Andhra HC (Pre-Telangana)
Pamarthi Subba Rao vs H. Rama Rao And National Insurance Co. ... on 12 March, 2008
Equivalent citations: 2008(3)ALT68
JUDGMENT P. Swaroop Reddy, J.
1. This appeal came up for hearing on a reference made by a learned single Judge of this Court.
2. The question involved is whether a workman that suffered injuries during the course of employment and became disabled is entitled for compensation on the basis of 100% disablement, in spite of his not suffering injuries, as mentioned in Schedule I of Workmen's Compensation Act, 1923, as Section 2(1)(1) of the Act provides for the same, but the proviso to the above section contemplates that permanent disablement shall be deemed to result from the injuries specified in Part-I of Schedule I or from any combination of injuries specified in Part-II of Schedule-I. As there are conflicting decisions on this question, the learned Single Judge referred this question to the Division Bench.
3. Necessary facts are as follows: The workman was a driver on lorry bearing registration No. AHJ-8897 on a salary of Rs. 2,000-00 per month, apart from batta of Rs. 50-00 per day. Onl9.2.1997, while he was driving that lorry from Huzurnagar to Visakhapatnam, the lorry met with an accident near Gogulapadu in Visakhapatnam District; as the lorry driven by the workman dashed against a stationary lorry; the workman received serious injuries and his right leg was crushed in the accident, which was subsequently amputated upto knee level at K.G. Hospital, Visakhapatnam. He was discharged from the Hospital on 22.3.1997 against medical advice. Later he got treatment at Aswani Nursing Home, Vijayawada. The Commissioner for Workmen's Compensation, Eluru, before whom W.C. No. 111 of 1997 was filed by the workman came up for consideration and the learned Commissioner framed the following points for adjudication.
i) Whether the applicant sustained permanent and partial disability due to the accident out of an in the course of employment?
ii) If so, to what compensation the applicant is entitled and who is liable to pay?
The learned Commissioner held that the workman suffered permanent partial disability in the accident arising out of and in the course of employment and awarded compensation of Rs. 1,22,310.00. The workman filed the present appeal being not satisfied with the Award passed by the Commissioner.
4. Before the learned Single Judge, it was contended on behalf of the workman that, though the disability was assessed at 50% permanent partial by the Orthopedic Surgeon, as the workman cannot drive any vehicle for ever due to the amputation of his right leg below the knee, it shall be treated as 100% disability and compensation has to be awarded on that basis. That contention was resisted by the opposite parties contending that, as, it was admittedly a case of 50% permanent partial disability, the workman is not entitled for compensation on the basis of total disability. The learned single Judge observed that "The only point that arises for consideration in the appeal is whether it is a case of 100% disability in view of the fact that the appellant was crippled in driving the vehicle due to the amputation of his right leg below the knee level?"
5. There is no dispute about the facts. The oral evidence of workman, and Ex A-1, the FIR; Ex A-2 MVI Report; Ex A-3 Wound Certificate; Ex A-6 driving license and Ex C-1, the case sheet of KG Hospital, Visakhapatnam etc., proved the case of the workman.
6. The learned single Judge after referring to the decision of the Hon'ble Supreme Court in Pratap Narain Singh Deo v. Shrinivas Sabata and the following decisions of our High Court:
i) Janatha Modern Rice Mills v. G. Satyanarayana 1995 (1) ALD 205 (2);
ii) Pasupuleti Rama Rao v. Pothinaboina Durga Rao ;
iii) Gorla Obula Reddy v. K. Rajagopal Reddy ;
iv) National Insurance Co. Ltd. v. D. Sivasankar CMA. No. 1183/2005 dt.26.4.2005; and
v) New India Insurance Co. Ltd. v. Abdul Khader Jilani Held that, there is cleavage of opinion in various decisions and referred the matter to Division Bench for an authoritative pronouncement.
7. Before us also the learned Counsel for the workman raised the same contention that was raised before the learned single Judge saying that the workman though suffered 50% disability, as, he has become incapable of discharging his duties as driver, it has to be deemed that he suffered 100% disability and compensation has to be paid on that basis and this contention is resisted by the learned Counsel appearing for the Insurance Company.
8. Section 2(1)(1) of the Workmen's Compensation Act reads as follows:
"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 where the aggregate percentage of the loss of earning capacity, as specified in the said part II against those injuries, amounts to one hundred percent or more.
Thus a plain reading of the section shows that in case a workman is incapacitated of the work, which he was capable of performing at the time of accident resulting in total disablement, he is covered. In the present case there is no dispute that the workman was a driver, who suffered amputation of leg, on account of the accident he suffered during the course of his employment. There is no dispute that he is incapable of performing his duties as driver, which he was performing prior to the accident, as such his case has to be considered to be one of total disablement.
But, the proviso to Section 2(1)(1) of the Act contemplates that total disablement shall be deemed to result from every injury specified in Part-I of Schedule I or combination of the injuries specified in part-I of Schedule-I, thereby contemplating that the workman merely becoming totally disabled from discharging the functions he was discharging prior to the accident is not sufficient, but he must have also suffered the disablement as provided in Part-I of Schedule-I or combination of injuries specified in Part-II of Schedule-I.
9. There is no dispute that the appellant here in did not suffer the injuries mentioned in part-I of Schedule-I or combination of injuries as mentioned in Part-II of Schedule-I.
10. The question now is whether in such a situation, the workman is entitled for compensation for total disablement.
In our view, in case, the intention of the Legislature was to give benefit of total disablement only in case the workman suffered injuries mentioned either in Part-I or combination of injuries in Part-II of Schedule-I, as provided in the proviso to Section 2(1)(1) of the Act, perhaps, there was no necessity of clause 2(1)(1) contemplating that, total disablement is, incapacity of the workman for performing the work which he was capable of performing at the time of the accident. It could have simply provided that total disablement would be only in case, the workman suffers injuries specified in Part-I or combination of injuries specified in Part-II of schedule-II, as provided for in proviso to Section 2(1)(1).
11. The leading decision on the subject is of the Apex Court in Pratap Narain Singh Deo (1 supra). In that case, the workman who was a Carpenter suffered amputation of hand on account of which, he could no longer work as a Carpenter and it was held that, it amounts to total disablement, as provided in Section 2(1)(1) of the Act and the workman would be entitled for compensation on the basis of 100% disability.
In paragraph-5 of the above Judgment the Hon'ble Apex Court observed that:
The injured workman in this case is carpenter by profession...By the loss of the left hand above the elbow, he had evidently been rendered unfit for the work of carpenter as the work of carpentry cannot be done by one hand only This is obviously a reasonable and correct finding. Counsel for the appellant has not been able to assail it on any ground and it does not require to be corrected in this appeal. There is also no justification for the other argument which has been advanced with reference to item 3 of part II of Schedule I, because it was not the appellant's case before the Commissioner that amputation of the arm was from 8" from 580 of the acromion to less than 4 1/2 " below the tip of olecranion. A new case cannot therefore be allowed to be set up on facts which have not been admitted or established.
12. The learned Counsel for the Insurance Company contends that in the above paragraph, the Hon'ble Supreme Court observed that "the argument advanced with reference to item 3 of Part II of Schedule-I, cannot be allowed to be set up, as, such a plea was not taken before the Commissioner - the learned Counsel contends that in case such a plea was taken before the Commissioner, perhaps, that could have been considered. In our view, the above contention may not arise, as admittedly the injury suffered by the workman was only amputation of hand and no other injuries, there was no combination of injuries. Thus the reference to the above aspect of the argument advanced with reference to item No. 3 in Part-II of Schedule I, which was not said to be a case put up before the Commissioner, has to be taken only to be a passing remark, not having any impact on the decision or it might be a case where the workman suffered some other injuries also, the details of which were not referred in the Apex Court Judgment.
13. The learned Counsel for the workman also relied on a decision of our High Court in Lingampalli Rajam (died) per LRs. Colliery Manager, Morgan's Pit, Singareni Collieries Co. Ltd. 2000 (1) ALD 554, where the workman suffered shortening of leg by 1/2 " and stiffness in the ankle and where his services were terminated as he was medically unfit for the job, he was doing, it was held that he has definitely suffered total disability falling within the meaning of Section 2(1)(1) of the Act and compensation has to be determined accordingly. The factual position in the present case is worse than in the case of Lingampalli Rajam (7 supra), as there the victim suffered only shortening of leg and stiffness of ankle, whereas in the present case, the leg was amputated below knee level.
14. The learned Counsel for the respondent relied on a decision of the Hon'ble Supreme Court in Amar Nath Singh v. Continental constructions Ltd. . In the above case, the workman lost left eye and made a claim contending that he lost his complete vision of that eye. The medical evidence revealed that he lost vision only up to 80%, the Workmen Compensation Court assessed the compensation payable to him at 100%, s per schedule-I, item No. 4. The High Court reduced the same to 30% as per item No. 26 of Part-II of Schedule-I. Before the Hon'ble Supreme Court the decision in Pratap Narain Singh Deo (supra), was cited contending that the workman is entitled for compensating treating him as suffering with total disability. It was contended on behalf of the Insurance Company that as the workman himself was claiming that he was fit for working and his evidence disclosed the same, it cannot be treated that he suffered 100% disability. The Hon'ble Supreme Court held that the decision in Pratap Narain Singh Deo (1 supra), turned on its own facts and the principles therein cannot be extended to the case o hand. The Hon'ble Supreme Court further observed that it is of the opinion that it should not be unduly fettered by the principles stated either in the Act or made in the course of the proceedings in the case and on over all assessment of the matter, the workman shall be allowed to retain Rs. 1.00 Lakh, out of Rs. 1.97 Lakhs deposited earlier. Thus in this decision - Amarnath Singh's case (8 supra) no particular principle is laid down and that was a case where the workman suffered partial disability of eye and even according to him, he was able to discharge duties, he was earlier discharging. That being the case, in our opinion, the above decision is not applicable to the present case. In fact, the observation made by the Hon'ble Supreme Court that the court should not be unduly fettered by the principles stated in the act would to some extent are in favour of the claimant and would give liberty to the court to give favourable interpretation of the provisions of Section 2(1)(1) of the Act.
15. When a similar question was referred to a Division Bench of our High Court by a learned Single Judge, the question was answered by the Division Bench - in Jeelani's case (6 supra). In that case the reference was " Whether the entries contained in Part-I and II of Schedule-I of Workmen's Compensation Act are relevant for assessing the loss of earning capacity for non schedule injuries, particularly in the context of requirement under explanation-II of Section 4(1)(c)(ii) of the Act.
16. In the above case, the workman was an Auto rickshaw driver. He suffered accident on 7.2.2004 during the course of his employment, as a result of which he suffered injuries. The Commissioner under the Act held that the applicant had suffered injuries in the accident; that though he suffered only 45% physical disability, loss of earning capacity was to a tune of 100% and awarded compensation on the basis of 100% disability. The Hon'ble Division Bench in paragraph 25 of the above Judgment - answered the reference as follows:
Though none of the above judgments directly deal with the question about the relevance of entries in Para-I and II of Schedule-I in the matter of assessment of loss of earning capacity for non-schedule injuries, the ratio which can be deduced from the law laid down in those cases is that in the case of unspecified non schedule injuries, the compensation is to be paid keeping in view the loss of earning capacity as assessed by the qualified medical practitioner and the Court's discretion to award compensation is not controlled by the entries contained in Parts-I and II of Schedule I. The quantum of compensation to be awarded to the workman will always depend on the assessment made by the qualified medical practitioner on the issue of loss of earning capacity of the workman. If the judgment of the learned single judge in National Insurance Co. Ltd. v. Rajesh Heimanadge is considered in the light of the above discussion, we do not have any hesitation to hold that the same lays down a correct law.
17. It is significant to note that it was held "....compensation has to be paid keeping in view the loss of earning capacity as assessed by the qualified medical practitioner and the court's discretion to award compensation is not controlled by the entries contained in parts-I and II of Schedule-I. The finding that court's discretion to Award compensation is not controlled by the entries contained in Paragraphs-I and II, makes it clear that, irrespective of the injuries being not covered by parts-I and II of Schedule-I, a finding that the workman suffered total disability can be given - No doubt, the decision refers to the above finding being given only on the basis of medical evidence.
18. In the present case, the question of taking aid from medical evidence does not arise, because of the amputation of leg. In Jeelani Case (6 supra), the workman suffered injuries, which disabled him from performing his duties, which he was discharging earlier. The details with regard to the injuries are not available and obviously reliance was placed only on the medical evidence to decide the question as to whether there was disablement in performing the duties he was earlier performing. That contingency does not arise in this case, as on account of amputation of leg, the workman definitely became disabled to work as driver.
19. In the present reference, the learned single Judge observed that the decision in Jeelani case (6 supra) is of no avail to the workman having regard to the crucial point involved in the case on had, as the Division Bench in Jeelani case (6 supra) dealt with the case of non specified injuries.
In view of the various decisions referred in Jeelani Case (6 supra), as well as the Reference Order, as already referred by us, when on the basis of the medical evidence, 100% disability can be decided without the victim suffering any injuries specified in Schedule-I, on the medical officer certifying that the victim suffered 100% disability; there is no question of such benefit being not extended in the case of persons who suffered injuries which would definitely indicate total disablement to do the work, which the workman was capable of performing at the time of the accident. Only in cases where it would not be possible to decide 100% disability without medical evidence or where the victim did not suffer sufficient injuries mentioned in Schedule-I, the question of relying on medical evidence would arise and when once that question can be decided without medical evidence, like of a case of amputation of leg of a driver, as in this case, there is no need of relying on medical evidence or on specified injuries.
20. The crucial question is not of specified injuries, but whether there was total disability to do the work, which the workman was doing at the time of the accident. The importance of medical evidence is only in case where such disablement cannot be decided without the aid of medical evidence and in case where the position can be decided with or without medical evidence like amputation of limbs, where a decision can be taken with regard to the working capacity of workman, the medical evidence is not relevant and the question of the victim not suffering specified injuries is also not relevant. This point is amply clarified by the Division Bench in Jeelani's case (6 supra), wherein it was observed that the court's discretion to award compensation is not controlled by the injuries contained in parts -I and II of Schedule-I.
21. In all the above circumstances, the reference is answered as follows "in spite of there being no sufferance of injuries mentioned in Part-I of Schedule-I or combination of injuries as mentioned in Part-II of Schedule-I, if there is 100% disability to do the work, the workman was doing earlier, it has to be treated that the workman has suffered 100% disability". The reference is answered accordingly.
The Registry is directed to place the matter before the Hon'ble the Chief Justice for appropriate Orders.