Madhya Pradesh High Court
Oriental Insurance Co.Ltd. vs Smt.Indra Bai & Anr on 31 October, 2022
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 31st OF OCTOBER, 2022
MISCELLANEOUS APPEAL No. 2369 of 2003
BETWEEN:-
ORIENTAL INSURANCE CO. LTD., THROUGH
DIVISIONAL MANAGER, DO-I, 1415, WRIGHT
TOWN, JABALPUR (MADHYA PRADESH)
.....APPELLANT
(BY SHRI N.S. RUPRAH - ADVOCATE)
AND
1. SMT. INDRA BAI, AGE 30 YEARS W/O
MAHESH, R/O VILLAGE KHAIRANI, POST
MANERI, DISTRICT MANDLA (M.P.)
2. M/S SIMPLEX CONCRETE CO. THROUGH
MANISH SHAH PARTNER (OWNER OF TRUCK
NO. MPF-7567), SIMPLEX ESTATE, NAGPUR
ROAD, JABALPUR (M.P.)
.....RESPONDENTS
Th is appeal coming on for hearing this day, t h e court passed the
following:
ORDER
This Miscellaneous Appeal under Section 30 of the Workmen's Compensation Act, 1923 is filed by the appellant/Insurance Company being aggrieved of order dated 03.09.2003 passed by learned Commissioner under Wo rkmen' s Compensation Act-cum-Labour Court, Jabalpur in Case No.134/2002/W.C./Non-Fatal (Smt. Indra Bai Vs. M/s Simplex Concrete Signature Not Verified SAN Company & another) on the ground that respondent No.1-claimant was Digitally signed by PUSHPENDRA PATEL working on truck bearing No.MPF-7567 belonging to respondent No.2 and Date: 2022.11.01 18:58:54 IST insured with the appellant insurance company. Poles were being loaded in the 2 said truck when suddenly chain holding the poles broke and a pole had fallen down on the left hand of the respondent-applicant who sustained fracture. Treating this to be a case of cent percent disability, compensation has been awarded by the learned Claims Tribunal in an illegal and arbitrary manner. Tribunal has taken into consideration 100% disability, which is contrary to the law laid down by the Supreme Court in Amar Nath Singh Vs. Continental Constructions Ltd., 2001 ACJ 643.
Nobody is appearing for the respondents though as per order-sheet dated 13.11.2003, notices were accepted by Shri Narendra Chouhan on behalf of the respondent No.1.
A perusal of the record reveals that claimant had produced certificate from District Medical Board, Jabalpur, Ex.P-8 dated 25.02.2003, whereby it is mentioned that claimant Smt. Indra Bai is an old case of compound fracture of left Radius Ulna with P.O. Plating and screw with contracture of fingeris with wrist drop with Monoparisis upper limb. Disability was certified at 50% with further stipulation that unfit for labour job.
Dr. Ravi Shankar Choudhary was examined on behalf of the claimant, who deposed that it was a case of old compound fracture of radius and ulna bone, which was fixed through an operation by fixing plate and screw. In cross- examination this witness admitted that except for her left hand, there is no disability in her body. She can carry out all the works which can be carried out by right hand.
Thus, it is apparent that learned Commissioner under Workmen's Signature Not Verified SAN Compensation Act has failed to take into consideration the law laid down by Digitally signed by PUSHPENDRA PATEL Date: 2022.11.01 18:58:54 IST Hon'ble the Supreme Court in National Insurance Company Limited versus 3 Mubasir Ahmed & Another (2007) 2 SCC 349 wherein it is held that if there is permanent partial disablement on account of the injuries not specified in Schedule-I then loss of earning capacity is not a substitute for percentage of physical disablement. It is one of the factors to be taken into account. The High Court without indicating any reason or any basis observed that there was 100% loss of earning capacity and such conclusion without any reason or any basis is not sustainable in the eyes of law. He also places reliance on the judgment of Hon'ble the Supreme Court in Oriental Insurance Company Limited versus Mohammad Nasir & Another (2009) 6 SCC 280 wherein it is held that the extent of disability should have been determined taking into consideration the facts & circumstances of the case but not in an arbitrary & illegal manner.
I have heard learned counsel for the appellant and gone through the record.
The Full Bench of this High Court in Kamal Kumar Jain versus Tazuddin & Others 2004 ACJ 1191 has held that the fracture simplicitor cannot be termed as privation of any member or joint and the injured cannot be held to be suffering from permanent disablement unless it is proved that the union of bones is not possible or that after union of bones, the disability has occurred or on account of malunion, the injured has suffered permanent/partial disablement. While reiterating the principle of assessment, it is held that the loss of income should be determined on the basis of the evidence available on record.
T h e Labour Court can refer to the Schedule under the Workmen's Compensation Act, 1923 to determine the loss of earning capacity or the Signature Not Verified SAN percentage of loss of partial disability or the permanent disability if evidence Digitally signed by PUSHPENDRA PATEL Date: 2022.11.01 18:58:54 IST about partial or permanent disability is insufficient.
4When the facts of the present case are taken into consideration in the light of the Full Bench Judgment of this High Court in Kamal Kumar Jain versus Tazuddin & Others (supra) alongwith the Schedule appended to the Workmen's Compensation Act, 1923 and keeping in view the fact that 40% permanent disability has been certified by the doctor for one leg then the total disability for the whole body will not be more than 20%.
Thus, when the Full Bench Judgment of this High Court in Kamal Kumar Jain versus Tazuddin & Others (supra) is taken into consideration then the ends of justice will meet if 40% permanent disablement is taken into consideration because the Labour Court has failed to marshal the evidence and refer to the Schedule appended to the Workmen's Compensation Act, 1923.
Accordingly, the compensation will be as under:-
T h e claimant was 30 years of age at the time of the accident and, therefore, the factor of 207.98 will be applicable. If 40% permanent disablement is taken into consideration then the total compensation payable will come out to Rs.1,49,745.60 in place of Rs.3,74,364/-. Thus, there will be reduction to the tune of Rs.2,24,618.40 (Rupees Two Lakhs, Twenty Four Thousands, Six Hundred and Eighteen and Forty Paise Only). The other terms & conditions of the order shall remain intact.
In above terms, this Miscellaneous Appeal stands disposed of. Let record of the Labour Court be sent back.
(VIVEK AGARWAL)
Signature Not Verified
SAN JUDGE
pp
Digitally signed by PUSHPENDRA PATEL
Date: 2022.11.01 18:58:54 IST