Andhra HC (Pre-Telangana)
Lingampalli Rajam (Died) By Lrs. vs Colliery Manager, Morgan'S Pit ... on 7 November, 1999
Equivalent citations: II(2000)ACC425, 2000(1)ALD554, 2000(2)ALT115, [2000(85)FLR761]
ORDER
1. This appeal is directed against the order dated 6-12-1991 in WC Case No.56 of 1990 of the Commissioner for Workmen's Compensation, Warangal aggrieved by the award of compensation at Rs.2,924/-.
2. The first appellant is the workman under the services of the respondent-Company. He died on 11-6-1996 and his legal representatives are brought on record vide order of this Court dated 27-11-1998 in CMP No.23242 of 1998 as appellants 2 to 4.
3. The brief facts of the case as narrated in claim petition are that the deceased-first appellant, who was employed in Singareni Collieries Company Limited as Trammer met with an accident on 26-7-1987 at about 6 a.m. during the course of his employment in Morgan's pit when full tub jumped from rails and hit the right leg resulting in compound fracture of both ankle and hips of right leg. As a result of the accident his leg was shortened by 4" and a plate was inserted into his leg and he became toatally disabled thereby resulting in loss of 100% earning capacity. His services were terminated by the respondent-Company with effect from 31-1-1989 as he was medically unfit for underground job. He made an application on 22-4-1990 under Section 4 of the Workmen's Compensation Act claiming compensation of Rs. 1,04,101.20 ps. He was aged 50 years at the time of the accident and was drawing monthly salary of Rs.1700/-.
4. The respondent-Company filed a counter-affidavit admitting the injuries sustained by the petitioner to this right leg during the course of employment in the third shift of 25-7-1987. It is stated in the counter-affidavit that the workman himself was responsible for the accident since he attempted to travel on a running set which was prohibited by Coal Mine Regulations. He was given necessary treatment for which the management spent a sum of Rs.40,000/-and also paid full wages of Rs.28,551.50 ps. during the period of treatment. It is further stated that the workman's wife was provided employment in the company in view of his disability and medical unfitness to take up the job.
5. Before the Court below the workman examined himself as PW1 and he deposed in the same manner as stated in the claim petition. None were examined on behalf of the employer but Ex.R1, the medical report of the injured workman was marked on their behalf. On the basis of the pleadings and evidence on record, the Commissioner assessed the compensation payable at Rs.2,924/-. Aggrieved by the same, the present appeal.
6. Sri G. Vidyasagar, the learned Counsel for the appellant vehemently contended that the approach of the Commissioner for Workmen's Compensation, Warangal is not in accordance with law and he committed an error in not awarding appropriate compensation. According to him, the assessment made by the Commissioner that the disability is to the extent of 4% without considering the loss of earning capacity is incorrect and not inaccordance with the provisions of the Act since it is clear from Ex.Rl, the medical report, wherein the Board declared that the workman is unfit to work as Trammer in view of the total disability, that the loss of earning capacity is 100%. To substantiate his contention he has drawn my attention to the definitions under Section 2(g) and (1) of the Act, which are as follows:
"2(g) 'partial disablement'' means, where the disablement is of a temporary nature, such disablement has reduced the earning capacity of 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 has reduced 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.
2(1) "total disablement' means such disablement, whether of a temporary or permanent nature, has 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 thereto where the aggregate per cent of the loss of earning capacity, as specified in the said Part II against those injuries, amounts to 100% or more."
7. The learned Counsel contends that for the purpose of partial disablement, the disablement must result in reduction of earning capacity of a workman in anyemployment. In the instant case, there is no reduction in the earning capacity of workman but he became totally unfit to work as a Trammer and hence the definition 'total disablement' under Section 2(1) of the Act is attracted. Another aspect that has been brought to the notice of the Court is regarding the loss of earning capacity. The disablement incapacitated the workman for all work he was capable of performing at the time of the accident thereby resulting in 100% loss of earning capacity. In support of his contention . he has drawn my attention to a decision of the Supreme Court in Pratap Narain Shigh Deo v. Shrinivas Sabata, . In tliat case the Supreme Court while considering the nature of duties performed by the workman as carpenter held that by virtue of loss of his left hand above the elbow he is unfit for the work of carpentry and therefore the disablement is total attracting the provisions under Section 2(1) of the Act. For the same proposition of law he relied upon a decision of Kcrala High Court in Kuchuvelu v. Purakkaftti Joseph, 1984 ACJ 630. For the proposition of law that permanent disablement has to be judged from the point of view of the job the workman was doing, the learned Counsel has drawn my attention to a decision of a Division Bench of Gujarat High Court in Punambfiai Khodabhai Parmar v. G. Kama! Construction, 1985 (1) LLJ 98. In that case the Court came to the conclusion that the workman, who is a driver, became unfit of perform his duty since he suffered permanent and total disablement on account of amputation of his left arm. He also relied upon a ruling of this Court in New India Assurance Company v. Kotam Appa Rao, 1995 (3) ALD 1108, wherein this Court while considering the case of an injured driver who sustained fracture of right thigh and right hand apart from other injuries and the doctor certified that he is not fit to drive the vehicle any longer, held that the disablement cannot be treated as partial disablement on the ground that the doctor noted the disability as 50%. While decidingthe above case (he learned Judge relied upon a decision of this Court in National Insurance Company Limited v. Mohd. Saleem Khan, , in which case the learned Judge held that though disability was assessed as 50% by the doctor, since the inured became unfit to perform his job which resulted in 100% loss of earning capacity, the disablement is total attracting the provisions of Section 2(1) of the Act.
8. On the other hand, Counsel for the respondent Sri James contended that the doctor issued medical certificate Ex.R1 assessing the disability at 4% basing on which the Commissioner for Workmen's Compensation rightly awarded compensation at Rs.2,924/-. He has also drawn my attention to proviso under Section 2(1) of the Act and contended that the definition of total disability has to be read not in isolation but with reference to the injuries specified in Part I or Part il thereof or from any combination of injuries specified in part II thereof. He also contended that if the injury of the workman does not fall under the specified injuries and it incapacitates the workman for all work he was capable of performing at the time of the accident, that by itself cannot be treated as total disablement and in such situation the disablement as assessed by the doctor alone has to be taken as criteria. In support of his contention he relied upon a decision of the Supreme Court in MGT of T.N. Corporation Limited v. N. Jayapalan, 1994 (1) LLJ 838, which is to the effect that percentage of disability as assessed by the doctor alone should be the criteria for the purpose of determining the compensation. Another decision cited by the learned Counsel in David v. Govindchandra Mishra, 1997 LIC 1846, is to the same effect.
9. In the instant case, the medical report Ex.Rl clearly indicates that the workman became unfit to work as Trammer in view of the nature of the injuries i.e.,shortening of leg by 1/2" and stiffness of ankle. Further, no other appointment or work was offered to the workman and the Management straightaway resorted to termination incapacitating him to 100% loss of earning capacity. Though the degree of disability is not the criteria but by virtue of nature of injuries if the workman is declared unfit to perform his duties and on account of the disability loss of earning is 100%, necessarily the disablement has to be treated as permanent attracting the provisions of Section 2(1). In the present case declaring the workman unfit to perform the duties as Trammer on account of disablement which resulted in cent per cent loss of earning capacity and at the same time treating the disablement as partial, is contrary to the definition as contemplated under Section 2(g) of the Act. Further, mere offering of employment to the wife of the workman does not relinquish his right to receive compensation. For the reasons stated supra, in order to assess the compensation under Section 4(b) of the Act in respect of permanent disability resulted from the injury, 50% of the wages of the workman has to be taken into account and it should be multiplied by the relevant factor. In the present case, the monthly salary of the workman is Rs.1700/-, 50% of which comes to Rs.85Q/- and taking into account the age of the workman, which is 50 years, the relevant factor to be applied is ] 53.09. Applying the said relevant factor to Rs.850/-, the approximate compensation comes to Rs.1,30,096/-. However, in view of the fact that the claim of the workman in the claim petition before the Commissioner for Workmen's Compensation is only Rs.1,04,101/-, I restrict the compensation payable to the extent of the claim.
10. Accordingly, the order of the Commissioner for Workmen's Compensation, Warangal is hereby set aside and the compensation payable to the workman is enhanced from Rs.2,924/- to Rs.1,04,101/-together with interest at 6% per annum fromthe date of the accident till the date of realisation. The appeal is allowed. There shall be no order as to costs.