Himachal Pradesh High Court
Prakash Chand vs Babu Ram And Others on 15 March, 2019
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO No. 336 of 2018.
Reserved on : 8th March, 2019.
.
Decided on : 15th March, 2019.
Prakash Chand .....Appellant.
Versus
Babu Ram and others ....Respondents.
Coram:
r to
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Appellant: Mr. J. L. Bhardwaj, Advocate.
For Respondent No.1 to 3: Mr. B.R. Sharma, Advocate.
For Respondent No.4: Mr. Raman Sethi, Advocate.
Sureshwar Thakur, Judge.
The instant appeal stands directed, against, the award pronounced, by, the learned Commissioner, Empployee's Compensation, Court No.2, Shimla, upon, Claim Application No. 4/2 of 2015, whereunder, compensation amount, borne in a sum of Rs.5,28,642/- along with interest 1 Whether reporters of the local papers may be allowed to see the judgment?
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@12% per annum from 23.10.2013, till its realization, stood .
assessed, vis-a-vis, the disabled claimant, and, the indemnificatory liability thereof, stood, fastened upon the insurer of the offending vehicle.
2. Upon hearing the learned counsel appearing for the parties, this Court, has, framed the hereinafter extracted substantial questions of law, for, rendering hence an adjudication thereon:-
"1. Whether the finding recorded by the Ld. Commissioner below that 30% disability of the appellant with respect to his right lower limb cannot be construed 100% disability qua his avocation is sustainable, in view of Ex.PW4/A, i.e. disability certificate where it is specifically mentioned that 30% disability causes permanent loss of function?
2. Whether the Ld. Commissioner below is right in not awarding the penalty as envisaged under Section 4-A of the Employee's Compensation Act, 1923, especially when the respondents No.1 to 3 being the employers of the appellant did not pay the amount within oe month from the date of accident despite the fact that respondents No.1 to 3 were aware about the ::: Downloaded on - 19/03/2019 22:04:19 :::HCHP ...3...
accident, and, the appellant sustained injuries, during .
the course of deployment with them?"
Substantial question of Law No.1.
3. Uncontestedly, the claimant prior to the disabling injuries, as a sequel of the relevant mishap, hence being entailed, upon, him, was engaged as driver, in the relevant vehicle, by respondents No.1 to 3 herein. There is no wrangle about the trite factum of the relevant mishap, hence, occurring during the course of his performing, his employment, under, his afore employers. The disability certificate, borne in Ex.PW4/A, makes a vivid pronouncement qua 30% disability being encumbered, upon, the claimant, and, the afore disability appertaining to the right lower limb,
(a) and, also therein, a, further pronouncement is made, that, the afore disabling injuries, in the afore percentum, appertaining to the right lower limb, rather sequeling, a, cent percent disabling effect, upon, the functioning of the afore right lower limb, whereon 30% disability, stood entailed, upon the disabled claimant.
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4. PW-4, Dr. Amit Thakur, proved Ex.PW4/A. In his .
deposition, comprised in his examination-in-chief, he has made candid and vivid echoing qua the disabling injuries, being permanent in nature. Consequently, the learned counsel appearing for the appellant herein, has, contended with much vigour before this Court, that, with there being, a, cent percent loss of functioning of the right lower limb, (a) with a concomitant permanent loss of earning to the disabled claimant, from, his hitherto avocation as driver, (b) thereupon, rather with a cent percent functional disability, on all facets or quarters, being encumbered, upon, him, (c) hence, in the learned Commissioner, in the impugned award, in proportion to the recited per centum of the disability, rather computing his wages at Rs.24,00/- per month, and, thereafter applying the relevant factor, has, wandered astray, and, has committed a legal impropriety. The learned counsel appearing for the insurer, whereuponwhom, the indemnificatory liability, vis-a-vis, the compensation amount, stood fastened, has, contended with much vigour, before this ::: Downloaded on - 19/03/2019 22:04:19 :::HCHP ...5...
Court (d) that the afore manner of computation of .
compensation, by the learned commissioner, is, both proper, and, apt, it, falling within the domain of Section 4(c) (ii), of, the Employee's Compensation Act (hereinafter referred to as the Act), provisions whereof stand extracted hereinafter:-
"4(c)(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)"
(e) wherein with specificity, and, explicity, a mandate is borne qua, vis-a-vis, any injury not specified in Schedule-I, as, is the injury hereat, (f) thereupon the disburseable compensation, computable, vis-a-vis, the permanently disabled claimant, enjoining, it, bearing hence proportion, with, the loss of earning capacity, rather, encumbered upon the disabled claimant, (g) and, the loss of earning capacity, being enjoined to be assessed only, by, a qualified medical practitioner.
Furthermore, he submits that hereat the disability, borne in 30%, appertains to the loss of function, of, the right lower ::: Downloaded on - 19/03/2019 22:04:19 :::HCHP ...6...
limb, (h) thereupon, when the medical practitioner concerned, .
has not adduced any evidence, vis-a-vis, the consequential therewith proportional loss of earning capacity, hence, being entailed upon the disabled claimant, hence, the reduction, in, to 30%, as, meted by commissioner, vis-a-vis, the wages drawn by the disabled claimant, rather being an appropriate deduction.
5. However, for the reasons to be assigned hereinafter, the afore submission falters, and, is rejected. (a) The afore submission would carry weight, only when, the disabling injuries, as, entailed in the per centum disclosed in the apposite disability certificate, do not, rather completely forbid, the disabled claimant, to, earn any income, from, his hitherto avocation, (b) rather even after, his being encumbered with the apposite disability, he is empowered to perform his hitherto callings, of his apposite avocation, (c) and, upon there being evident diminution or reduction in his earnings, therefrom, (d) or in the absence of the afore evidence, the medical practitioner rather makes an echoing, ::: Downloaded on - 19/03/2019 22:04:19 :::HCHP ...7...
that, in consequence, to, the entailment of, a, disability, upon, .
the person of the disabled claimant, he still is equipped to perform the functioning or callings of his avocation, though, his functions being impaired, with a consequent diminution or reduction, in, the earnings derived by him, from, his hitherto avocation. However, contrarily hereat, the disability certificate, as aforestated, amplifyingly, and, with clarity rather makes vivid echoings (e) that the disability encumbered, upon, the disabled claimant, rather sequeling a cent per centum loss of functioning of the right lower limb.
The further effect thereof, is that, conspicuously when the disabled claimant, is, a driver, and, when the easy facile movement, of, the right lower limb, is imperative, hence for his performing the callings of his hitherto avocation, as, driver, (f) and, when, the facile movement, of his, right lower limb, is rather cent per centum, (g) thereupon, it is to be concluded, that, the entailment, of, cent per centum apposite functional disability, upon, him, rather did not enjoin, the medical practitioner concerned, to, render any evidence, ::: Downloaded on - 19/03/2019 22:04:19 :::HCHP ...8...
that, thereafter the petitioner is enabled to perform the .
callings of his hitherto avocation, as, driver, (h) nor further evidence is required to be adduced, that, there would be, given the cent per centum functional disability entailed upon him, hence, some diminution or reduction in his earnings therefrom, (i) nor it is required to be proven, that, any per centum of reduction or diminution, in earnings therefrom, rather, comprising the computable compensation to be ordered to be disbursed, vis-a-vis, the disabled claimant. In sequel, this Court rather discountenances the assessment of wages, in, 30% by the learned Commissioner, vis-a-vis, the proven wages drawn by the disabled claimant, and, hence this Court proceeds to assess compensation, vis-a-vis, the disabled claimant, in, the hereinafter extracted manner:-
Monthly wages Factor Total Compensation Rs.8000/- 203.83 Rs.16,30,640/-
In coming to the afore conclusion, this Court finds, support from a decision rendered by the Hon'ble Apex Court, in, a case titled as Sri Eregowda alias Vasu vs. Divisional ::: Downloaded on - 19/03/2019 22:04:19 :::HCHP ...9...
Manager, United India Insurance Company Ltd., and, .
another, reported in (2018)15 SCC 246. Consequently, substantial question of law No.1 is answered in favour of the appellant, and, against the respondents.
Substantial question of law No.2.
6. The claimant had averred in the claim petition, that, his employers omitted to beget mandate compliance, vis-a-vis, the peremptory mandate borne in sub-sections (1) and (2) of Section 4A of the Act, provisions whereof stand extracted hereinafter:-
4A. Compensation to be paid when due and penalty for default.-(1) Compensation under section 4 shall be paid as soon as it falls due.
(2) In cases where the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the extent of liability which he accepts, and, such payment shall be deposited with the Commissioner or made to the workman, as the case may be, without prejudice to the right of the workman to make any further claim.
(3) Where any employer is in default in paying the compensation due under this Act within one month from the date it fell due, the Commissioner shall-::: Downloaded on - 19/03/2019 22:04:19 :::HCHP
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(a) direct that the employer shall, in addition to the amount .
of the arrears, pay simple interest at the rate of 12 per cent per annum or at such higher rate not exceeding the maximum of the lending rate of any scheduled bank as may be specified by the Central Government, by notification in the official gazette, on the amount due; and
(b) if, in his opinion, there is no justification for the delay, direct that the employer shall, in addition to the amount of the arrears ad interest thereon, pay a further sum not exceeding fifty per cent of such amount by way of penalty."
and, when hence his employers, were, issued notices, of, the claim petition, reared against them by the disabled claimant,
(a) and, hence, were heard, thereupon, with evident breach of, the peremptory mandate borne in sub-sections (1) and (2) to Section 4A of the Act, hence emerging, rather necessitated, the, invocation of clause (b) of sub-section (3) of Section 4A, of the Act, (b) hence, in consonance therewith, this Court proceeds to award penalty quantified at 25%, vis-a-vis, the afore compensation amount, and, liability thereof be burdened, upon, the employers of the disabled claimants.
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Accordingly, substantial question of law No.2 is answered in .
favour of the appellant, and, against the respondents.
7. For the reasons recorded hereinabove, the instant appeal is allowed and the impugned award is modified in the afore manner. Consequently, the disabled claimant/appellant herein is held entitled to a total compensation of Rs.16,30,640/- along with interest @12% per annum from 23.10.2013 till the deposit of the entire awarded amount. The aforesaid compensation amount shall be indemnified by the insurer of the offending vehicle, i.e. respondent No.4 herein.
Furthermore, the disabled claimant is also held entitled to penalty quantified in 25 per centum of the aforesaid compensation amount, and, the afore quantified sum of penalty shall be, within three months from today, paid by respondents No.1 to 3 to, the disabled claimant. All pending applications also stand disposed of. No order as to costs.
Records be sent back forthwith.
(Sureshwar Thakur) 15th March, 2019. Judge.
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