Madhya Pradesh High Court
Anwar Hussain vs Khalif Mohd. And Anr. on 22 July, 1999
Equivalent citations: 2001ACJ1420
Author: S.B. Sakrikar
Bench: S.B. Sakrikar
JUDGMENT S.B. Sakrikar, J.
1. The claimant-appellant has directed this appeal against the order dated 30.6.97 passed by Workmen's Compensation Commissioner, Indore, in W.C. Case No. 46 of 1987, thereby awarding total compensation of Rs. 25,660 together with interest at the rate of 6 per cent per annum from the date of the alleged accident till realisation and 50 per cent by way of penalty under Section 4-A of the Workmen 's Compensation Act.
2. The facts of the case lie in a narrow compass. The appellant was employed as driver by the respondent No. 1 for driving of his truck bearing registration No. RQ 5569. On 4.10.1986. the appellant met with an accident during the course of the employment and sustained grievous injuries on his right leg resulting into 30 per cent permanent disability on his right leg. The appellant, after service of notice on the employer, demanding compensation, filed an application before the Commissioner, Workmen's Compensation at Indore, for award of the compensation. The learned Commissioner, on hearing the parties and evaluating the evidence on the record, partly allowed the application and awarded compensation in favour of the appellant as indicated above taking into consideration 25 per cent physical disability found on the right leg of the appellant as a result of the said accident. Aggrieved, the appellant has filed this appeal for enhancement of compensation assessing the same on the ground of disability in the earning capacity suffered by the claimant as a result of the said accident.
3. The respondent No. 2, insurance company by filing a cross-objection, has challenged the impugned order of the Commissioner, holding the insurance company also liable to pay the amount of penalty imposed on the employer under Section 4-A of the Workmen's Compensation Act. The alleged cross-objection was filed after the expiry of the prescribed period of limitation along with LA. No. 6413 of 1998, for condonation of the delay.
4. I have heard the learned counsel for parties on the merits of the case as also on LA. No. 6413 of 1998, an application for condonation of the delay caused in filing the cross-objection.
5. On considering the rival submissions of the learned counsel for parties on I.A. No. 6413 of 1998 and on perusal of the said application, in view of the facts and circumstances of the case on hand as also grounds stated in the application for the delay in filing the cross-objection, I consider it to be a fit case for condonation of the delay. As such, I.A. No. 6413 of 1998 is allowed and the delay caused in filing the cross-objection stands condoned.
6. Learned counsel for the appellant contended that in view of the facts and circumstances of the case, the compensation should have been awarded taking into consideration the disability in the earning capacity of the appellant due to injuries caused to him in the said accident. The Commissioner has committed an error in assessing the compensation on the basis of the physical disability found on the right leg of the appellant as a result of the said accident. Learned counsel relied on the decisions of this court in cases of Bharat Singh v. Pluton Cement Pvt. Ltd., 1999 ACJ 496 (MP) and Shankarlal v. General Manager, Central Railway, Bombay V.T., 1990 ACJ 1028 (MP).
7. Learned counsel for respondent No. 2 with regard to the cross-objection filed by the insurance company contended that in view of the terms of the policy, the insurance company cannot be held liable for the payment of penalty imposed on the employer under Section 4-A of Workmen's Compensation Act. The insurance company be exonerated from the liability of payment of penalty imposed on the employer under Section 4-A of the Act. He relied on the decision of the Hon'ble Apex Court in case of Ved Prakash Garg v. Premi Devi, 1998 ACJ 1 (SC).
8. Having heard the learned counsel for parties and on perusal of the record, it emerged that from the unrebutted testimony of appellant-claimant, it is proved that in the alleged accident he sustained grievous injury on his right leg due to the fracture of femur bone at the junction of the hip joint. From the evidence of the appellant, it is also proved that at the time of the accident he was employed as driver for driving a heavy vehicle (truck) and he became incapable of driving any vehicle after the said accident due to permanent disability found on his right leg. As such, he is entitled for compensation assessed on the basis of the disability suffered by the appellant in his earning capacity as driver and not on the basis of physical disability as certified by the doctor.
9. This court in case of Shankarlal v. General Manager, Central Railway, Bombay V.T., 1990 ACJ 1028 (MP), considering the point in dispute has held that:
For a claim of non-scheduled injury not specified in Schedule I vide Clause (ii) of Section 4(1)(c) of the Act, a strict construction of the provisions of Section 4 imposes a duty on the court to determine percentage of loss of the earning capacity of the workman as a result of permanent partial disablement.
It is further held that:
In a case where injury is a non-scheduled one and there is no amputation, incapacity to work is to be judged in relation to the work for which the workman was engaged at the time of accident and not that such a workman could work on another job of lighter duties assigned to him after the accident, on the same pay and emoluments which he was drawing at the time of accident.
10. In the case of Bharat Singh, 1999 ACJ 496 (MP), the same principle was reiterated by this court, holding that in cases of injuries resulting into permanent partial disablement, the compensation has to be assessed not on the basis of physical disability caused to the claimant but the percentage of disability caused to the claimant in his earning capacity.
11. In view of the facts and circumstances of the case on hand as also the law applicable, I am of the opinion that the compensation should have been assessed on the basis of the loss of earning capacity caused to the appellant as a result of the alleged injury and the disability found on his right leg.
12. As stated above, the injury caused to the appellant in the present case is not covered by the injuries stated in the First Schedule to the Workmen's Compensation Act. As such, the principle for assessment of the compensation stated in the First Schedule cannot be applied to the present case. The compensation in such cases be assessed by taking into consideration the nature of the injury, the disability of permanent nature caused to the appellant as also the loss of the earning capacity in general. On examining the case on the aforesaid facts, in my opinion, a global compensation of Rs. 50,000 together with the interest and the penalty as awarded by the Commissioner is just and proper compensation that can be awarded in favour of the appellant and I accordingly enhance the amount of compensation as stated above.
13. In the light of the law laid down by the Supreme Court in case of Ved Prakash Garg, 1998 ACJ 1 (SC), the cross-objection filed by the respondent insurance company deserves to be accepted. In view of the terms and conditions of the policy, the insurance company cannot be held liable to pay the penalty for the default committed by the insured in depositing the compensation in compliance with the provisions of the Workmen's Compensation Act.
14. In the result, the appeal is partly allowed and the compensation in favour of the appellant is enhanced to Rs. 50,000 together with the interest and the penalty as awarded by the Tribunal. The interest on the enhanced amount of compensation shall be payable from the date of the order till the deposit of the said amount in the court of Workmen's Compensation Commissioner at Indore. The cross-objection filed by respondent No. 2 is also allowed and the insurance company is exonerated from the payment of penalty imposed on the insured in exercise of the powers under Section 4-A of the Workmen's Compensation Act. Parties are left to bear their own costs on this appeal as also of the cross-objection. Counsel's fee, as per Schedule, if certified.