Andhra HC (Pre-Telangana)
K. Nageswara Rao vs B. Nagamalleswari And Anr. on 22 November, 2006
Equivalent citations: 2007(2)ALD762, 2007 LAB. I. C. 1654, 2007 (3) AJHAR (NOC) 842 (A.P.) = 2007 LAB. I. C. 1654, (2007) 113 FACLR 745, (2008) 1 TAC 603, (2007) 2 CURLR 507, (2008) 4 ACC 97, (2007) 2 ANDHLD 762
ORDER C.Y. Somayajulu, J.
1. Appellant who suffered injuries during the course of his employment with the first respondent as driver of the lorry belonging to the first respondent made a claim under Section 4 of the Workmen's Compensation Act, 1923 (the Act), before the Commissioner for Workmen's Compensation seeking compensation of Rs. 2,50,000/- and examined himself and a Doctor on his behalf and marked Exs.A.l to A.4. No evidence either oral or documentary was adduced on behalf of both the respondents. The Commissioner held that the appellant is entitled to a compensation of Rs. 59,237/- from the respondent. Dissatisfied with the compensation awarded to him, appellant preferred this appeal seeking higher compensation.
2. The contention of the learned Counsel for appellant is that inasmuch as the appellant suffered permanent disability which incapacitates him from working as lorry driver, the Commissioner was in error in assessing his disability at 25% instead of taking it as 100%, by placing strong reliance on Pasupuleti Ramarao v. Pothinaboina Durgarao , following the ratio in National Insurance Company Ltd. v. Mohd. Saleem Khan . The contention of the learned Counsel for second respondent is that inasmuch as the evidence of the Doctor who assessed the disability of the appellant shows that the appellant suffers only 25% permanent disability and clearly stated that the appellant can drive light motor vehicles, and since the injuries suffered by the appellant are not scheduled injuries, the assessment made by a qualified medical practitioner can be taken into consideration for arriving at the compensation payable to the appellant and relied on National Insurance Co., Ltd., Ananthapur v. D. Sivasankar , in support of the said contention. He also contended that the appeal is not maintainable as no substantial question of law arises for consideration in this appeal.
3. Section 4 of the Act was amended in 1984 by Act 22 of 1984 with effect from 1.7.1984 laying down that in the case of an injury not specified in Schedule I, the compensation payable would be in proportion to the loss of earning capacity as assessed by a qualified Medical Practitioner; in the case of permanent total disablement, Explanation II to Section 4(1 )(c) requires the qualified Medical Practitioner taking into consideration the loss of earning capacity vis-a-vis the injuries specified in Schedule I.
4. Pasupuleti Ramarao's case (supra), was decided relying on Mohd. Saleem Khan's case (supra), which was decided following the judgment of the apex Court in Pratap Narain Singh Deo v. Srinivas Sabata , which was rendered prior to the amendment of the Act by Act 22 of 1984. A learned Judge of this Court in New India Assurance Co., Ltd. v. Sammayya , considered the effect of the amendment made by the Amendment Act 22 of 1984, and held that the assessment of loss of earning capacity of the workman before the Commissioner by a qualified Medical Practitioner is not a 'must' but only a discretionary and that the meaning of 'permanent' or 'partial disablement' and 'loss of earning capacity' are not one and the same, and if evidence is adduced only to show the 'partial' or 'permanent total disablement' but not with regard to the actual 'loss of earning capacity', the Commissioner cannot straightaway conclude that the loss of earning capacity of the workman is equal to the percentage of permanent or partial total disablement, and that after the Amendment Act 22 of 1984 came into force, assessment of loss of earning capacity in addition to the determination of the extent of permanent or partial total disablement, has become a 'must'.
5. In Mohd. Saleem Khan's case (supra), the injured was a truck driver. The injuries sustained by him resulted in impairment of his physical functions upto 50%. So, it was held that he is not fit to drive any heavy vehicle. The Tribunal awarded compensation on the basis that it is a case of a permanent total disability. In appeal to this Court against that award, it was contended that inasmuch as the disability of the injured was only up to 50%, the Tribunal erred in awarding compensation on the basis that he sustained 100% disability. The learned Judge following the ratio in Pratap Narain Singh Deo's case (supra) and Punambhai Khodabhai Parmar v. G. Kenel Constructions 1984 ACJ 739, dismissed the appeal.
6. In Pratap Narain Singh Deo's case (supra), the injured was a carpenter. He suffered an injury, which resulted in amputation of his left forearm. Since he was a carpenter it was held that amputation of his arm resulted in 100% permanent disability.
7. In Punambhai Khodabhai Parmar's case (supra), the truck driver suffered a permanent disability in fingers of his right hand, right elbow and right thigh, which incapacitated him to work as a driver. The Commissioner awarded compensation on the basis that he sustained only a partial permanent disability. On appeal by the injured, preferred in 1982, a Division Bench of the Gujarat High Court held that disability of the victim has to be judged from the point of view of the job which he was doing at the time of the accident, and as the victim in that case became incapacitated to work as a driver, he is entitled to compensation on the basis that he suffered 100% disability, following the ratio in Pratap Narain Singh Deo's case (supra). Both the cases referred to and relied on by the learned Judge in Mohd. Saleem Khan's case (supra), are cases decided prior to the coming into force of Act No. 22 of 1984 amending the Act. But, that fact was not kept in view by the learned Judge, though the case before him was of the year 1987. In Pasupuleti Ramarao's case (supra), also the learned Judge did not keep in view the fact that there is an amendment to Section 4 of the Act in 1984 and followed the ratio in Mohd. Saleem Khan's case (supra), which was decided basing on the decisions that were rendered prior to the amendment to Section 4 of the Act by Act 22 of 1984.
8. In D. Sivasankar's case (supra), the learned Judge held that the 'disability' or 'loss of earning capacity' must not be assessed exclusively with reference to the work or employment, which the employee was discharging at the relevant point of time, because the definition of the words 'partial disablement' and 'total disablement' in Section 2 of the Act indicate that it is the incapacity suffered by the employee to do "all work which was capable of performing", and not a specific work that he was engaged in at the time of the incident occurred, that will have to be taken into consideration, and so the consideration cannot be confined to the employment in which the employee was placed, when he received the injury, and the fact that the employee is capable of doing any other work perfectly notwithstanding the disability to continue in the same employment in which he was engaged is a relevant factor to be taken into account.
9. In this case, the evidence of the Doctor examined by the appellant shows that the appellant can drive light motor vehicle and that all the injuries of the appellants have healed. So, merely because, the doctor stated in his chief-examination that the appellant can drive vehicles for short distances but not longer distances, it cannot be said that the appellant has lost his earning capacity in toto. Since the pay of a driver of a light motor vehicle will be less than the pay of a driver of a heavy motor vehicle, in the facts and circumstances of the case, the loss of earning capacity of the I appellant can be fixed at 35%.
10. The contention of the learned Counsel for second respondent that this appeal is not maintainable has no substance, because the appeal was admitted on the basis that there is a substantial question of law. Question whether the Commissioner can assess compensation without taking into consideration the loss in earning capacity, merely on the basis the appellant has a permanent disability, is a substantial question of law.
11. Commissioner took the wage of the appellant as Rs. 2,000/- per month and his age as 35 years. Those findings are not denied or disputed by the respondents. So, the appellant is entitled to Rs. 1,000 x 35/100 x 197.06 : Rs. 68,971/- as compensation from the respondents. The point is answered accordingly.
12. The contention of the learned Counsel for second respondent is that the Commissioner was in error in awarding the rate of interest at 12% per annum. If the second respondent felt aggrieved by the order awarding interest at 12% per annum, it should have preferred an appeal, questioning the same. But it cannot in an appeal preferred by the victim contend that the Commissioner erred in awarding interest at a higher rate.
13. In the result, the appeal is allowed in part. An award is passed in favour of the appellant against die respondents for Rs. 68,971/- with interest at 12% per annum on Rs. 5 9,23 7/- as awarded by the Tribunal and with interest at 9% per annum on Rs. 9,734/- awarded in this appeal from this day till the date of deposit into Court with proportionate costs before the Tribunal. Rest of the claim of the appellant is dismissed without costs. Parties are directed to bear their own costs in this appeal.