Rajasthan High Court - Jodhpur
U.I.Ins.Co.Ltd vs Dal Chand @ Dalu And Ors on 14 November, 2019
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 480/2010
U.i.ins.co.ltd.
----Appellant
Versus
Dal Chand @ Dalu And Ors.
----Respondent
For Appellant(s) : Mr. Anil Bachhawat with
Mr. Sanjay Raj Paliwal
For Respondent(s) : Mr. Dhanesh Saraswat
Dr. Sachin Acharya
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 14/11/2019
1. This appeal under Section 30 of Workmen's Compensation Act, 1923 has been filed for the following reliefs :-
"It is, therefore, most humbly and respectfully prayed that this appeal may kindly be allowed, impugned judgment and award dated 03.3.20107 passed by the learned Workmen's Commissioner, Bhilwara in Case No.01/2007 may kindly be quashed and set aside, and in the alternate the recovery right to the insurer appellant from the owner may kindly be restored."
2. Counsel for the appellant points out that 15% disability reflected in the medical certificate has been enhanced to 60% by the learned Commissioner and no good reason has been given for such assumption.
3. Counsel for the respondent submits that this Court has already decided issue of treating disability percentage more (Downloaded on 05/06/2021 at 04:53:23 PM) (2 of 4) [CMA-480/2010] than the one shown in Medical Certificate in the case of The New India Assurance Co. Ltd. Vs. Chand Mohd. & Anr. (S.B. Civil Misc. Appeal No.753/2006), relevant portion whereof reads as under:
"7. Heard learned counsel for the parties and the learned advocates assisting on the controversy in issue on the request of this Court and perused the precedent law cited at the Bar.
Section 4 of the WC Act exhaustively deals with the compensation on account of death in Sub-Section 1(a), compensation on account of permanent total disablement in Sub- Section 1(b) and compensation on account of permanent partial disablement in Sub-Section 1(c) and compensation on account of temporary disablement in Sub-Section 1(d). This Court takes note of the definition of partial disablement in Section 2(g) and total disablement in Section 2(l), which read as follows :-
(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:
provided that every injury specified in Part II of Schedule I shall be deemed to result in permanent partial disablement;
(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:
Provided that permanent total disablement shall be deemed to result from every injury specified in Part I of Schedule I or from any combination of injuries specified in Part II thereof where the aggregate percentage of the loss of earning capacity, as specified in the said Part II against those injuries, amounts to one hundred per cent. or more;"
This Court also takes note of the fact that where permanent partial disablement is resulting from the injury specified in Part- II of Schedule-I, the compensation has to be taken as payable in the case of permanent total disablement reflecting the percentage of loss of earning capacity. This includes Part-I and Part-II.
Further the injuries which are not mentioned in Schedule-I can of course be taken care of by assessing the loss of earning capacity as per the certificate issued by the qualified medical practitioner.(Downloaded on 05/06/2021 at 04:53:23 PM)
(3 of 4) [CMA-480/2010] The WC Act lays down an elaborate procedure for both the parties to lead evidence and the procedure is prescribed under Section 23 of the Act including securing of attendance of witnesses, compelling for production of documents and material objects, as per the Code of Civil Procedure.
Thus, where an exhaustive outcome has been arrived for computation of compensation under the WC Act while adhering to the provisions of Section 4, no further adjudication or application of mind is required by the Commissioner or Court but in a case where it has been pleaded by the claimant workman that his injuries are such extraordinary as it would render reduction in his earning capacity beyond the specified limits of Schedule-I and Section 4, then it shall be open for the claimant workman to adopt the procedure under Section 23 of the Act and drive home the point as to what was the extraordinary loss caused to him by the injury in question. This shall include the comparison of the injury with loss of earning capacity and the commensurating impact of the injury upon the nature of work being carried out by the claimant in question.
If the Commissioner after considering all evidence from both the sides has arrived at the factual matrix which clearly indicate that the injury in question is directly causing complete loss or a degree of loss in the current employment then the same has to be considered while granting compensation.
The best examples of co-relation between the employment and injury could be amputated leg and driver's job, amputated hand and tailor's and plumber's job etc. The precedent law cited by the learned counsel for the respondents/claimants including Pratap Narain Singh (4 Judge Bench Judgment of Hon'ble Apex Court) (supra), K. Janardan (supra), Lal Singh Rajput (supra), Chandi Dan Charan (supra), Bajaj Allianz General Insurance Company (supra), Iffco Tokio General Insurance Co. (supra) and North East Karnataka Road Transport Corporation (supra) are directly holding the field and the only judgment which gave strength to the submissions of the learned counsel appearing on behalf of the insurance companies namely, Oriental Insurance Company Limited vs. Mohd. Nasir and another (supra) has been held to be per incuriam by the Hon'ble Supreme Court in North East Karnataka Road Transport Corporation (supra).
Thus, the substantial question is decided against the insurance company.
8. Now coming to the case at hand. The amputation of leg below knee of the claimant/respondent no.1 Chand Mohd. who was working as driver is undisputed. The learned authority below computed the loss of income while taking into consideration 100% disability. In light of what has been held above, the (Downloaded on 05/06/2021 at 04:53:23 PM) (4 of 4) [CMA-480/2010] judgment and award passed by the learned authority below is well justified and does not call for any interference.
9. Resultantly, the present appeal, being devoid of any merit, is hereby dismissed.
10. All pending applications also stand disposed of."
4. Counsel for the respondent submits that the awarded compensation has already been disbursed and after so many years any kind of recovery from the claimants shall be too harsh, if at all made, due to interference by this Court.
5. This Court concludes that the assessment made is a question of fact and no substantial question of law is involved in the appeal that may warrant interference by this Court at such a belated stage.
6. Accordingly, the appeal is dismissed. The stay petition is also dismissed.
(DR. PUSHPENDRA SINGH BHATI),J 92-Sanjay/-
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