have been fixed at Rs.2849/-, which is the minimum wages and that in the absence of definite evidence, the minimum wages ought to have been taken in to account while computing the compensation and the Labour Deputy Commissioner erred in fixing the monthly income at Rs.4000/- p.m. without any basis.
7. The learned counsel for the Appellant Insurance Company would submit that the Labour Deputy Commissioner erred in not assessing the functional disability before determining the loss of future earning capacity. He would submit that the court should ascertain the actual extent of permanent disability of the claimant based on the medical evidence and then, determine whether such permanent disability has affected his earning capacity and if so to what extent and then adopt such percentage for determination of compensation. In support of his contention, the learned counsel relied on the decision reported in 2011-ACJ-1 (Raj Kumar vs. Ajay Kumar and another).
8. Mr.U.M.Ravichandran, the learned counsel for the Appellant/claimant contended that the Labour Deputy Commissioner committed an error in not taking into consideration the permanent disability as 100 per cent. It is submitted that the claimant is not in a position to discharge his duty as a driver, as he sustained fracture of femur, due to which there was malunion of fractured bones and there is shortening of leg by 1 =" and wasting fibrus left thigh muscles and hip flexion to an extent of 80 degree, abduction to an extent of 30 degree and left knee flexion to an extent of 60 degree as against normal 140 degree. He is able to walk only with a walking stick and he is also limping. He would further submit that on account of the head injury sustained by him, he suffered post traumatic headache, giddiness and vertigo frequently. The learned counsel would point out that PW.2 Dr.JRR.Thiagarajan has assessed his disability at 60 per cent and that though the Doctor has assessed his disability at 60 per cent, the disablement was total, since he was not capable of discharging his duties as a driver which he was discharging prior to the accident and he was not even able to walk without crutches. The learned counsel pointed out that the Labour Deputy Commissioner has remarked even in the award that the claimant would walk only with a help of crutches. It is submitted that the Labour Deputy Commissioner ought to have taken into consideration the permanent disability as 100 per cent for the purpose awarding compensation and that there is uncontroverted evidence to the effect that the claimant was getting Rs.225/- per day as wages and therefore, the income fixed by the Labour Deputy Commissioner at Rs.4000/- need not be interfered with.
9. Mr.U.M.Ravichandran, the learned counsel for the Appellant/Claimant submitted that the daily wages of the claimant was Rs.225/- per day and he was getting an income of Rs.6750/- p.m. It is submitted that for awarding compensation, the Labour Deputy Commissioner has taken into consideration Rs.4000/- p.m. and 60 per cent of the salary was taken as Rs.2400/- and out of that 60 per cent was taken as permanent disability. Since the age of the Appellant was 30 years, after applying the factor of 207.98, the Labour Deputy Commissioner has assessed the compensation at Rs.2,99,491/-. The learned counsel submitted that the Labour Deputy Commissioner committed an error in not taking into consideration the permanent disability as 100 per cent.
10. In so far as the maintainability of the appeal filed by the Insurance Company is concerned, it is contended that while preferring the appeal, the Appellant/Insurance Company has deposited only the principal amount of compensation and thus, it has not complied with the requirement of the third proviso to Section 30(1) of the Act. The learned counsel pointed out that the deposit has been made beyond one month and further no certificate has been appended along with the memo of grounds showing that whether the amount as required under Section 30(1) of the Act has been complied with.
11. This court heard the submissions made by the parties and perused the relevant records.
12. The contention of the learned counsel for the claimant is that the appeal filed by the Insurance Company deserves to be dismissed as not maintainable for want of compliance to third proviso to sub section (1) of Section 30 of the Workmen's Compensation Act, 1923.
13. For the sake convenience, the relevant clause of Section 30 of the Act and in particular, the third proviso are extracted here under:-
"30. Appeals:- (1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely;
(a) an order awarding as compensation a lump sum whether by way of redemption of a half monthly payment or otherwise or disallowing a claim in full or in part for a lump sum;
(aa) an order awarding interest or penalty under Section 4A;
(b) an order refusing to allow redemption of a half monthly payment;
(c) an order providing for the distribution of compensation among the dependants of a deceased workman, or disallowing any claim of a person alleging himself to be such dependant;
(d) an order allowing or disallowing any claim for the amount of an indemnity under the provisions of sub-section (2) of Section 12; or
(e) an order refusing to register a memorandum of agreement or registering the same or providing for the registration of the same subject to conditions;
Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal and, in the case of an order other than an order such as is referred to in Clause (b) unless the amount in dispute in the appeal is not less than three hundred rupees:
Provided further that no appeal shall lie in any case in which the parties have agreed to abide by the decision of the Commissioner, or in which the order of the Commissioner gives effect to an agreement come to by the parties:
Provided further that no appeal by an employer under Cl.(a) shall lie unless the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the Appellant has deposited with him the amount payable under the order appealed against.
(2) The period of limitation for an appeal under this Section shall be sixty days.
(3) The provisions of Section 5 of the Limitation Act, 1963 (36 of 1963) shall be applicable to appeals under this section."
14. As has been stated herein above, Section 30 provides for an appeal against certain categories of orders passed by the Labour Commissioner. Sub clause (a) of sub-section (1) deals with an appeal against an order awarding a lump sum compensation either in the case of death or injury. The third proviso under Section 30 stipulates that no appeal by an employer under clause (a) shall lie, unless the memorandum of appeal is accompanied by a certificate issued by the Commissioner to the effect that the Appellant has deposited with him the amount payable under the order appealed against.
15. Section 4A mandates that compensation under Section 4 shall be paid as soon as it falls due and if the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the extent of liability which he accepts by depositing the same before the Commissioner. The fact that the employer is liable to pay interest from the date of the accident is beyond any controversy, in view of the decision of the Constitution Bench of the Honourable Supreme Court reported in 1976-1-LLJ-235 (Pratab Narain Singh Deo Vs. Srinivas Sabata and another).
16. While claim for compensation arises under Section 4 of the Act, award of interest is postulated under Section 4(a) of the Act. The learned counsel for the Insurance Company contended that the claim of interest stands entirely on a different footing as compared to the claim for compensation that arises under Section 4 and therefore, the Appellant is not bound to deposit interest and cost along with the amount of compensation awarded by the Commissioner while preferring the appeal. The learned counsel for the Appellant/ Insurance Company relied on the decision reported in 1994-ACJ-1007 (Oriental Insurance Company Limited Vs. Dharma Gowda aias Dharma), wherein a learned single Judge of the Karnataka High Court took a view that the deposit, made before the appellate court at the time of presentation of appeal and before the appeal came up for consideration, can be treated as substantial compliance with the requirement of Section 30(1), third proviso and the appeal is maintainable.
17. In Ramakant Rout @ Rautrav Vs. Profulla Kumar Das and another (1993-ACJ-496) , a learned single Judge of the Orissa High Court has held that an award imposing penalty under Section 4A as provided under Section 30(1)(aa) requires no certificate to be furnished. The learned Judge further held that where the award is composite being one under Section 30(1)(a) and Section 30(1)(aa) of the Act, no certificate is necessary, if the Appellant aggrieved confines his challenge only to the imposition of penalty. If however, the entire award is assailed, a certificate of deposit relating to the amount falling under Section 30(1)(a) of the Act would be required.
18. In 2011-2-TNMAC-48 (New India Assurance Co. Limited Vs. Biju) a Division Bench of the Kerala High Court held referring to various decisions on this aspect that interest is an integral and inseparable part of compensation and in view of express language used in third proviso, amount payable under order appealed will include interest also. The Division Bench has referred to the decision of the Honourable Supreme Court reported in 2002-9-SCC-450 (L.R.Ferro Alloys Limited Vs. Mahavir Mahato) wherein the Honourable Supreme Court has reiterated the earlier view taken in Vel Prakash Garg Vs. Premi Devi and others (1997-8-SCC-1-) that the interest and penalty are two distinct liabilities arising under the Act and that the liability to pay interest is part and parcel of legal liability to pay compensation upon default of payment within one month.
19. In the present case, the award has been passed on 30.5.2003. Admittedly, the principal amount of Rs.2,99,491/- has been deposited by way of cheque dated 13.8.2003 bearing No.094174 drawn on State Bank of Travancore with a covering note dated 18.8.2003 which is acknowledged by the Labour Deputy Commissioner on 20.8.2003. Even according to the Insurance Company, they have received the order on 18.7.2003 and they ought to have deposited within a period of 30 days i.e. on 18.8.2003. It is not in dispute that only principal amount of Rs.2,99,491/- alone has been deposited by way of cheque and the said cover containing the cheque had been received only on 20.8.2003 as could be noticed from the endorsement found on the cover. That apart, the appeal is not accompanied by a certificate by the Commissioner to the effect that the Appellant/ Insurance Company has deposited with him the amount payable under the order appealed against. Therefore, the Appellant has failed to deposit the interest that has been ordered by the Commissioner. I am in entire agreement with the view taken by the Division Bench of the Kerala High Court in 2011-2-TNMAC-48 (New India Assurance Co. Limited Vs. Biju) and 2008-ACJ-235 (V.K.Raghavan Vs. Commissioner for Workmen's Compensation) that the words 'amount payable under the order appealed against' in the third proviso will include not only the principal amount of compensation, but also interest as well.
20. Now the question is as to whether the deposit of cheque is sufficient compliance to third proviso referred to above. My opinion is that it is not sufficient compliance. I gain strength to my view from the decision rendered in J&K SFC Vs.. Ghulam Mohd. (1993-ACJ-736-J&K) wherein it has been held thus:-
"It has been laid down that a cheque, bank draft, cash in deposit or any other kind of security is no substitute for the deposit of the amount with the Commissioner under the Act and the memo of appeal accompanied by a certificate of the Commissioner to that effect. The court held that allowing any mode of deposit of award money other than one laid down under Section 30(1) third proviso would amount to rewriting law."
21. Appeal in hand is not accompanied by the requisite certificate and therefore, instead of certificate, a letter addressed to the Commissioner enclosing a cheque accompanying the memorandum of appeal cannot be termed to be the compliance to the requirement of third proviso to Section 30(1) of the Act, 1923. The Insurance Company/appellant having not deposited the interest accrued on its failure to deposit the amount within 30 days from the date of receipt of order and as the memorandum of appeal is not accompanied by a certificate by the Commissioner to the effect that the Appellant Insurance Company has deposited with him the amount payable under the order appealed against is not sufficient compliance of the requirement of third proviso to Section 30(1) of the Act, 1923 and as such I hold that the appeal filed by the Insurance Company is not maintainable.
22. In this case, it is urged by the learned counsel for the Appellant/claimant that though the physical disability resulting in earning capacity is 60 per cent, but the claimant became unfit to drive any vehicle and the disability has to be considered as 100 per cent for computing compensation. In this context, it may be noticed that there is no dispute about the fact that the injuries sustained by the claimant resulted in shortening of left leg to an extent of 1 = " and nail fixed is still in the fractured site. The femur bone is malunited and there is knee flexion of 60 degree, abduction 30 degree, hip flexion 80 degree and thus movements are restricted with stiffness. The Doctor has noted that the claimant was limping and walks with the help of a stick. He also suffered from post traumatic headache, giddiness and vertigo frequently. PW.2's Doctor's evidence clearly indicated that the disability suffered by him will disable him to work as a driver, as the shortening of leg by 1 = " with muscle weakness is as good as non functional and as a driver the loss of earning capacity of the Appellant is 100 per cent as he is not fit to work as a driver as he cannot walk without the aid of crutches and would have permanent limp.
23. Where a person is employed by the employer to do a particular item of work, he must be held to be having the capability of performing such work and the burden is on the person who asserts otherwise to establish that the claimant was having the capability of performing any other work. There is no such evidence in this case.
24. Section 2(1)(l) of the Workmen Compensation Act defines 'total disablement" as such disablement, whether temporary or permanent nature as incapacitates a workman for all work which he was capable of performing at the time of accident resulting in such disablement. Therefore, even if a workman suffers physical disablement to a lesser extent say 20 per cent, 40 per cent, 50 per cent, etc.; if such physical disablement itself totally incapacitates the workman from doing any work which he was capable of performing before the accident, it can be treated as total disablement.
25. The learned counsel for the Appellant/claimant drew the attention of this court to the decision of the Four Judges Bench of the Honourable Supreme Court in Pratab Narain Singh Deo Vs. Shrinivas Sabata (1976-ACJ-141-s) which arose on the claim of compensation by a carpenter whose one arm was amputated. The Honourable Supreme Court was called upon to decide whether the injury, undoubtedly a scheduled injury to Part II, has resulted in total disablement as defined under Section 2(1)(l) of the Workmen Compensation Act to compute the compensation. The Honourable Supreme Court undoubtedly answered the question affirmatively and held that the workman had suffered total disablement.
26. A recent decision of the Honourable Supreme Court in K.Janardhan Vs. United India Insurance Company Limited (2008-ACJ-2039-SC), the Honourable Supreme Court was again called upon to consider this very question. That was a case where an employee, a driver, had suffered injuries which resulted in amputation of right leg upto knee joint. The Honourable Supreme Court took note of the fact that the claimant could not do the work of a driver. The Honourable Supreme Court extracted paragraph 5 of the Pratab Narain Singh Deo 's case (1976-ACJ-141-SC) and proceeded to observe as follows:-
"4. Applying the ratio of the cited judgement to the facts of the present case we are of the opinion that the Appellant herein has also suffered a 100% disability and incapacity in earning his keep as a tanker driver as his right leg had been amputated from the knee. Additionally, a perusal of Sections 8 and 9 of the Motor Vehicles Act, 1988 would show that the Appellant would now be disqualified from even getting a driving licence."
27. It is to be noted that the Honourable Supreme Court in K.Janardhan's case (2008-ACJ-2039-SC) has conveyed an indication as to how the decision in Pratab Narain Sing Deo's case has to be understood and how the ratio has to be applied.
28. In another recent decision of the Honourable Supreme Court in the case of S.Suresh Vs. Oriental Insurance Company Limited and another (2010-ACJ-487) where the driver of truck suffered amputation of right leg just below knee and the Doctor stated that the workman suffered 93 per cent permanent disability in his right leg and he will not be able to do the job of driver or any other job, because he will not be able to stand or walk without support, the Commissioner found that workman suffered a loss of 100 per cent of his earning capacity, but the High Court held that injury being specified in Schedule I, medical opinion could not be relied and applying the percentage of loss of earning capacity, reduced compensation by 50 per cent. The Honourable Supreme Court disagreed with the High Court and held that the claimant was rendered unfit for work of a driver which he was performing at the time of the accident and therefore, lost 100 per cent of his earning capacity, more so, when he is disqualified from even getting a driving license under the Motor Vehicles Act and restored the award passed by the Commissioner.
29. It follows from the decisions cited supra that the mere fact that an injury is included in Part II of Schedule I of the Workmen Compensation Act does not and cannot ipso facto lead a functionary under the Workmen Compensation Act to the conclusion that no total disablement has resulted at all. In each case, the question will have to be considered whether the disablement has incapacitated the person to perform all work which he was capable of performing at the time of the accident. We have to see whether he had capability, experience, expertise and competence for performance of such other work also. Merely because a person may be able to and can possibly perform certain other works, it would be irrational to assume that a driver, who has been disabled to do driving, can perhaps work as a shop keeper or to do some other work (for which he has no competence or experience).
30. Mr.R.Sivakumar, the learned counsel for the Appellant/ Insurance Company contended that in the decision cited supra, the injuries were scheduled injuries, keeping in view the total loss of earning capacity, higher compensation was granted by the Honourable Supreme Court as well as this court.
31. In this regard, a reference may be made to Section 2(1)(g) of the Act which defines 'partial disablement'. The Act contemplates two types of disablements. One is partial disablement of a temporary nature and the other is partial disablement of a permanent nature. Section 2(1)(1) of the Act defines 'total disablement' to mean such disablement whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement. The definition given for total disablement as indicated above did not speak of capacity to work, but incapacity to work. The preposition 'for' appearing in the phrase 'incapacitates a workman for all work' appearing in clause (l) makes it manifest that the incapacity to which that clause refers is not physical incapacity, but incapacity to secure employment produced by the injury which caused the disablement. If there be such incapacity to serve employment, whatever may be physical ability to perform work involved n such employment and if there be no one who in the usual course of events would be willing to offer him such employment, there would remain in the workman no longer that modicum of the earning capacity on the existence of which alone could it be said that the incapacity was not complete. Therefore, the question whether there is partial or total disablement is dependent essentially upon the consequences of the injury and not upon whether the injury is one specified in the Schedule I. In both the types of injury scheduled and non scheduled, the basic criteria for determination of amount of compensation is the same i.e. the loss of earning capacity.
32. At this juncture, it is relevant to refer to the decision of the Honourable Supreme Court reported in 1976-ACJ-141 cited supra that the compensation is to be determined with loss of earning capacity and not loss of physical capacity and the said earning capacity is to be examined with reference to the nature of job the workman was doing at the time of the accident.
33. In the backdrop of the decision of the Honourable Supreme Court in Pratap Narain Singh Deo's case and several other decisions, it has to be held that when a particular limb or member has become unfit for use to the nature of job or employment or work in which he was engaged at the time of the accident, then he would be totally incapacitated to do the work. It is not the case of the employer or any of the Respondents that the claimant was given alternative employment and therefore, there was no total loss of earning capacity.
34. In the present case, the nature of the injuries and the physical condition of the claimant as evident from the materials on record clearly indicate that the claimant's left leg has become totally unfit for use for driving a vehicle. The Doctor though has assessed the disability of the claimant at 60 per cent but his statement in his evidence and the certificate issued by him show that loss of earning capacity is total and permanent. As the owner and the insured before the Commissioner had not adduced any evidence to the effect that the claimant had been employed by the employer in an alternative employment, it would lead to an irresistible conclusion that the loss of earning capacity is 100 per cent.
35. In so far as the monthly income determined by the Labour Deputy Commissioner is concerned, I am not able to countenance the submission of the learned counsel for the Insurance Company. The assertion made by the claimant is that he was employed under the employer and was getting Rs.225/- per day as daily wages. Before making a claim before the Commissioner, the claimant has given notice to the employer as well as to the Insurer stating that a daily wages of Rs.225/- per day was given to him. This was not disputed either by the employer or by the Insurer. The Insurer did not make any efforts to adduce evidence to disprove the allegation of the claimant that the claimant was in the employment of the employer Ramani. The initial burden has been discharged by the claimant and in rebuttal the Insurance Company ought to have let in evidence. It was not done. There has not been a suggestion to the effect that the claimant was not employed under the insured and was not drawing the salary as alleged by the claimant. Therefore, in the absence of any rebuttal evidence, the benefit must go on probabilities to the claimant and his evidence should be accepted.
36. In the light of the discussions made above, the claimant is entitled to the compensation on the basis he suffered 100 per cent disability and the wages as computed by the Labour Deputy Commissioner at Rs.4000/- p.m. remain unaltered.
37. As per Section 4(1)(b) of the Act, in case of permanent total disablement, award equal to 60 per cent of the monthly wages of the injured workman multiplied by the relevant factor i.e. 207.98 as per Schedule I has to be paid to the workman. Hence, the total compensation which the Appellant/ claimant is entitled comes to Rs.4,99,152/- (207.98x4000x60/100).
38. For the reasons stated above, CMA.No.2552/2003 filed by the Insurance Company is dismissed and CMA.No.3087/2003 filed by the claimant is allowed. The Appellant/ claimant is entitled to a sum of Rs.4,99,152/- as total compensation. It is held that the Appellant Insurance Company would be liable to pay interest on compensation of Rs.4,99,152/- as contemplated under Section 4(A)(3)(a) of the Act on completion of one month from the date of the accident. No costs.
30.08.2012 Index:Yes/No Web:Yes/No Srcm ARUNA JAGADEESAN, J.
Srcm To:
1.The Labour Deputy Commissioner-II for Workmen's Compensation, Chennai-6
2.The Record Keeper, VR Section, High Court, Madras CMA.Nos.2552 and 3087/2003 30.08.2012