Rajasthan High Court - Jodhpur
The New India Assurance Com Ltd vs Chand Mohd. And Anr on 26 September, 2019
Equivalent citations: AIRONLINE 2019 RAJ 1281
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 753/2006
The New India Assurance Co. Ltd. Branch Office, through
Divisional Manager, Abhey Chambers, Jalori Gate, Jodhpur.
----Appellant
Versus
1. Chand Mohd. S/o Shri Garib Khan, resident of Gandhi Nagar,
Abu Road, Sirohi.
2. Munni Bano W/o Shoukat Mohd, resident of Prem Nagar,
Gandhi Nagar Abu Road, Sirohi.
----Respondents
For Appellant(s) : Mr.Anil Bachhawat a/w Mr.SR Paliwal.
For Respondent(s) : Mr.Surendra Surana.
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Reportable Judgment
26/09/2019
1. The appellant insurance company has preferred this
appeal under Section 30 of the Workmen's Compensation Act,
1923 (for short 'WC Act') challenging the judgment dated
1.10.2005 passed by the Workmen's Compensation Commissioner,
Sirohi.
2. Brief facts of this case as noticed by this Court are that
the claimant/respondent no.1 Chand Mohd. was working as driver
on the jeep no.RJ 24/T-0653 owned by the respondent no.2. The
said jeep met with an accident and the claimant sustained several
injuries resulting into amputation of leg of the claimant below
knee.
3. The substantial question of law raised by learned
counsel for the appellant insurance company in the matter is that
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the claimant's leg was amputated below the knee and thus, the
percentage of loss of earning capacity was to be taken as 50% as
per the WC Act. The medical certificate issued by the District
General Hospital, Sirohi was showing the permanent disability to
the tune of 70% with respect to the injuries caused to the
claimant. The learned authority below computed the loss of
income taking into consideration 100% disability. Thus, the
substantial question is whether the injury in question which falls
under Section 4(1)(c)(i) of the WC Act can be treated as
permanent total disablement or would be treated as permanent
partial disablement. The question also is as to how the loss in
earning capacity shall be computed.
Section 4(1)(c) of the WC Act reads as follows :-
"4. Amount of compensation:-
(1) Subject to the provisions of this Act, the amount of
compensation shall be as follows, namely:--
....
(c) Where permanent (i) in the case of an injury partial disablement specified in Part II of Schedule I, results from the such percentage of the injury compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury, and
(ii) in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of (Downloaded on 05/06/2021 at 02:13:07 PM) (3 of 24) [CMA-753/2006] earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury;
Explanation I.-- Where more injuries than one are caused by the same accident, the amount of compensation payable under this head shall be aggregated but not so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries; Explanation II.-- In assessing the loss of earning capacity for the purposes of sub- clause (ii), the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in relation to different injuries specified in Schedule I;
4. This Court requested learned counsel Mr.Sanjeev Johari, Mr.Jagdish Vyas and Mr.Anil Kaushik appearing for the various insurance companies to assist in this matter as it related to an important issue. Similarly, this Court requested the assistance of advocates Mr.Tribhuvan Gupta, Mr.M.C. Bishnoi and Mr.Rishabh Shrimali to assist in this matter on behalf of the claimants.
5.1 Learned counsel appearing for the insurance companies submit that since the injury in question is mentioned at S.No.20 and 21 in Schedule-I, Part-II of the WC Act, it cannot be taken beyond the prescribed percentage of loss of earning capacity i.e. 50%.
5.2 Learned counsel appearing for the insurance companies submit that the WC Act has a welfare scheme which is separated from the Motor Vehicles Act and the concept of just compensation arising out of Section 168 of the Motor Vehicles Act will not be applicable in the present case but only the concept of computing the compensation as per Section 4(1) of the WC Act will be taken (Downloaded on 05/06/2021 at 02:13:07 PM) (4 of 24) [CMA-753/2006] into consideration. Learned counsel appearing for the insurance companies submitted that this is a case of permanent partial disablement and thus, would fall under Section 4(1)(c) and since the loss of earning capacity has to be judged, the same can be done as per Explanation II read with Section 4(1)(c)(i). Learned counsel appearing for the insurance companies further submit that the strict parameters are mentioned in the WC Act for permanent total disablement in Section 4(1)(b) and permanent partial disablement in Section 4(1)(c) and thus, they both are supported by Schedule-I, Part-I for permanent total disablement and Part-II for permanent partial disablement. Learned counsel appearing for the insurance companies submitted that in all demarcated and non-demarcated partial disablement and permanent disablement, the role of medical practitioner would be limited to the injuries which do not fall in Schedule-I and thus, the medical certificate issued by the qualified medical practitioner shall be applicable.
5.3 In support of their submissions, learned counsel appearing for the insurance companies have relied upon the judgment of the Hon'ble Apex Court in the case of Oriental Insurance Company Limited vs. Mohd. Nasir and another reported in (2009) 6 SCC 280, relevant paras no.23, 27, 28, 29 and 30 whereof read as follows :-
"23. Both, the 1923 Act and 1988 Act are beneficent legislation insofar as they provide for payment of compensation to the workmen employed by the employers and/or by use of motor vehicle by the owner thereof and/or the insurer to the claimants suffering permanent disability. The amount of compensation is to be determined in terms of the provisions of the respective Acts. Whereas in terms of the 1923 Act, the Commissioner who is a quasi judicial (Downloaded on 05/06/2021 at 02:13:07 PM) (5 of 24) [CMA-753/2006] authority, is bound to apply the principles and the factors laid down in the Act for the purpose of determining the compensation, Section 168 of the 1988 Act enjoins the Tribunal to make an award determining the amount of compensation which appears to be just.
27. The statutes provide for determination of the extent of physical disability suffered by a qualified medical practitioner so as to enable him to assess the loss of earning capacity. Explanation 1 appended to clause (c) of sub- section (1) of Section 4 provides that where there are more injuries than one, the aggregate amount of compensation has to be taken but the same should not exceed the amount which would have been payable in case of permanent total disablement. It is also beyond any doubt or dispute that while determining the amount of loss of earning capacity, the Tribunal or the High Court must record reasons for arriving at their conclusion.
28. The 1923 Act which would also be the claims applications arising out of use of motor vehicles in terms of the provisions of 1988 Act would for the purpose of determination of the amount of compensation where the victim of the accident suffers from disability in the cases coming within the purview thereof. The Note appended to the Second Schedule of the 1988 Act raises a legal fiction, stating that `injuries deemed to result in Permanent Total Disablement/Permanent Partial Disablement and percentage of loss of earning capacity shall be as per Schedule I under the Workmen's Compensation Act, 1923'. Permanent disability, therefore, for certain purposes have been co- related with functional disability.
29. As to what, therefore, in our opinion, would be relevant is to find out the nature of injuries and as to whether the same falls within the purview of Part I or Part II thereof. We have noticed hereinbefore that whereas Part I specifies the injuries which would deem to result in (Downloaded on 05/06/2021 at 02:13:07 PM) (6 of 24) [CMA-753/2006] permanent total disablement, Part II specifies injuries which would be deemed to result in permanent partial disablement.
30. The distinction between the `permanent total disablement' and `permanent partial disablement' is that whereas in the former it is 100% disablement, in the latter it is only the disablement to the extent specified in the Schedule. Similar terms have been used in clauses (a) and
(b) of paragraph 5 of the Second Schedule of the Motor Vehicles Act. It, by reference, incorporates the provisions of the First Schedule of the 1923 Act. Indisputably, therefore, the Note appended thereto would not only be applicable to the cases falling under the 1923 Act but apply to the cases which fall under the 1988 Act as well."
5.4 Learned counsel appearing for the insurance companies have distinguished compensation under the WC Act and the compensation under the Motor Vehicles Act by referring to the judgment of the Hon'ble Apex Court in the case of Raj Kumar vs. Ajay Kumar and another reported in (2011) 1 SCC 343, where the concept of just compensation has been explained. Relevant para no.14 of the said judgment reads as follows :-
"14. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation (Downloaded on 05/06/2021 at 02:13:07 PM) (7 of 24) [CMA-753/2006] under the head of `loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity."
6.1 Learned counsel for the respondents/claimants submit that in normal course, in the WC Act, mechanism of determination of compensation is laid down in Section 4 but whenever there is a loss of earning which correlates with the nature of employment and directly indicates as loss of employment, then it has to be separately considered by the Court. Learned counsel for the respondents/claimants have submitted that assessing the injuries mentioned in the Schedule-I as well as the non-scheduled injuries is no doubt a water tight compartment but the technicality of the words cannot defeat justice as a person who might be a driver, as is in the case at hand, and whose leg is amputated down the knee, then it shall automatically by all prudence shall mean that the person shall never be in a position to drive again. In such exceptional circumstances, where the injury is directly correlated with the performance on the job, the interpretation has to be drawn by the Court to determine the compensation on account of loss of future earning. To substantiate their submission, learned counsel for the respondents/claimants have relied upon the Four Judges Bench judgment of the Hon'ble Apex Court in the case of (Downloaded on 05/06/2021 at 02:13:07 PM) (8 of 24) [CMA-753/2006] Pratap Narain Singh Deo vs. Shrinivas Sabata and another reported in AIR 1976 SC 222, wherein the Hon'ble Apex Court has held that though the injury did not result in permanent total disablement of the claimant but the nature of the job being performed by the claimant if indicates that there is loss of future earning, whether complete or to a particular degree, then the same has to be considered by the Court. The judgment reads as follows :-
"1. This appeal by special leave is by Pratap Narain Singh Deo who is the, proprietor of two cinema halls in Jeypore, district Koraput, Orissa. It is not in dispute that Srinivas Sabata, respondent No. 1, (hereinafter referred to as the respondent) was working as a carpenter for doing some ornamental work in a cinema hall of the appellant on July 6, 1968, when he fell down, and suffered injuries resulting in the amputation of his left arm from the elbow. He served a notice on the appellant dated August 11, 1968 demanding payment of compensation as his regular employee. The appellant sent a reply dated August 21, 1968 stating that the respondent was a casual contractor, and that the accident had taken place solely because of his own negligence. The respondent then made a personal approach for obtaining the compensation, but to no avail. He therefore made an application to the Commissioner for Workmen's Compensation, respondent No. 2, stating that he was a regular employee of the appellant, his wages were Rs. 120/- per mensem, he had suffered the injury in the course of his employment and was entitled to compensation under the Workmen's Compensation Act, 1923, (hereinafter referred to as the Act). Notice of the application was served on the appellant on October 10, 1968 calling upon him to show cause why penalty to the extent of 50 percent and interest at 6 percent per annum should not be imposed on him under section 4A of the Act on the amount of compensation (Downloaded on 05/06/2021 at 02:13:07 PM) (9 of 24) [CMA-753/2006] payable by him because of the default in making the payment of the compensation. The appellant contested the respondents' claim on the grounds mentioned above and on the further ground that respondent No. 2 had no jurisdiction to entertain and adjudicate on the claim. He filed a memorandum of agreement on April 10, 1969 accepting the liability to pay compensation for a sum which was found by the Commissioner to be so grossly inadequate that he refused to register it.
2. The Commissioner held in his order dated May 6, 1969 that the injury had resulted in the amputation of the left arm of the respondent above the elbow. He held further that the respondent was a carpenter by profession and "by loss of his 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." He therefore adjudged him to have lost "100 percent of his earning capacity." On that basis he calculated the amount of compensation at Rs. 9800/- and ordered the payment of penalty to the extent of 50 per cent together with interest at 6 percent per annum, making a total of Rs. 15,092/-.
3. The appellant felt aggrieved and filed a writ petition in the High Court of Orissa, but it was dismissed summarily on October 10, 1969. He has therefore come up in appeal to this Court by special leave.
4. It has not been disputed before us that the injury in question was caused to the respondent by an accident which arose out of and in the course of his employment with the appellant. It is also not in dispute that the injury resulted in amputation of his left arm at the elbow. It has however been argued that the injury did not result in permanent total disablement of the respondent, and that the Commissioner committed a gross error of law in taking that view as there was only partial disablement within the meaning of section 2(1)(g) of the Act which should have been deemed to have resulted in permanent partial disablement of the nature (Downloaded on 05/06/2021 at 02:13:07 PM) (10 of 24) [CMA-753/2006] referred to in item 3 of Part II of Schedule I of the Act. This argument has been advanced on the ground that the amputation was from 8" from tip of acromion and less than 41/2" below tip of olecranon. As will appear, there is no force in this argument.
5. The expression "total disablement" has been defined in section 2(i) (1) of the Act as follows:
"(1) "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." 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."
This is obviously a reasonable and correct finding. Counsel for the appellant has not been able to assail it on any ground and it does not require to be corrected in this appeal. There is also no justification for the other argument which has been advanced with reference to item 3 of Part II of Schedule I, because it was not the appellant's case before the Commissioner that amputation of the arm was from 8"
from tip of acromion to less than 41/2" below the tip of olecranon. A new case cannot therefore be allowed to be set up on facts which have not been admitted or established.
6. It has next been argued that the Commissioner committed serious error of law in imposing a penalty on the appellant under section 4A(3) of the Act as the (Downloaded on 05/06/2021 at 02:13:07 PM) (11 of 24) [CMA-753/2006] compensation had not fallen due until it was 'settled' by the Commissioner under section 19 by his impugned order dated May 6, 1969. There is however no force in this argument.
7. Section 3 of the Act deals with the employer's liability for compensation. Sub-section (1) of that section provides that the employer shall be liable to pay compensation if "personal injury is caused to a workman by accident arising out of and in the course of his employment."
It was not the case of the employer that the right to compensation was taken away under sub-section (5) of section 3 because of the institution of a suit in a civil court for damages, in respect of the injury, against the employer or any other person. The employer therefore became liable to pay the compensation as soon as the aforesaid personal injury was caused to the workman by the accident which admittedly arose out of and in the course of the employment. It is therefore futile to contend that the compensation did not fall due with after the Commissioner's order dated May 6, 1969 under section 19. What the section provides is that if any question arises in any proceeding under the Act as to the liability of any person to pay compensation or as to the amount or duration of the compensation it shall, in default of a agreement, be settled by the Commissioner. There is therefore nothing to justify the argument that the employer's liability to pay compensation under section 3, in respect of the injury, was suspended until after the settlement contemplated by section 19. The appellant was thus liable to pay compensation as soon as the aforesaid personal injury was caused to the appellant, and there is no justification for the argument to the contrary.
8. It was the duty of the appellant, under section 4A(1) of the Act, to pay the compensation at the rate provided by section 4 as soon as the personal injury was caused to the respondent. He failed to do so. What is worse, he did not even make a provisional payment under sub-
(Downloaded on 05/06/2021 at 02:13:07 PM)(12 of 24) [CMA-753/2006] section (2) of section 4 for, as has been stated, he went to the extent of taking the false pleas that the respondent was a casual contractor and that the accident occurred solely because of his negligence. Then there is the further fact that he paid no heed to the respondent's personal approach for obtaining the compensation. It will be recalled that the respondent was driven to the necessity of making and application to the Commissioner for settling the claim, and even there the appellant raised a frivolous objection as to the jurisdiction of the Commissioner and prevailed on the respondent to file a memorandum of agreement setting the claim for a sum which was so grossly inadequate that it was rejected by the Commissioner. In these facts and circumstances, we have no doubt that the Commissioner was fully justified in making an order for the payment of interest and the penalty.
9. The appeal fails and is dismissed."
6.2 Learned counsel for the respondents/claimants have relied upon the judgment of the Hon'ble Apex Court in the case of K. Janardan vs. U.I.I. Ltd. and Anr. reported in 2008(2) ACTC 952, wherein the Hon'ble Apex Court has held that while computing compensation under the WC Act for a driver whose right leg was amputated upto knee joint, it is to be considered that he was suffering from 100% disability even when it was a scheduled injury which indicated only 50% disability, as this disability rendered him unfit for work of driver. The judgment reads as follows :-
"1. This appeal is directed against the judgment and order dated 6th October, 2001 of the learned Single Judge of the Karnataka High Court whereby compensation of Rs.2,49,576/- awarded by the Commissioner for Workmen's (Downloaded on 05/06/2021 at 02:13:07 PM) (13 of 24) [CMA-753/2006] Compensation has been reduced to Rs.1,62,224.40/-. It arises from the following facts.
2. The claimant- appellant a tanker driver, while driving his vehicle from Ayanoor towards Shimoga met with an accident with a tractor coming from the opposite side. As a result of the accident, the appellant suffered serious injuries and also an amputation of the right leg up to the knee joint. He thereupon moved an application before the Commissioner for Workmen's Compensation praying that as he was 25 years of age and earning Rs. 3,000/- per month and had suffered 100% disability, he was entitled to a sum of Rs. 5 lac by way of compensation. The Commissioner in his order dated 18th November, 1999 observed that the claimant was 30 years of age and the salary as claimed by him was on the higher side and accordingly determined the same at Rs. 2000/- per month. The Commissioner also found that as the claimant had suffered an amputation of his right leg up to the knee, he was said to have suffered a loss of 100% of his earning capacity as a driver and accordingly determined the compensation payable to him at Rs. 2,49,576/- and interest @ 12% p.a. thereon from the date of the accident. An appeal was thereafter taken to the High Court by the Insurance Company - respondent. The High Court accepted the plea raised in appeal that as per the Schedule to the Workmen's Compensation Act, the loss of a leg on amputation amounted to a 60% reduction in the earning capacity and as the doctor had opined to a 65% disability, this figure was to be accepted and accordingly reduced the compensation as already mentioned above. It is in this circumstance, that the aggrieved claimant has come up to this court.
3. The learned counsel for the appellant has raised only one argument during the course of the hearing . He has submitted that the claimant - appellant being a tanker driver, the loss of his right leg ipso facto meant a total disablement as understood in terms of Section 2(1)(e) of the (Downloaded on 05/06/2021 at 02:13:07 PM) (14 of 24) [CMA-753/2006] Workmen's Compensation Act and as such the appellant was entitled to have his compensation computed on that basis. In support of this plea, the learned counsel has placed reliance on Pratap Narain Singh Deo vs. Srinivas Sabata & Anr. (1976) 1 SCC 289. The cited case pertained to a carpenter who had suffered an amputation of his left arm from the elbow and this court held that this amounted to a total disability as the injury was of such a nature that the claimant had been disabled from all work which he was capable of performing at the time of the accident. It was observed as under:
5. The expression "total disablement" has been defined in Section 2(1)(e) of the Act as follows:
"(1) `total disablement' means such disablement whether of a temporary or permanent nature, as incapacitates workman for all work which he was capable of performing at the time of the accident resulting in such disablement."
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."
This is obviously a reasonable and correct finding. Counsel for the appellant has not been able to assail it on any ground and it does not require to be corrected in this appeal. There is also no justification for the other argument which has been advanced with reference to Item 3 of Part II of Schedule 1, because it was not the appellant's case before the Commissioner that amputation of the arm was from 8" from tip of acromion to less than 4 below the tip of olecranon. A new case cannot therefore be allowed to be set up on facts which have not been admitted or established.
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4. Applying the ratio of the cited judgment to the facts of the present case we are of the opinion that the appellant herein has also suffered a 100% disability and incapacity in earning his keep as a tanker driver as his right leg had been amputated from the knee. Additionally, a perusal of Sections 8 and 9 of the Motor Vehicles Act 1988 would show that the appellant would now be disqualified from even getting a driving licence.
5. We therefore allow this appeal, set aside the judgment of the High Court and restore that of the Commissioner but with no order as to costs."
6.3 Learned counsel for the respondents/claimants have relied upon the judgment of this Court in the case of Lal Singh Rajput vs. Ram Singh Rajput & Anr. reported in 2017(3) DNJ (Raj.) 1073, wherein this Court has laid down the law that the quantum of compensation as provided in Schedule-I and in one of the entry (which was entry 22 in the case) due to amputation of one feet was adjudged as 50% disablement of earning capacity but has been taken by the Court as 100% loss in the earning capacity and the compensation assessed was as per 100% disability. This Court while allowing the appeal has relied upon the judgment of Kerala State Electricity Board & Anr. Vs. Valsala K. & Anr. etc. reported in AIR 1999 SC 3502. Relevant paras no.14 and 15 of the judgment of this Court reads as follows :-
"14. So far as the quantum of compensation and award to the appellant as per Schedule-I of the Act is concerned, the Schedule-I provides under Entry-22 of Part-II that amputation of one feet resulting in end-bearing, the percentage of loss of earning capacity would be 50%, however, Hon'ble Supreme Court in the case of S. Suresh (supra) in a similar nature case where the right leg of the appellant therein was amputed below the knee, came to the (Downloaded on 05/06/2021 at 02:13:07 PM) (16 of 24) [CMA-753/2006] conclusion that since the appellant was rendered unfit for work of a driver which he was performing at the time of accident, he had lost 100% of his earning capacity and, therefore, he was entitled to compensation at 100%.
15. The said judgment in the case of S. Suresh (supra) would apply on all force to the facts of the present case and in view thereof, the appellant would be entitled to claim 100% loss of earning capacity."
6.4 Learned counsel for the respondents/claimants have relied upon the judgment of this Court in the case of Chandi Dan Charan vs. Jitendra Singh Parihar & Anr. reported in 2017(4) DNJ (Raj.) 1564, in which this Court has considered 30% disability of the driver to be that of 100% on account of the injuries to his right eye, right shoulder and other parts of body, particularly, he lost his right eye forever. The relevant paras no.7, 8, 9 14 and 15 whereof reads as follows :-
"7. On hearing the parties, after evidence was led, the Commissioner came to the conclusion that the delay in filing the application was liable to be condoned, despite dismissal of application by the Tribunal, the claim application under the Employee's Compensation Act, 1923 ('the Act') was maintainable. The accident arose out of and in the course of employment, the claimant suffered permanent loss of vision on account of injuries suffered by him during the altercation, which took place. The Commissioner then came to the conclusion that though in Part-II of Schedule-I, the percentage of loss of earning capacity for the loss of vision of one eye is indicated as 30%, as the claimant cannot undertake the work as a driver, the loss was 100% and accepting the monthly salary of the claimant at Rs.4,000/- and applying a factor of 192.14, awarded compensation to the tune of Rs.4,61,136/-, awarded interest @ 12% per (Downloaded on 05/06/2021 at 02:13:07 PM) (17 of 24) [CMA-753/2006] annum from the date of application i.e. 07.09.2010 till the actual compensation was paid.
8. It is submitted by learned counsel for the appellant- claimant that the Commissioner committed error in awarding interest from the date of application and not from the date of accident, which was 05.06.2005 when the accident took place, resulting in, the appellant losing vision in his one eye. It was submitted that the provisions of Section 4A(3) of the Act envisage the award of interest from the date of accident and not from the date of application. Reliance in this regard was placed on judgment of Hon'ble Supreme Court in Saberabibi Yakubbhai Shaikh v. National Insurance Co. Ltd. & Ors.: (2014) 2 SCC 298.
9. Learned counsel appearing for the Insurance Company besides contesting the plea regarding the payment of interest submitted that that the accident did not occur in the course of employment as admittedly the altercation took place out side the vehicle and, therefore, the claimant was not entitled to award of any compensation. It was argued that as the appellant-claimant had approached the Commissioner after a passage of five years, the Insurance Company cannot be saddled with the liability for payment of interest for the said period. It was also submitted that admittedly as per Part-II of Schedule-I of the Act, the percentage of loss of earning capacity for the loss of vision in one eye has been indicated as 30% and as the claimant despite loss of vision in one eye is capable of undertaking other work, the determination by the Commissioner awarding compensation at 100% is factually incorrect.
14. In so far as the determination of the disability of the claimant at 100% by the Commissioner is concerned, the issue raised is no more res integra as in the case of Pratap Narain Singh Deo v. Shrinivas Sabata : 1976 ACJ 141, Hon'ble Supreme Court laid down that a total disablement would result, which renders a person incapable of performing duties, which he was performing at the time of accident. The (Downloaded on 05/06/2021 at 02:13:07 PM) (18 of 24) [CMA-753/2006] said view was followed in the case of K. Janardhan v. United India Insurance Co. Ltd.: 2008 ACJ 2039, wherein on amputation of the right leg of a Tankerdriver, it was laid down that the same would amount to 100% disablement. Again in the case of Jakir Hussein v. Sabir : 2015 ACJ 721, Hon'ble Supreme Court in case where the right hand of the claimant-driver was completely crushed and deformed, when the disablement was determined at 55%, laid down that the same would be 100%.
15. The submission that as despite losing vision in one eye, the appellant is capable of undertaking some other work, therefore, it cannot be said that he suffered 100% disablement, has no substance in view of the law laid down by Hon'ble Supreme Court, wherein the test essentially pertains to whether the claimant is able to undertake the same work, which he was undertaking though with reduced ability and as after losing vision in one eye, the appellant cannot undertake the work as a driver, the disablement is 100% and, therefore, the finding of the Commissioner in this regard cannot be faulted."
(Emphasis Supplied) 6.5 Learned counsel for the respondents/claimants have relied upon the judgment of this Court in the case of Iffco Tokio General Insurance Co. Ltd. vs. Iqbal Aziz & Anr. reported in 2018(1) ACTC (Raj.) 279, relevant paras no.7 and 8 whereof reads as follows :-
"7. The Hon'ble Supreme Court recently in the case of Golla Rajanna etc. Vs. The Divisional Manager & Another, reported in 2017 (1) RAR 35 (SC) has held as under:-
"9. Section 30 of the Act provides for appeals to the High Court. To the extent, the provision reads as follows:(Downloaded on 05/06/2021 at 02:13:07 PM)
(19 of 24) [CMA-753/2006]
30. Appeals.-(1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely:
(a) an order awarding as compensation a lump sum whether by way of redemption of a half-
monthly payment or otherwise or disallowing a claim in full or in part for a lump sum;
[(aa) an order awarding interest or penalty Under Section 4A;]
(b) an order refusing to allow redemption of a halfmonthly payment;
(c) an order providing for the distribution of compensation among the dependants of a deceased workman, or disallowing any claim of a person alleging himself to be such dependant;
(d) an order allowing or disallowing any claim for the amount of an indemnity under the provisions of Subsection (2) of Section 12; or
(e) an order refusing to register a memorandum of agreement or registering the same or providing for the registration of the same subject to conditions:
Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal and, in the case of an order other than an order such as is referred to in Clause (b), unless the amount in dispute in the appeal is not less than three hundred rupees: (Emphasis supplied)
10. The Workmen's Compensation Commissioner, having regard to the evidence, had returned a finding on the nature of injury and the percentage of disability.
It is purely a question of fact. There is no case for the insurance company that the finding is based on no evidence at all or that it is perverse.
Under Section 4(1)(c)(ii) of the Act, the percentage of permanent disability needs to be assessed only by a qualified medical practitioner. There is no case for the Respondents that the doctor who issued the disability certificate is not a qualified medical practitioner, as defined under the Act. Thus, the Workmen's Compensation Commissioner has passed the order based on the certificate of disability issued by the doctor and which has been duly proved before the Workmen's Compensation Commissioner.
11. Under the scheme of the Act, the Workmen's Compensation Commissioner is the last authority on facts. The Parliament has thought it fit to restrict the scope of the appeal only to (Downloaded on 05/06/2021 at 02:13:07 PM) (20 of 24) [CMA-753/2006] substantial questions of law, being a welfare legislation. Unfortunately, the High Court has missed this crucial question of limited jurisdiction and has ventured to re-appreciate the evidence and recorded its own findings on percentage of disability for which also there is no basis. The whole exercise made by the High Court is not within the competence of the High Court Under Section 30 of the Act.
(Emphasis Supplied)
8. The Hon'ble Supreme Court in the matter of Saberabibi Yakubbhai Shaikh and Ors. vs. National Insurance Co. Ltd. and Ors., reported in 2014 (2) SCC 298 has held as under:-
"10. In view of the aforesaid settled proposition of law, the appeal is allowed and the judgment and order of the High Court is set aside. The Appellants shall be entitled to interest at the rate of 12% from the date of the accident. No cost."
Learned counsel for the respondents/claimants submit that out of this precedent law, they want to bring home the point that once the view has been taken by the Workmen's Compensation Commissioner which is based on factual matrix, then it was Parliamentary Legislative mechanism that though it fit to restrict the scope of the appeal only to substantial questions of law rather to re-appreciate the evidence and record its own findings on percentage of disability.
6.6 Learned counsel for the respondents/claimants have also relied upon the judgment of this Court in the case of Bajaj Allianz General Insurance Company Ltd. vs. Devi Lal & Anr.
reported in 2010(2) ACTC (Raj.) 635, wherein 100% disablement was rightly allowed on account of amputation of leg by following the precedent law in Pratap Narain Singh Dev (supra).
6.7 Learned counsel for the respondents/claimants have relied upon the judgment of North East Karnataka Road (Downloaded on 05/06/2021 at 02:13:07 PM) (21 of 24) [CMA-753/2006] Transport Corporation vs. Smt. Sujatha reported in MACD 2019(1) (SC) 19, wherein the Hon'ble Apex Court has held that the judgments of National Insurance Company Ltd. vs. Mubasir Ahmed & Anr. reported in (2007) 2 SCC 349 and Oriental Insurance Company Limited vs. Mohd. Nasir and another (supra) have been declared per incuriam and the law laid down in Pratap Narain Singh's case (supra) has been held as correct law.
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;(Downloaded on 05/06/2021 at 02:13:07 PM)
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(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 ofcourse be taken care of by assessing the loss of earning capacity as per the certificate issued by the qualified medical practitioner.
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 (Downloaded on 05/06/2021 at 02:13:07 PM) (23 of 24) [CMA-753/2006] 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).
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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 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.
(DR. PUSHPENDRA SINGH BHATI), J.
106-Sphophaliya/-
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