Andhra HC (Pre-Telangana)
Gorla Obula Reddy vs K. Raj Gopal Reddy And The Divisional ... on 23 September, 2004
Equivalent citations: II(2005)ACC314, 2004(6)ALD534, 2004(6)ALT690
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
JUDGMENT L. Narasimha Reddy, J.
1. This civil miscellaneous appeal is filed under Section 30 of the Workmen's Compensation Act, 1923 (for short 'the Act') assailing the order dated 05.05.2003 passed by the Commissioner for Workmen's Compensation and Assistant Commissioner of Labour, Kadapa (for short 'the Commissioner') in W.C.No. 24 of 2002. The appellant raised a claim before the Commissioner alleging that he was employed as a labourer under the first respondent to work on his tractor bearing No.AP 04E 3263, and on 02.06.2002 at about 07.30 p.m., the tractor met with an accident on Ramapuram-Dinnepadu road, resulting in amputation of his right fore arm. The tractor was insured with the second respondent. He claimed compensation under the provisions of the Act. He pleaded that he was being paid remuneration at Rs.120/- per day and that his age was 28 years at the time of accident.
2. The first respondent did not contradict the contents of the application filed by the appellant. The second respondent disputed its liability. It pleaded that the appellant was not employed as a workman, but was travelling in the tractor as a passenger.
3. The Commissioner took the extent of disability suffered by the appellant at 75%, the wages at Rs.60/- per day, the age of the appellant as 28 years and awarded a sum of Rs.2,06,718/- as compensation with interest at 9% per annum from the date of accident.
4. Learned counsel for the appellant submits that the disability suffered by the appellant is 100% because of the fact that the appellant is not able to perform the same duties on account of the amputation of fore arm, and that the Commissioner ought to have awarded the compensation on that basis. Placing reliance on the Judgments rendered by this Court and the Supreme Court, the learned counsel submits that irrespective of the percentage of loss of earning capacity, stipulated for an injury under part II of Schedule I of the Act, the Commissioner ought to have decided the extent of disability, taking into account the nature of injuries and its impact on the capacity of the appellant to do the work.
5. Learned counsel for the second respondent, on the other hand, submits that the appellant did not lead any evidence in relation to the nature of injuries and extent of disability vis-à-vis the work undertaken by him at the time of accident and that every injury, by itself cannot be treated as resulting in 100% disability.
6. The appellant submitted a claim under Section 3 of the Act before the Commissioner stating that he was employed as an un-skilled labourer with the first respondent to work upon a tractor and his right fore arm was amputated on account of the accident involving the tractor. The Commissioner framed as many as six issues, which read as under:
1) Whether the applicant is workman as per the provisions of the W.C. Act and he met with an accident arising out of and in the course of his employment resulting disability?
2) What was the age of the injured applicant at the time of accident?
3) What were the wages paid to the injured applicant at the time of accident?
4) What was the loss of earning capacity suffered by the injured applicant at the time of accident? What was the percentage of disability?
5) What is the amount of compensation payable?
6) Who are liable to pay the compensation?
7. The appellant examined himself as A.W.1. He also examined an orthopaedic surgeon as A.W.2, who certified as well as deposed to the effect that the right hand of the appellant was amputated at wrist joint and that it has resulted in disability, to an extent of 75%. The first respondent deposed as R.W.1 and on behalf of the second respondent, R.W.2 was examined. Documents, including the Disability Certificate, were also filed. The Commissioner awarded a sum of Rs.2,06,718/- as compensation, proceeding on the basis that the appellant suffered disability to an extent of 75%. The appellant pleads that the disability ought to have been taken at 100%.
8. The Act provides for payment of compensation to the workmen or their dependants on account of injuries or death as the case may be. Section 2(g) defines partial disablement and Section 2(l) defines total disablement, as under:
"Section 2(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.
Section 2(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."
9. On the basis of the scientific study undertaken in the matter, the Schedules are prepared providing for various factors such as, age, wages, and percentage of loss of earning capacity in the matter of determination of compensation. Schedule I relates to the percentage of loss of earning capacity as a result of different kinds of injuries. Part I thereof enlists six injuries, as resulting in 100% loss of earning capacity. Part II contains 48 kinds of injuries. The loss of earning capacity on account of these injuries ranges from 90% to 1%. Schedule IV deals with the age factor. Section 4 of the Act provides for the mechanism for assessment of loss of earning capacity in the event of death, permanent total disablement, permanent partial disablement and temporary disablement, which result from injuries during the course of employment.
10. A perusal of the definitions of partial and total disablement discloses that the injuries specified in parts I and II of Schedule I are to be deemed to result in permanent, total disablement depending on the nature of injuries referred to in the respective provisions. They suggest that, if the workman is able to establish that having regard to the nature of injury suffered by him vis-à-vis the kind of employment in which he was engaged, he has suffered partial or total disablement, as the case may be, up to a higher degree, the percentages of loss of earning capacity stipulated under parts I and II of Schedule I lose their significance in determination of compensation. What is provided for in Schedule I has to be treated as rock bottom, leaving it open to the workman to make a better case than the one provided for under that Schedule. This, infact, is the purport of the Judgment of this Court in The New India Assurance Co.Ltd. v. Kotam Appa Rao1.
11. The necessity for the Commissioner to address to such questions would arise if only the required evidence is placed before him, by the workman. If the workman is able to satisfy the Commissioner that the injury suffered by him is such that it renders him totally unfit to perform the work, which he was doing at the time of the accident, the disablement has to be treated as total and the compensation has to be awarded accordingly. The ability of the workman to perform any other work effectively, even with the injury suffered by him, is not a factor to disable the workman to be paid the compensation, which he is otherwise entitled to, in law. For example, amputation of a leg below knee, is treated as resulting in 50% loss of earning capacity (Item 21 of part II of Schedule I). The items in Schedule I do not refer to the type of employment of a workman. If the workman is a driver, amputation of a leg would certainly result in his suffering total disablement, irrespective of the percentage of loss of earning capacity provided for under the Schedule. Conversely, if such a workman is able to do other works, such as, electric repairs and painting etc. with 100% efficiency, that factor will not disable him to be paid the compensation, on account of his total disablement for the post of driver.
12. Reverting to the facts of the case, the Commissioner framed the issues, which are very much relevant for adjudicating these aspects. The percentage of disability referred to in Issue No.4, ought to have been decided, with reference to the nature of work undertaken by the appellant and the impact of the injury received by him on such work. Neither the appellant has adduced any evidence in that regard nor did any occasion arise for the respondents to contradict the same.
13. The Commissioner has taken the disability, certified by A.W.2 as the basis. Here again, it needs to be noticed that the injuries referred to in parts I and II of Schedule I have different bearing, depending on the nature of the work undertaken by a workman. The extent of disability certified by a physician is not absolute in its application. The certification by the medical practitioner is from the point of view of concerned organ. For example, if one finger is cut up to 50% of its length, the physician may certify it to be a disability to the extent of 50%. However, from the context of the employment, its impact on the earning capacity is different. If part II of Schedule I, which itself is of general application, takes the loss of whole of the finger at 75%, depending on the importance of a finger in relation to the work entrusted to a workman, the percentage of loss of earning capacity may vary. The effort is only to drive home the point that the Commissioner has to consider two important questions, namely the nature of work that was undertaken by the Workman at the time of accident, and the impact of the injuries suffered by such workman on his capacity to do that work. The percentages referred to in Schedule I or the certificate by a medical practitioner in such an event have to be taken as guiding factors. If no evidence is adduced touching these aspects, it has to be simply guided by the percentage of loss of earning capacity stipulated under Schedule I. This is evident from the observation of the Supreme Court in Pratap Narain Singh v. Shrinivas Sabata2 relied upon by the learned counsel for the appellant. In that case, the disability of the workman was decided by the Commissioner in relation to the work that was entrusted to him. The relevant observation reads as under:
"It has not been disputed before us that the injury was of such a nature as to cause permanent disablement to the respondent and the question for consideration is whether the disablement incapacitated the respondent for all work which he was capable of performing at the time of the accident. The Commissioner has examined the question and recorded his finding as follows:
The injured workman in this case is carpenter by profession.... By loss of the left hand above the elbow, he has evidently been rendered unfit for the work of carpenter as the work of carpentry cannot be done by one hand only."
14. The order under appeal does not fit in to either of the categories. For the injuries suffered by the appellant, the percentage of loss of earning capacity under part II of Schedule I is 60, whereas the Commissioner took the same at 75%. Deviation from the Schedule, as observed earlier, can be only on the basis of evidence in relation to the nature of work and the impact of the injury upon it. Since, the determination was not undertaken on these lines, the order under appeal is set aside and the matter is remanded to the Commissioner for fresh adjudication on the lines indicated above. The amount, which was already paid to the appellant, shall be subject to the outcome of the fresh orders that may be passed by the Commissioner after remand.