Andhra HC (Pre-Telangana)
New India Assurance Co. Ltd. vs T. Narasimha Murthy Raju And Anr. on 28 March, 2006
Equivalent citations: IV(2006)ACC403
Author: L. Narsimha Reddy
Bench: L. Narasimha Reddy
JUDGMENT L. Narsimha Reddy, J.
1. This C.M.A. is preferred under Section 50 of the Workmen's Compensation Act (for short "the Act").
2. The 1st respondent was employed as a driver on a tractor bearing No. AP 31 T-6926, by the 2nd respondent. The 1st respondent filed W.C. No. 31 of 2005, before the Assistant Commissioner of Labour, Circle-I, Visakhapatnam (for short "the Authority"), the authority designated under the Act. He pleaded that on 1st April, 2005 he took the tractor and trailer to a workshop, on the instructions of 2nd respondent, and while detaching the trailer from the tractor, his fingers of the right hand were crushed, and later on, they were amputated. He claimed compensation of Rs. 1, 73,163.00. He placed reliance upon the certificate issued by the doctor, who treated him, wherein the disability was certified at 25%. The appellant herein was impleaded as one of the parties, being the insurer of the tractor and trailer.
3. The 2nd respondent filed a counter affidavit, almost admitting the plea raised by the 1st respondent. The appellant alone resisted the claim. It was pleaded that the claim of the 1st respondent, both as regards the loss of earning capacity, as well as the quantum of compensation, is excessive. Through his order dated 24th November, 2005, the authority awarded a sum of Rs. 1,11,774, as compensation, by treating the loss of earning capacity of the 1st respondent, as 25%.
4. The learned Counsel for the appellant submits that the injury sustained by the 1st respondent is the one, which finds pacle in Part II of Schedule I, and for such an injury, the authority cannot treat the loss of earning capacity, over and above what is stipulated in the schedule. He submits that according to the relevant entry under the schedule, the loss of earning capacity for amputation, or loss of two phalanges is 11% and there was no justification for the authority, in treating the same at 25%. He places reliance upon several reported decisions, in his support.
5. Learned Counsel for the 1st respondent, on the other hand, submits that there is nothing in the Act, which prohibits the authority to take into account, the effect of percentage of disability, while awarding the compensation. He contends that even in respect of injuries that are listed in the schedule, the authority can award appropriate compensation, depending on the nature of employment of the workman. He too places reliance upon certain decided cases.
6. The only question that falls for consideration in this CMA is, as to whether it is competent for the authority under the Act, to treat the loss of earning capacity, in a manner, different from what is indicated in the schedule.
7. The 1st respondent made a claim under the Act, alleging that his fingers were amputated partially, and such an injury had resulted in substantial loss of earning capacity. He placed reliance upon the certificate marked as Ext. A-5, which was issued by a medical practitioner, examined as A.W. 2.
8. The loss of earning capacity is one of the important factors, to be taken into account, while awarding the compensation under the Act. To ensure a semblance of objectivity, the Act divides the injuries into several categories, in this regard. Depending on the nature of injuries, such as those resulting in permanent total disability and permanent partial disability, the percentage of loss of earning capacity is indicated against the respective entries in the schedule. Section 4 of the Act provides that where the injuries are not mentioned in the schedule, the percentage of disability can be certified by a medical practitioner, and the corresponding loss of earning capacity can be assessed by the Authority.
9. In Gona Sivasankar v. K. Varaprasad and in New India Assurance Company Limited v. K. Yadaiah , this Court held that where the injury sustained by the workman is the one, which is not enlisted in the schedule, the percentage of disability can be certified by a medical practitioner and assessed by the authority. It was also observed that the percentage of both the aspects need not be commensurate, with each other, and much would depend upon the nature of employment of the workman.
10. In the instant case, AW2 certified the percentage of disability of the petitioner, at 25%. He took into account, the fact that two phalanges of the fingers were amputated, and there was a stump or string, which is the source of continuous pain. The authority adopted the same percentage, in the matter of assessing the loss of earning capacity.
11. Had it been a case, where the injury sustained by the 1st respondent did not find place in the schedule, no serious objection could have been raised for the course adopted by the authority. In fact, there are instances, where the authority can assess the loss of earning capacity at 100%, even if the percentage of disability is less than that. However, those are the instances, where, findings are recorded, based on the nature of duties and extent of disability. Here again, Explanation II to Section 4(1) of the Act mandates that the medical practitioner and the authority shall have regard to the percentages of loss of earning capacity, stipulated in Schedule I. The freedom of the authority, in assessing the loss of earning capacity, in respect of scheduled injuries, is completely restricted. He has no option, but to adjudicate the claim guided exclusively by the percentage of loss of earning capacity in the schedule.
12. In the recent past, the Kerala High Court in Mar Themotheous Birth Centenary Press v. Santhosh Raj and in Gopala Pillai v. Vasukutty I (2003) A.C.C. 563 : 2003 A.C.J. 797, held that where the injury sustained by a workman is the one mentioned in Part II of Schedule I of the Act, the authority does not have any power to assess the loss of percentage of earning capacity, over and above what is indicated in the schedule. In the instant case, the injury suffered by the 1st respondent, occurs at Entry No. 28 in Part II of Schedule I. Percentage of loss of earning capacity is specified as 11%. There was no justification for the authority, in ignoring the same.
13. In view of the same, the appeal is allowed in part, and the compensation awarded by the Assistant Commissioner of Labour is reduced to Rs. 49,180 [Rs. 3931 x 60/100 x 11/110 x 189.56 (factor for 38 years)]. There shall be no order as to costs.