Rajasthan High Court - Jodhpur
Jawari Lal vs Smt.Tara Devi And Anr on 14 November, 2019
Equivalent citations: AIRONLINE 2019 RAJ 1285
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 311/2009
Jawari Lal
----Appellant
Versus
Smt.tara Devi And Anr.
----Respondent
For Appellant(s) : Mr. N.K. Dadhich
For Respondent(s) : Mr. Sanjeev Johari with
Mr. Subhankar Johari
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 14/11/2019
1. This appeal under Section 30 of the Workmen's Compensation Act, 1923 has been filed for the following relief :-
"It is, therefore, prayed that the appeal of the appellant may kindly be accepted with cost and the award passed by the Workmen's Compensation Commissioner be modified as per Section 4A(3) & (b) of the Workmen's Compensation Act, 1923 and the amount of compensation, penalty and interest be awarded/increased as prayed in the original application/claim petition."
2. Counsel for the appellant made a limited submission that the disability has been taken to be 50%, whereas the injured/claimant was a driver and his leg has been amputated below knee, therefore, is entitled for enhancement of compensation. Counsel for the appellant has drawn attention of this Court towards Exhibit-2, which is a certificate issued by Medical & Health Services, Government of Rajasthan, Associated Group of Hospitals, MGH Hospital, Jodhpur, reflecting that the appellant's leg was amputated below knee and its a case where (Downloaded on 05/06/2021 at 04:53:16 PM) (2 of 5) [CMA-311/2009] the appellant is entitled for re-computation of award with 100% disability, as he was admittedly discharging duty of driver on vehicle No.RJ-19-IG-0068 and due to mechanical fault the vehicle over-turned.
3. Counsel for the appellant relied upon the judgment of The New India Assurance Co. Ltd. Vs. Chand Mohd. & Anr. (S.B. Civil Misc. Appeal No.753/2006), relevant portion whereof reads as under:
"7. Heard learned counsel for the parties and the learned advocates assisting on the controversy in issue on the request of this Court and perused the precedent law cited at the Bar.
Section 4 of the WC Act exhaustively deals with the compensation on account of death in Sub-Section 1(a), compensation on account of permanent total disablement in Sub- Section 1(b) and compensation on account of permanent partial disablement in Sub-Section 1(c) and compensation on account of temporary disablement in Sub-Section 1(d). This Court takes note of the definition of partial disablement in Section 2(g) and total disablement in Section 2(l), which read as follows :-
(g) " partial disablement" means, where the disablement is of a temporary nature, such disablement as reduces the earning capacity of a workman in any employment in which he was engaged at the time of the accident resulting in the disablement, and, where the disablement is of a permanent nature, such disablement as reduces his earning capacity in every employment which he was capable of undertaking at that time:
provided that every injury specified in Part II of Schedule I shall be deemed to result in permanent partial disablement;
(l) total disablement means 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:
Provided that permanent total disablement shall be deemed to result from every injury specified in Part I of Schedule I or from any combination of injuries specified in Part II thereof where the aggregate percentage of the loss of earning capacity, as specified in the said Part II against those injuries, amounts to one hundred per cent. or more;"
This Court also takes note of the fact that where permanent partial disablement is resulting from the injury specified in Part- II of Schedule-I, the compensation has to be taken as payable in (Downloaded on 05/06/2021 at 04:53:16 PM) (3 of 5) [CMA-311/2009] the case of permanent total disablement reflecting the percentage of loss of earning capacity. This includes Part-I and Part-II.
Further the injuries which are not mentioned in Schedule-I can of course be taken care of by assessing the loss of earning capacity as per the certificate issued by the qualified medical practitioner.
The WC Act lays down an elaborate procedure for both the parties to lead evidence and the procedure is prescribed under Section 23 of the Act including securing of attendance of witnesses, compelling for production of documents and material objects, as per the Code of Civil Procedure.
Thus, where an exhaustive outcome has been arrived for computation of compensation under the WC Act while adhering to the provisions of Section 4, no further adjudication or application of mind is required by the Commissioner or Court but in a case where it has been pleaded by the claimant workman that his injuries are such extraordinary as it would render reduction in his earning capacity beyond the specified limits of Schedule-I and Section 4, then it shall be open for the claimant workman to adopt the procedure under Section 23 of the Act and drive home the point as to what was the extraordinary loss caused to him by the injury in question. This shall include the comparison of the injury with loss of earning capacity and the commensurating impact of the injury upon the nature of work being carried out by the claimant in question.
If the Commissioner after considering all evidence from both the sides has arrived at the factual matrix which clearly indicate that the injury in question is directly causing complete loss or a degree of loss in the current employment then the same has to be considered while granting compensation.
The best examples of co-relation between the employment and injury could be amputated leg and driver's job, amputated hand and tailor's and plumber's job etc. The precedent law cited by the learned counsel for the respondents/claimants including Pratap Narain Singh (4 Judge Bench Judgment of Hon'ble Apex Court) (supra), K. Janardan (supra), Lal Singh Rajput (supra), Chandi Dan Charan (supra), Bajaj Allianz General Insurance Company (supra), Iffco Tokio General Insurance Co. (supra) and North East Karnataka Road Transport Corporation (supra) are directly holding the field and the only judgment which gave strength to the submissions of the learned counsel appearing on behalf of the insurance companies namely, Oriental Insurance Company Limited vs. Mohd. Nasir and another (supra) has been held to be per incuriam by the Hon'ble Supreme Court in North East Karnataka Road Transport Corporation (supra).(Downloaded on 05/06/2021 at 04:53:16 PM)
(4 of 5) [CMA-311/2009] Thus, the substantial question is decided against the insurance company.
8. Now coming to the case at hand. The amputation of leg below knee of the claimant/respondent no.1 Chand Mohd. who was working as driver is undisputed. The learned authority below computed the loss of income while taking into consideration 100% disability. In light of what has been held above, the judgment and award passed by the learned authority below is well justified and does not call for any interference.
9. Resultantly, the present appeal, being devoid of any merit, is hereby dismissed.
10. All pending applications also stand disposed of."
4. After hearing counsel for the parties and perusing record of the case, this Court is of the opinion that the permanent disability ought to be taken as 100% instead of 50%. Thus, the computation of award should be done while taking the permanent disability as 100%. The interest on the total award amount is to be calculated from the date of accident i.e. 28/08/2001 and not from the date of filing of claim petition i.e. 26/03/2003.
5. Upon the direction of this Court, a joint re-computation has been furnished by counsel for the parties while taking permanent disability as 100% and interest @ 12% per annum from the date of accident i.e. 28/08/2001, which reads as follows :-
Age of injured 22 Yrs Factor to be applied for age of 22 years 221.37 Permanent disability to be considered 100% Income 2000 per month Computation of claim 265644 ( 2000 x 60 x 221.37 ) 100 Amount awarded by Workmen's 132822 Compensation Commissioner Enhanced Award 132822 ( 265644 - 132822 ) Interest to be paid [ From the date of accident i.e. 28/08/2001 to the date of judgment i.e. 14.11.2019 (total 18 years and 2 1/2 (Downloaded on 05/06/2021 at 04:53:16 PM) (5 of 5) [CMA-311/2009] months ) @ 12% per annum on the enhanced amount of Rs.132822/- ] + [ from the date of accident i.e. 28/08/2001 to the date of filing of the claim petition i.e. 26/3/2003 (total 19 months ) @ 12% per annum on the award already awarded by the Workmen's Compensation Commissioner i.e. Rs.132822/- ] Calculation of total interest 132822 x 12 x 18 + 132822 x 12 x 2.5 100 100 x 12 + 132822 x 12 x 19 100 x 12 = 286896 + 3321 + 25236 = Rs. 315453/-
Total interest Rs. 315453/-
Computation of total award Enhanced award + Total interest
( 132822 + 315453 )
Total award Rs.4,48,275/-
6. Accordingly, the appeal is allowed. The respondent
No.2 Insurance Company is directed to pay total award amount of Rs.4,48,275/- within three months from today. However, in case of default in payment of total award amount of Rs.4,48,275/-, the same shall carry further penal interest @ 12% per annum till the actual payment is made.
(DR. PUSHPENDRA SINGH BHATI),J 55-Sanjay/-
(Downloaded on 05/06/2021 at 04:53:16 PM) Powered by TCPDF (www.tcpdf.org)