Madhya Pradesh High Court
Oriental Insurance Co Ltd vs Chandra Shekhar Mishra & 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. 1757 of 2002
BETWEEN:-
ORIENTAL INSURANCE CO LTD THROUGH
DIVISIONAL MANAGER 1415, WRIGHT TOWN,
JABALPUR
.....APPELLANT/NON-APPLICANT NO.2
(BY SHRI N.S.RUPRAH, ADVOCATE)
AND
RESPONDENT NO.1-APPLICANT
1.CHANDRA SHEKHAR MISHRA S/O.HARI
PRASAD MISHRA AGED 33 YEARS OCCUPATION
DRIVER R/O.GANDHI GRAM BUDHAGARH,
JABALPUR
RESPONDENT-2/NON-APPLICANT-1
2.VED RAJ KESWANI S/O.KANHAIYALAL
KESWANI R/O.95, DWARKA NAGAR LALMATI,
GHAMAPUR, JABALPUR OWNER OF TRUCK
NO.MP-20D-5267
.....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 8.8.2002 passed by learned Commissioner for Workmen's Compensation-cum-Labour Court, Jabalpur in Case Signature Not Verified SAN Digitally signed by AMIT JAIN Date: 2022.10.31 10:32:19 IST No.107/01/Non-Fatal (Chandra Shekhar Mishra versus Vedraj Keswani & 2 Another) on the ground that the Labour Court has treated the cent percent disability of the claimant, who met with an accident on 23.2.2001 while working as a Driver of Truck bearing registration No.MP-20D-5267 resulting in fractures of both the legs.
Learned counsel for the appellant/Insurance Company submits that the claimant was treated at Gandhi Hospital, Hyderabad and thereafter at Noor Jahan Hospital, Ghantaghar, Jabalpur where it was diagnosed that there were fractures of femur bone in both the legs and those fractures were fixed with plating and screws. The claimant was not in a position to work as a Driver. Dr.Ravi Choudhary though had not treated the claimant but had issued a Disability Certificate certifying 70% disability of both the legs mentioning that there was partial ankylosis and wasting of muscles. The finding of cent percent disability is factually incorrect, which 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 Signature Not Verified SAN 280 wherein it is held that the extent of disability should have been determined Digitally signed by AMIT JAIN Date: 2022.10.31 10:32:19 IST taking into consideration the facts & circumstances of the case but not in an 3 arbitrary & illegal manner.
Learned counsel for the respondent/claimant supports the impugned order dated 8.8.2002 passed by learned Commissioner for Workmen's Compensation-cum-Labour Court, Jabalpur in Case No.107/01/Non-Fatal (Chandra Shekhar Mishra versus Vedraj Keswani & Another).
After hearing learned counsel for the parties and going through the record so also the evidence of claimant Chandra Shekhar Mishra, it is evident that Chandra Shekhar Misha admits in his cross-examination that he was admitted at Hyderabad for two days and thereafter he remained admitted at Jabalpur for about one month in Noor Jahan Hospital. On 31.3.2001, he was operated upon and was sent home after plastering his legs. After one and a half months, his plaster was removed and thereafter he continued to take medicines for a period of three months. Treating Dr.Taqi Raza had not given any Disability Certificate to the claimant and he had not obtained cancellation of his driving licence.
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 70% permanent disability of the claimant. He admits in his examination- in-chief that 70% permanent disability was certified on account of two injuries of the legs. The claimant was declared unfit to carryout work of a Driver. The aforesaid aspect has been taken into consideration by the Labour Court while passing the impugned order.
Signature Not Verified SANThe Full Bench of this High Court in Kamal Kumar Jain versus Digitally signed by AMIT JAIN Tazuddin & Others 2004 ACJ 1191 has held that the fracture simplicitor Date: 2022.10.31 10:32:19 IST 4 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.
The Labour Court can refer to the Schedule under the Workmen's Compensation Act, 1923 to determine the loss of earning capacity or the percentage of loss of partial disability or the permanent disability if evidence about partial or permanent disability is insufficient.
When the judgment of Full Bench of this High Court in Kamal Kumar Jain versus Tazuddin & Others (supra) is taken into consideration alongwith the Schedule appended to the Workmen's Compensation Act, 1923 then it is apparent that the Schedule provides for 50% disability in case of amputation of one of the legs.
Thus, the treatment of two fractures when examined in the light of the Schedule appended to the Workmen's Compensation Act, 1923 cannot be said to have caused 70% permanent disability. There is no mention of the fact in the Disability Certificate (Exhibit P/6) that whether fracture had healed or not. It only makes a mention of monoparisis lower limb with old fracture left femur lower 1/3rd plating and screws with partial ankylosis left knee joint.
Thus, when the Full Bench Judgment of this High Court in Kamal Kumar Jain versus Tazuddin & Others (supra) is taken into consideration Signature Not Verified SAN then the ends of justice will meet if 50% permanent disablement is taken into Digitally signed by AMIT JAIN Date: 2022.10.31 10:32:19 IST consideration because the Labour Court has failed to marshal the evidence and 5 refer to the Schedule appended to the Workmen's Compensation Act, 1923.
Accordingly, the compensation will be as under:-
The claimant was 33 years of age at the time of the accident and, therefore, the factor of 201.66 will be applicable. If 50% permanent disablement is taken into consideration then the total compensation payable will come out to Rs.2,41,992/- in place of Rs.4,83,984/-. Thus, there will be reduction to the tune of Rs.2,41,992/- (Rupees Two Lakhs Forty One Thousand Nine Hundred Ninety Two 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.
(VIVEK AGARWAL) JUDGE amit Signature Not Verified SAN Digitally signed by AMIT JAIN Date: 2022.10.31 10:32:19 IST