Rakesh vs National Insurance Company Ltd. And Anr on 10 October, 2023

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Supreme Court - Daily Orders

Rakesh vs National Insurance Company Ltd. And Anr on 10 October, 2023

2. The appellant is aggrieved by an order dated 21 st February, 2018, passed in a First Appeal1 preferred by the respondent No.1 before the High Court of Judicature at Allahabad, whereby the Division Bench had modified the compensation awarded in his favour by the Employee Compensation Commissioner for Workmen’s Compensation and Deputy Labour Commissioner 2, Moradabad, vide order dated 31st March, 2015, passed in a claim petition3 preferred by him, from ₹7,97,142/- [Rupees Seven Lakhs Ninety Seven Thousand One Hundred Forty Two] to ₹4,22,778/- [Rupees Four Lakhs Twenty-Two Thousand Seven Hundred Seventy-Eight]. The operative para of the impugned judgment is as follows:

“Considered the submissions of the learned counsel for the parties. The age of the injured/ claimant has been shown as 30 years in the disability certificate and according to the finding of Commissioner for Workmen's Compensation, the claimant-respondent was cleaner in the vehicle in question and due to the accident his left leg was amputated below the knee. It is a scheduled injury and according to the Schedule-I of the Workmen's Compensation Act, 1923, the loss of working capacity would be 50% and in case of injuries, the loss of earning capacity would be considered as 60% for the purposes of compensation. However, in the present case compensation has been awarded by considering the loss of earning capacity as 100%. As per finding of the Commissioner for Workmen's Compensation, Signature Not Verified Digitally signed by POOJA SHARMA Date: 2023.10.30 1 19:20:32 IST Reason: FAFO No. 1261 of 2015 2 For short the ‘Commissioner’ 3 Claim No. E.C.A. 136 of 2013 1 the salary of the claimant/ respondent was Rs.6000/- and 50% of the same would be Rs.3000/- per month and 60% of that salary will come to Rs.1800/- per month and relevant factor in the present case as per chart is 207.98, hence if the relevant factor is applied to Rs.1800/-, the compensation amount comes to Rs.1800/- X 207.98 = Rs.3,74,364/-.

Medical expenses was Rs.48,414/-. After adding the medical expenses, the total compensation amount comes to Rs.4,22,778/-.”

3. What has weighed with the High Court for reducing the compensation awarded by the Commissioner at 100% is the fact that the loss of working capacity of the appellant under the Workmen’s Compensation Act, 1923, would be 50% and therefore, the loss of earning capacity was liable to be considered as 60% for calculating the compensation.

4. We may note that in the instant case, the accident had occurred on 15 th November, 2012, when the appellant was working as a Cleaner in a goods carrier and was travelling from Sambhal to Moradabad. He suffered several injuries on account of opening the gate of the vehicle. During the course of treatment, the appellant’s left leg had to be amputated below the knee. On the date of the accident, the appellant was 29 years of age and was being paid a salary of ₹6000/- (Rupees Six Thousand) per month. The Commissioner had calculated the compensation awardable to the appellant by taking the loss of working capacity as 100%. The aspect that persuaded the Commissioner was that as a result of the injuries sustained in the accident, the appellant was completely disabled and could never perform his work of a Cleaner. Keeping in mind the said position and the fact that the appellant would have had to abandon his original work of a Cleaner, which would have resulted in reducing his working capacity to 100%, the Commissioner considered 100% loss in the earning capacity of the appellant.

5. The salary of the appellant is not in dispute, which is ₹6000/- [Rupees Six Thousand] per month as on the date of accident. Keeping in mind the age factor at 2 the relevant time as 30 years, a sum of ₹7,97,142/- [Rupees Seven Lakhs Ninety Seven Thousand One Hundred Forty Two] including the medical expenses was awarded to the appellant. The said order was, however, modified by the High Court having assessed the working capacity of the appellant at 60%, and the compensation was reduced to ₹4,22,778/- [Rupees Four Lakhs Twenty-Two Thousand Seven Hundred Seventy-Eight] (₹3,74,364/- [Rupees Three Lakhs Seventy-Four Thousand Three Hundred Sixty-Four] + medical expenses of ₹48,414/- [Rupees Forty-Eight Thousand Four Hundred Fourteen]).

6. Learned counsel for the appellant submits that the High Court ought not to have interfered in the findings returned by the Commissioner, in view of the fact that the appellant could never go back to the original position of being a Cleaner since his left leg was amputated below the knee, which aspect was overlooked. Therefore, he was rightly treated as having suffered 100% permanent disability as against 60% disability assessed by the High Court.

7. We have perused the records and the impugned judgment and are inclined to accept the submission made by learned counsel for the appellant. No doubt, the appellant could never have gone back to earning his original livelihood as a Cleaner, in the light of the fact that he had lost one leg that had to be amputated below the knee. The nature of job being performed by the appellant as a Cleaner being such that he had to alight from the lorry on and off and would need all his faculties to perform his job. This important aspect seems to have been overlooked by the High Court.

8. We are, therefore, of the opinion that the impugned judgment cannot be 3 sustained. The same is hereby set aside and the order passed by the Commissioner dated 31st March, 2015, is restored.

9. We are informed that 50% of the amount was already deposited by the respondent – Insurance company and released in favour of the appellant. The balance amount, as awarded, along with interest shall be deposited within four weeks from today before the Commissioner to be released in favour of the appellant.

10. The appeal is allowed on the aforesaid terms.

.…………............………………......J. (HIMA KOHLI) ......………………...………………....J. (AHSANUDDIN AMANULLAH) NEW DELHI;

OCTOBER 10, 2023.

PS




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ITEM NO.20                        COURT NO.14                          SECTION XI

                      S U P R E M E C O U R T O F               I N D I A
                              RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C)                    No(s).     14581/2018

(Arising out of impugned final judgment and order dated 21-02-2018 in FAFO No. 1261/2015 passed by the High Court Of Judicature At Allahabad) RAKESH PETITIONER(S) VERSUS NATIONAL INSURANCE COMPANY LTD. AND ANR RESPONDENT(S) (FOR ADMISSION and IA No.78737/2018-EXEMPTION FROM FILING O.T. ) Date : 10-10-2023 This petition was called on for hearing today. CORAM :

HON'BLE MS. JUSTICE HIMA KOHLI HON'BLE MR. JUSTICE AHSANUDDIN AMANULLAH For Petitioner(s) Ms. Aruna Gupta, Adv.

Mr. Ramesh Allanki, Adv.

Mr. R. Chandrachud, AOR Mr. Syed Ahmad Naqvi, Adv.

Mr. Dhuli Venkata Krishna, Adv.

For Respondent(s) Mr. Meenakshi Midha, Adv.

Mr. Garv Singh, Adv.

Ms. Samiksha Gupta, Adv.

Mr. Chander Shekhar Ashri, AOR UPON hearing the counsel, the Court made the following O R D E R

1. Leave granted.

2. The appeal is allowed in terms of the signed order, which is placed on the file.

 (POOJA SHARMA)                                                     (NAND KISHOR)
COURT MASTER (SH)                                                 COURT MASTER (NSH)

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