Karnataka High Court
Syed Abdul Samad And Another vs Jabbar Hussain on 11 January, 2000
Equivalent citations: II(2000)ACC38, 2001ACJ574, [2000(85)FLR765], ILR2000KAR1437, 2000(2)KARLJ439, (2000)IILLJ391KANT
Author: K.R. Prasada Rao
Bench: K.R. Prasada Rao
JUDGMENT
1. This appeal is filed by the respondent against the judgment and award passed by the Commissioner for Workmen's Compensation, Davanagere, dated 20-4-1996, awarding compensation to the respondent-claimant by assessing the permanent disability at 100% due to the fracture of left hand sustained by him during the course of his employment while driving the lorry bearing No. MYK 6614.
2. I have heard the learned Counsel appearing on both sides.
3. Learned Counsel for the appellant submitted that the Medical Officer P.W. 2 who has examined the respondent-claimant has estimated the permanent disability suffered by the claimant at 40% and he has also given evidence to the effect that the respondent-claimant can drive the vehicle though not as effectively as he could drive prior to the date of accident. He therefore contended that the learned Commissioner has erred in drawing an inference from the evidence of the Dr. P.W. 2 that the claimant has suffered 100% disability and that it is not possible for him to drive any vehicle and in awarding compensation of Rs. 1,09,975/- on that basis. In support of his contention, he relied upon two latest decisions of this Court in Oriental Insurance Company Limited v Raju and Another, and Nisar Ahmed Abdul Rahiman Killedar v Babu-lal Achal Singh Raj Purohit and Another.
4. In reply to these contentions, learned Counsel for the respondent-claimant submitted that the Commissioner has correctly assessed the percentage of the permanent disability suffered by the claimant at 100% on account of the fact that he cannot drive any vehicle after the date of the accident. He relied upon a decision of this Court in Oriental Insurance Company Limited v Kashim and Another, wherein it was held that "where a driver is rendered unfit to drive the vehicle, as a result of the injuries sustained in the accident, the loss of earning capacity is to be fixed at 100% even though permanent physical disability is not that much". He also relied upon another decision of this Court in K.P. Hanu-mantha Gowda v Devaraju, wherein it was held as under:
"The total disablement should be assessed vis-a-vis the work the worker was carrying. If the worker, is disabled to perform all the work he was engaged to perform it amounts to total disablement. It is to be noted that the compensation is claimed under the Workmen's Compensation Act, 1923 by the worker as defined under the Act. That worker, due to the injury sustained by him, loses the capacity to do work, which capacity earned him the status of a worker under the employer. If so, the disablement that he suffers should be understood vis-a-vis the work he carried on or for which he was employed. If by the accident, he becomes totally disabled to carry on that work, as far as he is concerned, it is a total disablement. A driver employed is employed to drive. He is not to work as a sweeper or a manual labourer. If due to the accident, a driver becomes incapable of performing his duties as a driver there is total disablement as far as he is concerned. He will cease to be a driver under his employer and consequently a worker under that employer. The fact that he can do some other work elsewhere is no ground to state that he is not totally disabled. His disablement should be assessed with reference to the work he was employed to perform at the time of accident. His capacity to do some other type of work did not earn him the status of worker under the particular employer. If by the accident, the worker loses his employment under his employer, thereby ceases to be a worker as defined under the Act under that particular employer which employment brought him under the purview of the Act and the relationship of employer-worker is brought to an end, then that amounts to the "total disablement" contemplated under the Act. To repeat his capacity to do some other work either under the same employer or another employer or independently is of no consequence, it has to be remembered that a skilled worker, if by an accident is disabled to do the particular skilled work, may not be in a position to be employed as an unskilled worker in the same industry for a variety of reasons. He may be overaged or there may be opposition from other unskilled workers since the new employee may mar their employment prospects. Hence with the employee being disabled to carry the work for which he was originally employed, it will be a virtual exit from the establishment. It may be contradiction in terms if we are still to hold that there is no "total disablement" for the employee".
5. Placing reliance on the above decision, it is contended by him that the Commissioner was correct in drawing an inference from the evidence of Medical Officer that the respondent-claimant was totally disabled to work as a driver under the same employer and so, the disablement suffered by him is to be treated as the total disablement.
6. He also relied upon another decision of this Court in Mysore Sugar Company Limited, Mandya v B.T. Krishnamurthy, wherein it was held that "percentage of loss of earning capacity mentioned in Schedule I being minimum, Commissioner is vested with discretion to fix same at higher percentage depending upon facts and circumstances of case".
7. It is also submitted by him that the respondent is now not employed as driver with the same employer. Therefore, it is contended by him that the Commissioner has rightly treated the case of claimant as one of permanent disability and rightly estimated the compensation on that basis. But, it is pointed out by the learned Counsel for the appellants that, in the above decisions cited by him, learned Single Judge have taken a contrary view and it has been held in the case of Nisar Ahmed, supra, that "in case of partial disablement, even if the worker is not capable of performing that duty which he was performing at the time of the accident, such partial disablement cannot be considered as total disablement unless the injuries result in loss of earning capacity of 100% or more than 100% in aggregate as provided in Part II of Schedule I".
8. In another decision of this Court in Oriental Insurance Company Limited's case, supra, it was held that Permanent partial disablement-Compensation-Amputation of arm-Medical evidence that the workman suffered 80 per cent disability but was paid compensation at total disablement - Whether the workman who is a driver and has suffered partial disablement is entitled to compensation at 100 per cent disablement on the ground that the disability disqualified him from performing job of a driver - Held: no; he could earn by performing some other functions which would yield lower income"
9. Learned Counsel for the appellant has also cited a Division Bench decision of this Court in Divisional Manager, Karnataka State Road Transport Corporation v Bhimaiah, wherein it was held that "where the workman was a driver of bus and sustained injury which resulted in an impairment of free movement of his left hand, disabling him from driving vehicles, the injury was not one of the injuries mentioned in Schedule I of the Act which are deemed to result in permanent total disablement. The nature of the disability is not to be determined with reference to and vis-a-vis the work the workman was performing at the time of the accident. Hence the disablement did not amount to permanent total disablement, as the workman was capable of performing duties and executing works other than driving motor vehicles".
10. In view of the above ruling of the Division Bench of this Court, which is binding on this Bench, I am unable to follow the contrary view taken in the decision of K.P. Hanumantha Gowda's case, supra and Oriental Insurance Company Limited's case, supra. In the present case, the evidence given by the Medical Officer-P.W. 2 discloses that the claimant suffered only 40% disability, which is not permanent total disablement and the injuries sustained are not one of the injuries mentioned in the Schedule I of the Workmens' Compensation Act. It is further found from the evidence of the Medical Officer P.W. 2 that the claimant is fit to drive the vehicle though not as effectively as he was driving the vehicle before the date of accident.
11. Having regard to the above medical opinion furnished, it is not possible to hold that the claimant suffered total disablement. I therefore, find that inference drawn by the Commissioner that the claimant suffered permanent total disablement is clearly erroneous. Since the medical evidence discloses that even after treatment of the fractures sustained by the claimant in his left hand, he is not in a position to turn his left hand freely and cannot effectively drive the vehicle, I feel that the percentage of the permanent disability can be reasonably assessed at 70%. The loss of earning capacity of the respondent-claimant will be 70% of the monthly wages (Rs. 500/-) which works out to Rs. 350/-. The relevant factor applicable to the claimant according to his age at the time of the accident which was 23 years, is 219.95, which is rounded off to 220. Thus, the compensation payable to the respondent-claimant can be reasonably estimated as Rs. 77,000/-. I therefore, find that the award passed by the Commissioner is to be modified accordingly.
12. In the result, this appeal is allowed in part with costs and in modification of the compensation awarded by the Commissioner, respondent is awarded total compensation of Rs. 77,000/- with interest at 6% p.a. from the date of his application till the date of deposit. Since, the respondent has already withdrawn 50% of the compensation amount deposited in this Court by the appellant, he is entitled to withdraw the balance amount payable in terms of this modified award. If the amount deposited is found to be in excess of the amount payable, the said excess amount may be paid back to the Insurance Company.