Madhya Pradesh High Court
Oriental Insurance Co Ltd vs Raj Kumar Vishwakarma & Anr on 27 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 27th OF OCTOBER, 2022
MISC. APPEAL No. 795 of 2002
BETWEEN:-
ORIENTAL INSURANCE CO LTD THROUGH
DIVISIONAL MANAGER, 1415, WRIGHT TOWN,
JABALPUR
.....APPELLANT
(BY SHRI N.S.RUPRAH, ADVOCATE)
AND
RESPONDENT NO.1-APPLICANT
RAJ KUMAR VISHWAKARMA S/O.GAURI
SHANKAR VISHWAKARMA AGED 36 YEARS,
R/O. NEW BUS STAND, BARELA, JABALPUR
RESPONDENT NO.2-NON-APPLICANT-1
ASHISH ANAND CHOUDHARY OWNER OF BUS
NO.MP-20-7739 C/O.M/S.CHOUDHARY
TRANSPORT COMPANY NEW MOTOR STAND,
JABALPUR
.....RESPONDENTS
(RESPONDENT/CLAIMANT BY SHRI NARENDRA CHAUHAN,
ADVOCATE)
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 19.2.2002 passed by learned Commissioner for Signature Not Verified Wo r k m e n ' s Compensation-cum-Labour Court, Jabalpur in Case SAN No.67/2001/Non-Fatal (Raj Kumar Vishwakarma versus Ashish Anand Digitally signed by AMIT JAIN Date: 2022.10.31 10:32:20 IST Choudhary & Another).
2The claimant, 36 years of age, was working as a Driver of Bus bearing registration No.MP-20-7739. The accident took place on 24.7.2001 when the claimant was changing the tire getting punctured with help of jack, which slipped causing fracture in his tibia bone of right leg below the knee.
Learned counsel for the appellant/Insurance Company submits that the Labour Court has recorded a finding of cent percent disability of the claimant, which is factually incorrect and the said finding needs to be set aside.
Learned counsel for the appellant/Insurance Company places reliance on the judgment of Hon'ble the Supreme Court in National Insurance Company Limited versus 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.
Learned counsel for the respondent/claimant supports the impugned order dated 19.2.2002 passed by learned Commissioner for Workmen's Signature Not Verified SAN Compensation-cum-Labour Court, Jabalpur in Case No.67/2001/Non-Fatal (Raj Digitally signed by AMIT JAIN Date: 2022.10.31 10:32:20 IST Kumar Vishwakarma versus Ashish Anand Choudhary & Another).
3I have heard learned counsel for the parties and gone through the record. Dr.Ravi Choudhary, about whom Shri N.S.Ruprah, learned counsel for the appellant/Insurance Company submits is a notorious person and he has been blacklisted by the High Court for his notoriety to issue fake Disability Certificates, was examined as Member of the District Medical Board and he certified 40% permanent disability of the claimant. As per the Disability Certificate (Exhibit P/7), the claimant has an old malunion fracture of right tibia fibula middle 1/3rd with monoparisis with partial ankylosis right knee and ankle joint with shortening of 3/4th. However, Dr.Ravi Choudahary in his cross- examination admits that he had not treated the claimant. He further deposes that except for driving, the claimant is in a position to carryout any other light job. The aforesaid aspect has been taken into consideration by the Labour Court while passing the impugned order.
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 Signature Not Verified SAN Compensation Act, 1923 to determine the loss of earning capacity or the Digitally signed by AMIT JAIN percentage of loss of partial disability or the permanent disability if evidence Date: 2022.10.31 10:32:20 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 36 years of age at the time of the accident and, therefore, the factor of 194.64 will be applicable. If 40% permanent disablement is taken into consideration then the total compensation payable will come out to Rs.1,86,854.40 in place of Rs.4,69,136. Thus, there will be reduction to the tune of Rs.2.82,281.60 (Rupees Two Lakh Eighty Two Thousand Two Hundred Eighty One and Sixty 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.Signature Not Verified
(VIVEK AGARWAL) SAN JUDGE amit Digitally signed by AMIT JAIN Date: 2022.10.31 10:32:20 IST