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Madhya Pradesh High Court

Oriental Insurance Com.Ltd. vs Kailash & Anr on 31 October, 2022

Author: Vivek Agarwal

Bench: Vivek Agarwal

                                                                          1
                                                    IN THE HIGH COURT OF MADHYA PRADESH
                                                                 AT JABALPUR
                                                                       BEFORE
                                                         HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                                               ON THE 31st OF OCTOBER, 2022

                                                    MISCELLANEOUS APPEAL No. 2305 of 2003

                                               BETWEEN:-
                                               ORIENTAL INSURANCE CO. LTD. THROUGH
                                               DIVISIONAL MANAGER, 1415, WRIGHT TOWN,
                                               JABALPUR (M.P.)

                                                                                                       .....APPELLANT
                                               (BY SHRI N.S. RUPRAH - ADVOCATE)

                                               AND
                                               1.        KAILASH, AGE 19 YEARS, S/O RAM
                                               KUMAR SINGH GOND THAKUR, R/O VILLAGE -
                                               KHAIRI, P.S. BHEDAGHAT, JABALPUR (M.P.)
                                               2.         MULAYAM CHAND JAIN, S/O SHRI
                                               HUKUM CHAND JAIN, R/O 634, SHANTI NAGAR,
                                               JABALPUR (M.P.)

                                                                                                    .....RESPONDENTS


                                             Th is appeal coming on for hearing this day, t h e court passed the
                                       following:
                                                                           ORDER

This Miscellaneous Appeal under Section 30 of the Workmen's Compensation Act, 1923 is filed by the appellant/Insurance Company being aggrieved of order dated 28.08.2003 passed by learned Commissioner for Wo r k m e n ' s Compensation-cum-Labour Court, Jabalpur in Case No.66/2002/WC/Non-Fatal (Kailash Singh Vs. Mulayam Chand Jain and another) on the ground that accident took place on 23.04.2002 when claimant Signature Not Verified sustained injuries while travelling in the truck bearing registration No.MIK-2665 SAN Digitally signed by PUSHPENDRA PATEL Date: 2022.11.01 18:58:53 IST as a conductor from Jabalpur to Katni loaded with tyres and clothes. On the 2 way on NH-7, driver of the truck drove the truck in rash and negligent manner due to which truck dashed against the tree. As a result of which, claimant sustained fractures to both the legs. He was aged about 19 years on the date of the accident. District Medical Board, Jabalpur vide Ex.P-15 certified 50% of permanent disablement but, Tribunal considered that disablement to be cent percent and awarded compensation on the evidence of Dr. Ravi Shankar Choudhary in an illegal and arbitrary manner.

Learned counsel for the appellant/Insurance Company submits that the Labour Court has recorded a finding of cent percent disability of the claimant, which is factually incorrect and the said finding needs to be set aside.

Learned counsel for the appellant/Insurance Company places reliance on the judgment of Hon'ble the Supreme Court in National Insurance Company Limited versus Mubasir Ahmed & Another (2007) 2 SCC 349 wherein it is held that if there is permanent partial disablement on account of the injuries not specified in Schedule-I then loss of earning capacity is not a substitute for percentage of physical disablement. It is one of the factors to be taken into account. The High Court without indicating any reason or any basis observed that there was 100% loss of earning capacity and such conclusion without any reason or any basis is not sustainable in the eyes of law. He also places reliance on the judgment of Hon'ble the Supreme Court in Oriental Insurance Company Limited versus Mohammad Nasir & Another (2009) 6 SCC 280 wherein it is held that the extent of disability should have been determined taking into consideration the facts & circumstances of the case but not in an arbitrary & illegal manner.

Nobody is appearing for the respondents though as per office report, Digitally signed by PUSHPENDRA PATEL Date: 2022.11.01 18:58:53 IST respondent No.1 is served.

I have heard learned counsel for the appellant and gone through the record.

A perusal of the record reveals that as per Disability Certificate issued by the District Medical Board, Jabalpur (Ex.P-15) it was certified that it was a case of old compound fracture of left Tibia Fibula with Loss of Tibia with Monoparisis Left Lower Limb with partial ankylosis knee and ankle joint.

Thus, it is evident from the record that certificate was issued only in regard to fracture in Left Tibia Fibula bone and there is no certificate showing any disability in the right leg. Tribunal has arbitrarily considered disability to be cent percent and has awarded compensation. Dr. Ravi Shankar Choudhary has admitted in his cross-examination that taking capacity of the left leg to be 100%, 50% disability was certified. He has admitted that claimant can carry out all those works which can be done with hands. It is mentioned that he cannot carry out heavy work. Thus, it is evident that there is no aspect of permanent loss of livelihood on account of the accident.

The Full Bench of this High Court in Kamal Kumar Jain versus Tazuddin & Others 2004 ACJ 1191 has held that the fracture simplicitor cannot be termed as privation of any member or joint and the injured cannot be held to be suffering from permanent disablement unless it is proved that the union of bones is not possible or that after union of bones, the disability has occurred or on account of malunion, the injured has suffered permanent/partial disablement. While reiterating the principle of assessment, it is held that the loss of income should be determined on the basis of the evidence available on Signature Not Verified SAN record.

T h e Labour Court can refer to the Schedule under the Workmen's Date: 2022.11.01 18:58:53 IST 4 Compensation Act, 1923 to determine the loss of earning capacity or the percentage of loss of partial disability or the permanent disability if evidence about partial or permanent disability is insufficient.

When the facts of the present case are taken into consideration in the light of the Full Bench Judgment of this High Court in Kamal Kumar Jain versus Tazuddin & Others (supra) alongwith the Schedule appended to the Workmen's Compensation Act, 1923 and keeping in view the fact that 40% permanent disability has been certified by the doctor for one leg then the total disability for the whole body will not be more than 40%.

Thus, when the Full Bench Judgment of this High Court in Kamal Kumar Jain versus Tazuddin & Others (supra) is taken into consideration then the ends of justice will meet if 40% permanent disablement is taken into consideration because the Labour Court has failed to marshal the evidence and refer to the Schedule appended to the Workmen's Compensation Act, 1923.

Accordingly, the compensation will be as under:-

T h e claimant was 19 years of age at the time of the accident and, therefore, the factor of 225.22 will be applicable. Income of the claimant is considered at Rs.4,000/- per month. 60% of which will come out to Rs.2,400/- per month. When 40% disability is taken into consideration then it will come out to Rs.960/-. When factor of 225.22 is applied then the total compensation payable will come out to Rs.2,16,211.20 in place of Rs.5,40,528/-. Thus, there will be reduction to the tune of Rs.3,24,316.80 (Rupees Three Lakhs, Twenty Four Thousands, Three Hundred Sixteen and Eighty Paise Only). The other terms & conditions of the order shall remain intact.

In above terms, this Miscellaneous Appeal stands disposed of.

Let record of the Labour Court be sent back.

(VIVEK AGARWAL) JUDGE pp Signature Not Verified SAN Digitally signed by PUSHPENDRA PATEL Date: 2022.11.01 18:58:53 IST