Chattisgarh High Court
Branch Manager, The New India Assurance ... vs Rajendra Kumar Mandle 5 Mac/369/2013 ... on 29 November, 2019
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
M.A.(C) No.833 of 2015
Reserved on 14.11.2019
Pronounced on 29.11.2019
Branch Manager, The New India Assurance Company Limited Branch Office-
Bhilai, Above Dena Bank, Nandanee Road, Bhilai 451201, Tah. And District-
Durg, Chhattisgarh, Chhattisgarh
---- Appellant
Versus
1. Rajendra Kumar Mandle S/o Ahri Sitaram Mandle Aged About 31 Years R/o
Village Urpuree, Tah. And District- Durg, Chhattisgarh, Chhattisgarh
2. Shri Raju Goutam S/o Shri Sant Prasad Goutam R/o Link Road, Camp-2,
Beside Balaji Tainthouse, Bhilai, P.O.- Supela, Tah. And District- Durg,
Chhattisgarh, District : Durg, Chhattisgarh
---- Respondents
For Appellant: Shri Dashrath Gupta, Advocate.
For Respondent No.1: Shri Abhishek Sharma, Advocate.
For Respondent No.2: None, though served.
Single Bench: Hon'ble Shri Sanjay S. Agrawal, J
C A V Award
1. This Miscellaneous Appeal has been preferred under Section 30 of the Employee's Compensation Act, 1923 (for short 'the Act of 1923') by Non- Applicant No.2-New India Assurance Company Limited questioning the legality and propriety of the award dated 14.05.2015 passed by the Commissioner for Employee's Compensation, Labour Court, Rajnandgaon (for short 'the Commissioner') in Case No.15/W.C Act/2010, by which, the Commissioner has allowed the Claim Petition by awarding a sum of Rs.1,99,661/- with 12% interest per annum from the date of filing of the Claim Petition till its realization. The parties to this Appeal shall be referred hereinafter as per their 2 description in the Labour Court.
2. Briefly stated, the facts of the case are that on 01.06.2008, the Claimant, as per the instruction of his employer was going to Telinala by his Metador bearing its registration No.CG 04 G 8169 in order to fetch the wood. At the relevant time, when he was at GE Road, his vehicle was dashed vehemently from its opposite side by a tanker/truck bearing its Registration No.HR 38 H 3869, which was being driven in a rash and negligent manner by its driver. As a result of which, he sustained serious multiple injuries and his right knee got fractured and was admitted into the District Hospital, Rajnandgaon. According to him, he was working under the employment of one Raju Goutam, Non-Applicant No.1 as his driver and used to earn Rs.4,000/- per month along with daily allowance of Rs.100/- and has suffered permanent disability owing to the alleged accident giving rise to the institution of the Claim Petition under Section 22 of the Act of 1923.
3. Non-Applicant No.1 appeared upon receiving notice of the Claim Petition but was proceeded ex parte, while Non-Applicant No.2-the Insurance Company contested the claim by disputing the income of the Claimant and pleaded further that the Claimant has neither suffered permanent disability as alleged by him nor has become disabled to perform his work as a driver owing to the injuries suffered by him on account of the accident occurred on 01.06.2008.
4. After considering the evidence led by the parties, it has been held by the Commissioner that the Claimant, who was performing his duty as a driver under the employment of Non-Applicant No.1, has suffered permanent disability to the extent of 40% by relying upon the disability certificate (Ex.P-19A) owing to the injury suffered on account of the alleged accident. It 3 held further that the Claimant, a 30 year old, used to earn Rs.4,000/- per month while working as a driver under him. As a consequence, while taking recourse to the provision prescribed under Section 4(1)(c)(i) of the Act of 1923 and Column (2) of Schedule-IV framed thereunder, applied the relevant factor 207.98 and thus awarded total amount of compensation to the tune of Rs.1,99,661/- (4,000x60/100=2400x207.98x40/100=199660.80, rounded of to 1,99,661/-, with 12% interest p.a from the date of filing of the Claim Petition till its realization, which is required to be paid by Non-Applicant No.2 while imposing penalty upon the employer under Section 4-A of the Act of 1923 to the extent of 40% of it, i.e Rs79,864/-.
5. Being aggrieved, Non-Applicant No.2-New India Insurance Company Limited has preferred this Appeal, which is admitted for hearing vide order dated 19.08.2015 on the following substantial question of law:-
"Whether the Respondent No.1 can be held permanently disabled to the extent of 40% even after the license was renewed?"
6. Shri Gupta, learned Counsel for the Appellant submits that the order impugned as passed by the Commissioner holding that the Claimant has suffered permanent disability to the extent of 40% by relying upon the disability certificate (Ex.P-19A) is apparently contrary to law. While inviting attention to the alleged certificate, it is submitted that there was no remark made with regard to the kind of injury suffered by the Claimant and therefore, in absence of any document showing the treatment of the Claimant, it cannot be held that he suffered permanent disability to the extent of 40%. While referring to Claimant's license details (Ex.P-3) issued by the licensing authority of the concerned Regional Transport Office, Durg, it is contended further by him that 4 even after the alleged accident, the driving license of the Claimant has been renewed authorizing him to drive the transport vehicle, which came into force w.e.f 21.09.2011 up to 20.09.2014, while for non-transport vehicle, it was valid up to 16.05.2029. While inviting attention to these facts, it is submitted that the Claimant has not suffered any kind of permanent disability as alleged by him, however, without considering these material facts, the award impugned has been passed by the Commissioner assessing the amount of compensation under Section 4(1)(c) (i) of the Act of 1923. The award impugned is therefore, liable to be interfered.
7. On the other hand, Shri Abhishek Sharma, learned Counsel appearing for the Claimant, while supporting the award impugned submits that by virtue of the disability certificate (Ex.P-19A) issued by the Board, which establishes the fact that the Claimant has suffered permanent disability to the extent of 40% and therefore, the award impugned does not require to be interfered.
8. I have heard learned Counsel for the parties and perused the entire record carefully.
9. From perusal of the record, it appears that by relying upon the disability certificate (Ex.P-19A) issued by the District Medical Board, Rajnandgaon and the evidence of its Member namely Prakash Bhale Rao (AW-2), the Commissioner arrived at a conclusion that the Claimant has suffered permanent partial disability to the extent of 40% and consequent upon that the award impugned has been passed by taking recourse to the provision prescribed under Section 4(1)(c) (i) of the Act of 1923 while awarding the amount of compensation along with the interest and penalty as mentioned hereinabove.
10. In order to answer the substantial question of law framed, it is 5 necessary to examine the relevant provisions prescribed under Chapter II of the Act which deals with Workmen's Compensation (the word "Workmen's" is substituted by the word "Employee's" by the Workmen's Compensation (Amendment) Act, 2009. Section 3 of the Act provides that, if personal injury is caused to an employee by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of Chapter II. Section 4 of the Act provides as to how the compensation should be determined where the injuries have resulted in (a) death; (b) permanent total disablement; (c) permanent partial disablement (due to injuries specified in Part II of Schedule I of the Act or due to non- scheduled injuries); and (d) temporary disablement, whether total or partial.
11. Section 4(1) (a to c) of the Act, relevant for the purpose is reproduced herein as under:-
"4.Amount of compensation.-(1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely-
(a) where death results an amount equal to [fifty per cent.] from the injury of the monthly wages of the deceased [employee] multiplied by the relevant factor;
or an amount of [one lakh and twenty thousand rupees], whichever is more;
(b) where permanent total an amount of equal to [sixty per
disablement results from cent.] of the monthly wages of the
the injury injured [employee] multiplied by
the relevant factor;
[Provided that the Central Government may, by notification in the Official Gazette, from time to time, enhance the amount of compensation mentioned in clauses (a) and (b).] 6 Explanation I.- For the purposes of clause (a) and clause (b), "relevant factor", relation to [an employee] means the factor specified in the second column of Schedule IV against the entry in the first column of that Schedule specifying the number of years which are the same as the completed years of the age of the [employee] on his last birthday immediately preceding the date on which the compensation fell due.
(c) Where permanent partial (i) in the case of an injury specified in disablement results from Part II of Schedule I, such percentage of the injury. the 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 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;"
12. "Partial disablement" as provided under clause (c) of sub-section(1) of Section 4 of th Act is defined in Section 2(g) of the Act, which means that, where the disablement is of a temporary nature, such disablement as reduces the earning capacity of an employee 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 7 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.
13. Part I of Schedule I of the Act contains the list of injuries deemed to result in permanent total disablement. Section 4(1)(a) deals with determination of compensation where death results from the injury. Section 4(1)(b) deals with determination of compensation in cases where permanent total disablement results from employment injury, in which case the Commissioner has to determine whether the injury sustained by the employee has in fact resulted in permanent total disablement or not. There is no need to decide the percentage of loss of earning capacity as a consequence of such permanent total disablement, which it is assumed that the loss of earning capacity is 100% in cases where permanent total disablement results from the injuries specified in Part I of Schedule I of the Act. Therefore, Section 4(1)(b) does not contemplate any assessment of loss of earning capacity by a qualified medical practitioner.
14. However, Section 4(1)(c) of the Act, which deals with determination of compensation in cases where permanent partial disablement results from the injury, makes a distinction between the extent of 'physical disability' and the extent of 'loss of earning capacity'. In such cases compensation depends not on the extent of permanent partial disablement, but on the loss of earning capacity resulting from such permanent partial disablement. As per sub- clause (i) of Clause (c), where permanent partial disablement has arisen from the injuries specified in Part II of Schedule I, then the percentage of loss of earning capacity will be as specified in the said Schedule. On the other hand, sub-clause (ii) of clause (c) provides that, where permanent partial 8 disablement has arisen from the injuries which are not specified in Part II of Schedule I, i.e., 'non-scheduled' injuries, then the percentage of loss of earning capacity resulting therefrom has to be determined by the Commissioner, as assessed by the qualified medical practitioner.
15. Explanation I to Section 4(1)(c) of the Act states that, 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. Similarly, Explanation II states further that, in assessing the loss of earning capacity for the purpose 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.
16. In the case in hand, the Commissioner while taking recourse to the provision prescribed under Section 4(1)(c)(i) of the Act, has awarded the aforesaid amount of compensation on finding that the Appellant has suffered permanent physical disability to the extent of 40% by placing its reliance upon the disability certificate (Ex.P-19A). In order to examine the said finding of the Commissioner as to whether the Claimant has suffered permanent disability on account of the accident occurred on 01.06.2008 and entitled to get the amount of compensation under the said provision, it is necessary to examine the fact as to whether the Claimant has suffered such kind of injury or not. The disability certificate (Ex.P-19A) issued by the District Medical Board, Rajnandgaon was submitted by the Claimant and in support thereof, the Claimant has examined the Member of it namely Prakash Bhale Rao (AW-2). A bare perusal of the said certificate (Ex.P-19A) would show that the Claimant, 9 who was a driver, has suffered partial physical disability to the extent of 40%. However, a "Note" appended to it would show that while issuing the said certificate, the Board has not made any remarks with regard to the kind of injury sustained by the Claimant nor the condition of it is clear from the said certificate that as to whether it is "Progressive", "Non-Progressive" or "Likely to Improve" and the said fact has been admitted by Dr. Prakash Bhale Rao (AW-2) in his evidence as well. It is, therefore, difficult to understand that what kind of injury the Claimant has suffered owing to the alleged accident. Moreover, I do not find any document much less the X-ray report in order to ascertain the fact that the right knee of the Claimant was got fractured. Even he failed to examine the Doctor who treated him.
17. Pertinently to be noted here that the details of his driving license marked as Ex.D-3 issued by the Licensing Authority of the Regional Transport Office, Durg duly corroborated by one Satyendra Soni (NAW-1), Assistant Grade-III of the said Office would reveal the fact that the driving license of the Claimant has been renewed not only for a Transport Vehicle commencing w.e.f. 21.09.2011 up to 20.09.2014 but was also for the Non-Transport vehicle up to 16.05.2029. It is surprising enough to observe further that the evidence of this witness, vis-a-vis the said driving license (Ex.D-3) was not at all even taken into consideration by the Commissioner while considering the alleged disability of the Applicant. This material fact, which has not been considered by the Commissioner, cannot be overlooked. The Claimant is a driver and renewal of his driving license as such after the occurrence of the alleged accident would lead to an irresistible conclusion that no such permanent partial disability as alleged by him was caused to him. However, while ignoring this material fact, it was held by the Commissioner that the Claimant 10 has suffered permanent disability to the extent of 40%.
18. What is, therefore, reflected from the record that the injury sustained by the Applicant on account of the alleged accident was not the injury which is specified in Schedule I of the Act and, where the alleged disability caused to the Applicant results from such a non-scheduled injury, the Commissioner has to assess the compensation in terms of the provisions contained in sub-clause
(ii) of Section 4(i)(c) of the Act and not under sub-clause (i) of the said provision as done by the Commissioner. In such circumstances, the finding so recorded by the Commissioner cannot be held to be sustainable in the eyes of law and accordingly, the substantial question of law is answered in negative. It is thus held that the Claimant has not suffered permanent partial disability much less the disability to the extent of 40% so as to entitle him to get the amount of compensation under Section 4(1)(c) (i) of the Act of 1923. Consequently, the amount of compensation as assessed and awarded by the Commissioner by applying the relevant factor of 207.98 as mentioned by Column (2) of Schedule IV, framed under Section 4 of the Act of 1923, deserves to be and is hereby set aside.
19. In view of the foregoing discussions, the Claimant, although has not suffered permanent disability on account of the injury which is not specified in Scheduled I of the Act as observed hereinabove, but certainly he suffered some amount of injury owing to the alleged accident occurred on 01.06.2008. Consequently, while disposing of this Appeal and that by setting aside the award impugned passed by the Commissioner in Case No.15/W.C Act/2010, I hereby remand the matter back to the concerned Commissioner for the limited purpose to assess the loss of earning capacity of the Applicant/Claimant and to refix the amount of compensation based on such assessment, keeping in 11 mind the observations contained in this judgment. The parties are at liberty to adduce afresh/further evidence, if they are so advised and they are directed to remain present before the concerned Commissioner on 10.01.2020 for adjudication in the matter to the extent indicated hereinabove. No order as to costs.
20. Registry is directed to transmit the entire record to the concerned Court of Commissioner forthwith.
Sd/-
(Sanjay S. Agrawal) Judge Priya