Bombay High Court
Royal Sundaram Alliance Insurance ... vs Shri Manoj Laxman Patil on 1 March, 2017
Author: M. S. Sonak
Bench: M. S. Sonak
skc/dss 905-FA-164-15.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 164 OF 2015
Royal Sundaram Alliance
Insurance Company Limited .. Appellant
vs.
Shri Manoj Laxman Patil & Anr. .. Respondents
Mr. M. M. Sathaye for Appellant.
Mr. T. S. Ingale with Mr. Nikhil Pawar for Respondents.
CORAM : M. S. SONAK, J.
DATE : 01 MARCH 2017 ORAL JUDGEMENT :
1] This appeal is directed against the judgment and order dated 18 February 2012 made by the Commissioner, under the Employee's Compensation Act, 1923 (said Act), the operative portion of which, reads thus :
" ORDER
1. The application is hereby partly allowed.
2. The respondents are hereby directed to jointly and severally pay Rs.5,27,880/- (Five Lakhs Twenty Seven Thousand Eight Hundred and Eighty Rupees Only) to the applicants along with interest thereon at the rate of 6% per annum w.e.f. 07/03/2011 from the date of registration of the application till its realization in full.
3. The opponent No.2 is further directed to pay penalty of Rs.2,63,940/- (Two Lakhs Sixty Three Thousand Nine Hundred and Forty Rupees Only) to the applicant with interest thereon at the rate of 6% per annum from the date of the accident i.e. w.e.f. 13/03/2009.
4. The parties to bear their own costs of litigation."1/18 ::: Uploaded on - 06/03/2017 ::: Downloaded on - 07/03/2017 00:32:18 :::
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2] Mr. Sathaye, learned counsel for the appellant (insurance
company) submits that this is not a case of 'total disablement' but rather this could have been regarded as a case of 'partial disablement'. Mr. Sathaye submits that in this case, the applicant, who was a driver may have lost the vision of his right eye and the movement of his right leg. However, that by itself, does not render him incapable of carrying on some other or lesser scale of activities and functions, in order to earn his livelihood. Mr. Sathaye submits that the Commissioner, has not at all addressed this issue and the conclusion drawn to the effect that the applicant had suffered total disablement is contrary to the law laid down in the case of Raj Kumar vs. Ajay Kumar & Anr.1 Mr. Sathaye submits that compensation in the present case, was required to be determined in terms of section 4(1)(c) of the said Act and not under section 4(1)
(b) of the said Act. Mr. Sathaye submits that this is a substantial question of law which is required to be decided in this appeal.
3] Mr. Ingale, learned counsel for the respondent (applicant) submits that the expression 'total disablement' has been statutorily defined under the said Act. In this case, there is no dispute that the applicant was a driver and on account of the permanent disability suffered by him, the applicant is incapable of discharging duties as a driver. Mr. Ingale submits that from this, it is quite clear that the applicant has suffered 'total disablement' as contemplated by section 2(1) (l) of the said Act. He relies upon the decision of the Hon'ble Supreme Court in the case of Pratap Narain Singh Deo vs. Shrinivas Sabata & Anr.2 and the decisions of this court in the case of Arjun Gangappa Kore vs. Nirmal Bhagchand Bothra & Ors.3 and Shaikh Salim Ramzan vs. Ashok Beniram Kothawade 1 (2011) 1 SCC 343 2 AIR 1976 SC 222 3 2005 (1) Mh. L. J. 179 2/18 ::: Uploaded on - 06/03/2017 ::: Downloaded on - 07/03/2017 00:32:18 ::: skc/dss 905-FA-164-15.doc & Anr.4, to submit that there is no substantial question of law involved in this appeal and in any case the appeal warrants dismissal.
4] The discussion on the aspect of total disablement is contained in paragraph 14 of the impugned judgment and order, which reads thus :
"14. Now, having calculated the age and wages of the applicant we have now to determine whether the applicant suffered permanent disability and total loss of earning capacity. It is an admitted fact that the applicant has suffered permanent disability of 60% as seen from the Permanent Disability Certificate at Exh. U-23, because said Certificate is admitted by the opponent No. 2. It is also elicited in the evidence that the applicant has lost vision of the right eye and movement of the right leg. So, he has sustained permanent total disability. He cannot bend his right at Hip Joint, Knee Joint and Ankle Joint. Now, the applicant was admittedly working as a "Driver". So, the loss of vision and movement of the right leg due to the injuries would naturally disable him to perform the work of a Driver as he used to do it previously. Hence, it can be safely held that he has suffered total loss of earning capacity."
5] There is no dispute in this case that the applicant suffered permanent disability to the extent of 60% on account of loss of vision of the right eye and movement of the right leg. The evidence on record indicates that the applicant cannot bend his right at hip joint, knee joint and ankle joint, apart from having lost the vision of his right eye. There is also no dispute that the applicant was a driver and as a result of this disability sustained, is unable to perform duties as a driver.
6] Section 2(1) (l) of the said Act, reads thus :
"(l) "total disablement" means such disablement, whether of a temporary or permanent nature, as incapacitates a
4 2011 (2) ALL. MR 301 3/18 ::: Uploaded on - 06/03/2017 ::: Downloaded on - 07/03/2017 00:32:18 ::: skc/dss 905-FA-164-15.doc [employee] 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 thereof where the aggregate percentage of the loss of earning capacity, as specified in the said Part II against those injuries, amounts to one hundred per cent, or more]"
7] The aforesaid provision is subject matter of several decisions, including in particular, the decision of the Hon'ble Supreme Court in the case of Pratap Narain Singh Deo (supra). That was a case where amputation of left hand above the elbow was taken as total disablement, since, the applicant in the said case was a carpenter. The discussion is at paragraph 5, which reads thus :
"5. The expression "total disablement" has been defined in section 2(1)(l) of the Act as follows:
"(1) "total disablement" means such disablement, whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement."
It has not been disputed before us that the injury was of such a nature as to cause permanent disablement to the respondent, and the question for consideration is whether the disablement incapacitated the respondent for all work which he was capable of performing at the time of the accident. The Commissioner has examined the question and recorded his finding as follows:
"The injured workman in this case is carpenter by profession....By loss of the left hand above the elbow, he has evidently been rendered unfit for the work of carpenter as the work of carpentry cannot be done by one hand only."
This is obviously a reasonable and correct finding. Counsel for the appellant has not been able to assail it on any ground and it does not require to be corrected in this appeal. There is also no justification for the other argument which has been advanced with reference to item 3 of Part II of Schedule I, because it was not the appellant's case before the Commissioner that amputation of the arm was from 8" from tip 4/18 ::: Uploaded on - 06/03/2017 ::: Downloaded on - 07/03/2017 00:32:18 ::: skc/dss 905-FA-164-15.doc of acromion to less than 41/2" below the tip of olecranon. A new case cannot therefore be allowed to be set up on facts which have not been admitted or established."
[Emphasis supplied] 8] The ratio of Pratap Narain Singh Deo (supra), was followed by the Hon'ble Supreme Court in S.Suresh vs. Oriental Insurance Company Limited and anr.5 , to the case of a lorry driver, who on account of an accident arising out of and in the course of his employment, suffered amputation of his right leg just below the knee. The contention virtually identical to the one now raised by Mr.Sathaye, was in fact accepted by Karnataka High Court mainly relying upon the medical disability certificate. However, the Hon'ble Supreme Court, after adverting to the definition of the expression "total disablement" in section 2(1)(l) of the said Act, reversed the Karnataka High Court and held as follows:
"7. The correctness of the impugned judgment is questioned mainly on the ground that the claimant being a lorry driver, the loss of his right leg ipso facto meant a "total disablement" as understood in terms of Section 2(1)(l) of the Act and as such the compensation payable to the claimant had to be computed on that basis.
8. In support of the plea, reliance is placed on a four- Judge Bench decision of this Court in Pratap Narain Singh Deo v. Srinivas Sabata. In that case, a carpenter had suffered amputation of his left arm from the elbow. This Court held that this amounted to a total disability as the injury was of such a nature that the claimant had been disabled from all work which he was capable of performing at the time of the accident. It was observed as under: (SCC p.291, para 5) "5. The expression "total disablement" has been defined in Section 2(1)(l) of the Act as follows:
'2.(1)(l) "total disablement" means such disablement, whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement;' 5 (2010) 13 SCC 777 5/18 ::: Uploaded on - 06/03/2017 ::: Downloaded on - 07/03/2017 00:32:18 ::: skc/dss 905-FA-164-15.doc It has not been disputed before us that the injury was of such a nature as to cause permanent disablement to the respondent, and the question for consideration is whether the disablement incapacitated the respondent for all work which he was capable of performing at the time of the accident. The Commissioner has examined the question and recorded his finding as follows:
'The injured workman in this case is a carpenter by profession....By loss of the left hand above the elbow, he has evidently been rendered unfit for the work of carpenter as the work of carpentry cannot be done by one hand only'.
This is obviously a reasonable and correct finding."
In our view, the ratio of the said judgment is squarely applicable to the facts at hand.
9. We are of the opinion that on account of amputation of his right leg below the knee, he is rendered unfit for the work of a driver, which he was performing at the time of the accident resulting in the said disablement. Therefore, he has lost 100% of his earning capacity as a lorry driver, more so, when he is disqualified from even getting a driving licence under the Motor Vehicle Act, 1988."
(emphasis supplied) 9] In Ahmed Abdul v. H.K. Sehgal6, the Division Bench of this Court was concerned with a carpenter, who sustained an injury to his limb in an accident arising out of and in the course of his employment. The Doctors certified the extent of disability at 65%. This court, after adverting to the definition of the expressions "partial disablement" and "total disablement" in section 2(1) (g) and 2(1)(l) of the said Act, has held as follows:
"Reading the definitions together would show that in the case of scheduled injuries disablement is total or partial according as the total percentage of all of them together is less than or equal to 100 per cent. Difficulty arises only in the case of non- scheduled injuries. Both total and partial disablement has reference to earning capacity. In the definition of "partial disablement" there is direct reference to the earning capacity of the workman while in the case of "total disablement" it is 6 AIR 1965 Bombay 32 6/18 ::: Uploaded on - 06/03/2017 ::: Downloaded on - 07/03/2017 00:32:18 ::: skc/dss 905-FA-164-15.doc referred to in the case of scheduled injuries. Moreover, the underlying purpose of the Act is to make some provision for a workman who is disabled from earning by work. Merely being physically capable cannot enable him to earn, which he can do only if there are persons who would employ him. If there is such incapacity that he cannot get employment for any work he can undertake, it would be total permanent disability. The words "incapacitates a workman for all work" therefore cannot mean any and every work which he may do but means such work as is reasonably capable of being sold in the market. In other words, they do not mean "incapacitate to work." The words do not have reference to physical incapacity.
(7) Mr. Israni lays emphasis on the word "all" before the word "work" and contends that in order that a workman should be totally disabled he must be incapable of doing any work. Looking to the purpose which the Act was intended to serve and the context in which the words are used, I am not prepared to accept the contention."
"(8) In Ball v. William Hunt & Sons, Ltd., (1912) A.C. 496, a workman was blind of one eye. But the defect was not visible and he was to all outward appearances a two eyed man. He sustained an employment injury as a result of which the defective eye had to be removed with the consequence that he could not get employment though physically he was as well as before. The House of Lords held that "incapacity for work" included inability to get work or in other words "There is incapacity for work when a man has a physical defect which makes his work unsaleable in any market reasonably accessible to him."
(emphasis supplied) 10] In case of Arjun Kore (supra), the applicant, was a driver who suffered disability of the shortening of his right leg. This court, held that right leg is essential for driving the vehicle since, the same is used for accelerating the vehicle as well as for applying brakes. Since, on account of a shortening of right leg, the applicant was rendered incapable of discharging duties as a driver, this court, held that this was a case of total disablement which warrants computation of compensation under section4 (1)(b) of the said Act and not 4(1)(c) of the said Act. The relevant discussion is at 7/18 ::: Uploaded on - 06/03/2017 ::: Downloaded on - 07/03/2017 00:32:18 ::: skc/dss 905-FA-164-15.doc paragraphs 10 and 11, which reads thus :
"10. In the present case, the evidence on record indicates that the appellant was unable to perform the work that he was earlier doing. The appellant was employed as a driver. The accident has caused an injury to him which has resulted in fractures to his right leg and right foot and despite treatment these fractures have left him with a shortened right leg. This handicap has also resulted in decreasing the muscle power of the limb as also its movement. The evidence on record demonstrates that the appellant is unable to bend either his right knee or the right foot. The right leg is essential for driving a vehicle as the right leg is used for accelerating the vehicle as well as for applying brakes. In such circumstances, when there is evidence on record to show that the workman was unable to carry out the work of driving the vehicle it obviously means that he had suffered an injury which resulted in complete disablement. The Supreme Court in the case of Pratap Narain Singh Deo (supra) considered the case of a workman who, as a result of an accident arising out of and in the course of employment, suffered a personal injury due to which his left arm above the elbow was required to amputated. The Apex Court has held that in view of the definition of total disablement, the work which was required to be performed by a carpenter could not be performed with only one hand. The appellant in that case was rendered unfit for carpentry work and, therefore, had suffered an injury which resulted in total disablement. In this view of the matter, in the present case also, the workman has suffered a non scheduled injury which has caused him total disablement as he is unable to drive a vehicle which was the work that he was doing prior to the accident. Similarly, in the case of Sadashiv Krishna Adke (supra), the workman, who was a coolie, sustained injuries in the course of employment. He suffered from compound fractures and was hospitalized for some time. The Court held that a coolie's work required the limbs to be functioning properly and therefore, a person who moves on crutches, would obviously be unfit to do the work of a coolie. Similarly in the case of Executive Engineer, P.W.D. (supra), this Court considered the case of a driver of a roadroller who met with an accident arising out of an in the course of employment. The accident resulted in an injury which required amputation of the left arm above elbow joint. Although the medical board had assessed the disability at 45%, this Court placing reliance on the judgment in the case Pratap Narain Singh Deo (supra), held that the workman had been rendered permanently and totally disabled and therefore 8/18 ::: Uploaded on - 06/03/2017 ::: Downloaded on - 07/03/2017 00:32:18 ::: skc/dss 905-FA-164-15.doc was entitled to compensation on that basis. In the case of Mangru Palji (supra), this Court has considered whether the Commissioner could assess what should be the liability to be imposed the employer. The Court considered that the loss of earning capacity is co-extensive with the loss of physical capacity although the employer may pay the same wages as earlier, there may still be the case of loss of physical capacity.
11. Therefore, taking into consideration all these judgments, I am of the view that the appellant has suffered permanent total disablement as he is not capable of performing the same work as he was doing prior to the accident. Compensation payable to him must therefore, be computed under Section 4(1)(b) of the Act. The submission of the learned Advocate for the Respondent that compensation has rightly been computed on the basis of Section 4(1)(c)(ii) is unsustainable as this provision is applicable only when there is partial disablement. The evidence on record clearly indicates that the injury suffered by the appellant rendered him totally disabled as defined under Section 2(1) of the Act. That being so, the Commissioner ought to have computed the compensation under Section 4(1)
(b) and not 4(1) (c) (ii) as he has done."
(Emphasis supplied) 11] Shaikh Salim Ramzan (supra) was also a case of a driver who suffered disability of loss of vision in the right eye. The disability certificate had indicated disability at only 30%. However, this court, taking into consideration that the applicant was rendered incapable of discharging his duty as a driver on account of the loss of vision in the right eye, held that this was a case of total disablement as envisaged under section 2(1) (l) of the said Act. The discussion in this regard, is at paragraphs 15, 16 and 17, which reads thus :
"15. This takes us to the moot question about the disability. No doubt, the disability certificate shows the disability of the appellant as 30 %. It is established by the evidence of the Doctor, so also the certificate that the right eye of the appellant has been totally damaged and the total vision of the right eye is lost. It is also matter of record that the appellant had to surrender his driving licence due to the loss of total sight of one eye.9/18 ::: Uploaded on - 06/03/2017 ::: Downloaded on - 07/03/2017 00:32:18 :::
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16. Though under the medical terms, the disability is only 30 % but while computing the compensation the loss of earning capacity is to be considered as because of the loss of vision of right eye, the appellant would not be in a position to continue with his avocation as a driver. It is not disputed that the appellant was driver by profession. In view of the fact that he had to surrender his licence, the appellant would not be in a position to drive the vehicle and continue as driver. Going through the definition of partial disablement and the total disablement as is envisaged in Section 2 (g) and (l) respectively, it is evident that the disablement to be considered is with regard to the reduction in the earning capacity of the workman in any employment, in which he was engaged at the time of accident resulting in disablement. In the present case though the medical disablement is about 30 %, still the said disablement is of permanent nature and has rendered appellant unfit for the work of driver.
17. It is not only the aspect of medical disablement i.e. required to be considered but taking into account the object and the spirit behind the provisions of the Workmen's Compensation Act and the definition of total disablement which means such a disablement whether of a temporary or permanent nature as incapacitates workman for all work, which he was capable of performing at the time of accident resulting in such disablement is required to be taken into consideration. The expression "incapacitates workman for all work which he was capable of performing at the time of accident resulting in such disablement" would mean the workman having been rendered incapable of performing that "work" which he had undertaken at the time of accident. The appellant being a qualified driver and was performing his duty as a driver, because of the loss of vision of right eye he has been incapacitated for all work as driver, he has been rendered unfit for the work of driver. The Commissioner, in such circumstances, committed a serious error of law in applying Section 4 (1)(c) instead of Section 4 (1) (b) of the Workmen's Compensation Act. Once we come to the conclusion that it is the case of permanent total disablement, Section 4 (1) (b) of the Act would be applicable. Consequently, Schedule I Part I and Item 4 would be applicable and not Schedule I Part II Item 25 as has been 10/18 ::: Uploaded on - 06/03/2017 ::: Downloaded on - 07/03/2017 00:32:18 ::: skc/dss 905-FA-164-15.doc applied by the Commissioner. Item 4 of Part I of Schedule I lays down that if the loss of sight is to such an extent which renders claimant unable to perform any work for which eye sight is essential, then 100 % loss of earning capacity is to be considered. The claimant being driver, because of loss of vision of right eye, the claimant had to surrender licence rendering him unable to perform any work of driver thereby resulting in 100 % loss of earning capacity."
(Emphasis supplied) 12] In United India Insurance Co. Ltd. vs. Suryakant D. Meherkhambe7, this Court was concerned with a driver, who on account of an accident arising out of and in the course of his employment suffered injuries on his left leg. After adverting to the definition of "total disablement" in section 2(1)(l) of the said Act, this court has held as follows:
"6. It has to be borne in mind that the occupation of the driver involves skill and alertness to operate the motor vehicle, free movements to apply accelerator, brakes, clutch and change gears simultaneously, giving of signals. Claimant's incapacity to earn as Driver which was his sole occupation to earn his livelihood is relevant fact in this case. Assuming for the sake of argument, he may be able to do some kind of work but the crucial question is whether he can earn his livelihood as driver which was his sole occupation at the time of accident? The answer is in the negative. Incapacity to work has to be determined with reference to the sole occupation of the claimant as Driver at the time of the accident. It is not the case of the employer that the claimant was employed for any other work. The insurer did not lead any evidence to the contrary. Mere averment in written statement cannot be construed as evidence.
7. It therefore follows that the claimant in this case suffered 100% loss of earning capacity of his occupation as he was incapacitated as "Driver" which was his sole occupation to earn his livelihood at the time of the accident. There is no medical opinion to point out to the contrary on record. It must be borne in mind that the learned commissioner is not bound by technical rigidity of the rules of 7 2014(2)Mh.L.J.161 11/18 ::: Uploaded on - 06/03/2017 ::: Downloaded on - 07/03/2017 00:32:18 ::: skc/dss 905-FA-164-15.doc Civil Procedure Code and Indian Evidence Act while deciding the Claim for compensation under the Workmens' Compensation Act. There was sufficient material on record to indicate that the claimant suffered the accident while he was in the employment of the opposite party no.1. In the present case it appears that the learned Commissioner awarded less compensation than payable under the Act."
(Emphasis supplied) 13] Apart from the decisions of the Hon'ble Supreme Court and this Court, other Courts have also interpreted the expression "total disablement" section 2(1)(l) of the said Act in a similar manner.
14] In Canara Public Conveyance Company, Ltd. and Usman Khan8, the Division Bench of Mysore High Court was concerned with the injuries sustained by a truck driver arising out and in the course of his employment, as a result of which he lost complete use of his right hand. Rejecting the submission similar to one made on behalf of the appellant in the present case, it was held that as under:
"But the submission rests upon the theory that so long as Usman Khan had the physical ability or capacity to attend to some other kind of work, provided he was able to persuade someone to appoint him for such work, there would be no total or complete incapacity. But it will be seen that Cl. (l) does not speak of incapacity "to work"
but incapacity "for work". The preposition "for" appearing in the phrase "incapacitates a workman for all work" which is to be found in Cl. (l) makes it manifest that the incapacity to which that clause refers is not physical incapacity but incapacity to secure employment produced by the injury which caused the disablement. If there be such incapacity to secure employment, whatever may be the physical ability to perform work involved in such employment, and if there be no one who in the usual course of events would be willing to offer him such employment, there would remain in the workman no longer that modicum of the earning capacity, on the existence of which alone could it be said that the incapacity was not complete.
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In Ball v. William Hunt & Sons, Ltd. [1912 A.C. 496], interpreting the words "incapacity for work" in Para. 1(b) of Sch.I to the Workmen's Compensation Act, 1906, Earl Loreburn, L.C., said this :
"In the ordinary and popular meaning which we are to attach to the language of this statue I think there is incapacity for work when a man has a physical defect which makes his labour unsaleable in any market reasonably accessible to him and there is partial incapacity for work when such a defect makes his labour saleable for less than it would otherwise fetch." [Pp. 499; 500.] Lord Macnaghten, explaining the distinction between "incapacity to work" and "incapacity for work" pointed out that as illustrated in Lysons v. Andrew Knowles & Sons, Ltd. [1901 A.C. 79]:
"The first thing one has to do is to apply one's mind to what is the substantive intention and meaning of the statute." [P. 501.] and that when that is done the injury for which the statute gives compensation is not mutilation or disfigurement or loss of physical power, but loss or diminution of the capacity to earn wages. Proceeding further the noble Lord observed :
"The earning of wages depends as much on the demand for the workman's labour as it does upon his physical ability to work. If because of his apparent physical defects no one will employ him, however efficient he may be in fact, he has lost the power to earn wages as completely as if he was paralysed in every limb." [P. 505.] The words "incapacitates the workman for all work"
occurring in Cl. (l) of S.2(1) have to be understood in the same way in which "incapacity for work" was interpreted by the House of Lords in the above case.
That being so, what we should say is that in all cases where there is no longer any earning power remaining in the workman who was injured, whatever may be his physical power to perform a duty in any sphere of activity, so long as no one could be persuaded to offer him any such employment, the incapacity is complete."
(Emphasis supplied)
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15] In Punambhai Khodabhai Parmar and G. Kenel
Construction and anr.9, The Division Bench of Gujarat High Court was concerned with injuries sustained by a driver arising out of and in the course of his employment to his right hand finger, right elbow and right thigh. It was held that permanent total disablement has to be judged from the point of view of the job which the employee was doing prior to the accident. It is incorrect to say that since the employee was in a position to work with his left hand, the disablement was only partial and not total. The employee was not in a position to work as a driver on account of the permanent disability suffered by him. Therefore, so far as employment as driver is concerned, there was permanent total disability.
16] In National Insurance Co. Ltd. vs Mohd. Saleem Khan and anr.10, learned Single Judge of the Andhra Pradesh High Court was concerned with the injuries sustained by the truck driver arising out and in the course of his employment, resulting in compound injuries on both feet and collar bone. The Civil Surgeon certified the disability to the extent of 50%. It was held that since the disability rendered the employee unfit to drive truck or other heavy vehicle, that is the work which he was capable of performing at the time of accident, such disablement comes within the purview of "total disablement" as defined under section 2(1) (l) of the said Act, though, the Doctor had held that the physical impairment and loss of physical function was tot he extent of 50% only. The work which the workman was capable of performing at the time of the accident is material to consider whether it is a case of total disablement or not, in view of the injuries sustained in the accident. If the workman is incapacitated to do all the work which he was capable of 9 1985 (1) LLJ 98 10 1992 (2) LLJ 377 14/18 ::: Uploaded on - 06/03/2017 ::: Downloaded on - 07/03/2017 00:32:18 ::: skc/dss 905-FA-164-15.doc performing at the time of the accident, it is a case of total disablement. It may be that in view of the above injuries, the workman is capable enough to render some other sort of work but still when there is incapacity to do the work which he was capable of performing by the date of the accident, it is a case of total disablement.
17] In New India Assurance Company Ltd. vs. Sudarsan Samal11, Leaned Single Judge of the Orissa High Court was concerned with the injuries sustained by a driver arising out of and in the course of his employment resulting in shortening of his right leg by 1 & ½ inch and there was malunion of right tibia. It was held that though disability certificate is one of the basic document necessary to establish disability sustained by the workman, that by itself, is not determinative of loss of earning power or capacity of the workman for all work which he was capable of performing at the time of accident resulting in such disablement. Loss of earning power is a question of fact which has to be judged on the basis of nature of injuries sustained also with due regard to the nature of the avocation of the workman at the time when he sustained the injury along with other attendant factors. It is not for the medical practitioner to speak of loss of earning power but it is a question to be adjudicated by the Commissioner. The loss of earning capacity is not necessarily co-extensive with the loss of physical capacity. The medical evidence, though, relevant is therefore, not decisive in such matters. On this basis, it was held that the driver, on account of injuries sustained, has suffered total disablement and not partial disablement.
18] Mr. Sathaye, learned counsel for the appellant, however,
11 1996(3) LLJ 1075
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placed strong reliance upon the following observations in Ajay Kumar (supra) (see paras 12,13 and 14):
"12. Therefore, the Tribunal has to first decide whether there is any permanent disability and, if so, the extent of such permanent disability. This means that the Tribunal should consider and decide with reference to the evidence:
(i) whether the disablement is permanent or temporary;
(ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement;
(iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is, the permanent disability suffered by the person.
If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.
13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.
14. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a 16/18 ::: Uploaded on - 06/03/2017 ::: Downloaded on - 07/03/2017 00:32:18 ::: skc/dss 905-FA-164-15.doc carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of `loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity."
19] The decision in Ajay Kumar (supra) is inapplicable in the facts and circumstances of the present case for more reasons than one. Firstly, in Ajay Kumar (supra), the Hon'ble Supreme Court was not dealing with definition of expression "total disablement" in section 2(1)(l) of the said Act. Secondly, in Narendra Singh vs. Nishant Sharma and anr.12, the Hon'ble Supreme Court, after specific reference to what is held in paragraph 12 of Ajay Kumar (supra) , has ruled that the test laid down in paragraph 12 is incorrect. The relevant observations in this regard read thus:
"13. Though para 12 of the said judgment in Ajay Kumar case favours the case of the appellant herein the test laid down in the case, stand incorrect on principle in the presence of the First Schedule of the Employees' Compensation Act, 1923.The permanent partial disability of the appellant is correctly assessed by both the courts below at 60% permanent partial disablement as per Entry 19 of the First Schedule of the Employees' Compensation Act, 1923. This finding is neither challenged by the insured nor by the 12 (2015) 14 SCC 353 17/18 ::: Uploaded on - 06/03/2017 ::: Downloaded on - 07/03/2017 00:32:18 ::: skc/dss 905-FA-164-15.doc Insurance Company before the appellate court by obtaining permission from the Tribunal as provided under Section 170(b) of the Motor Vehicles Act, 1988 to avail the defenece available for the insured and contest the proceeding. Therefore, the appellant is entitled to only 60% of the loss of future income. Hence, the total amount of compensation under the head of "loss of future income" is Rs.11,13,840."
20] Further, in Ajay Kumar (supra), the Hon'ble Supreme Court after reference to the three steps involved in ascertaining the effect of the permanent disability on the actual earning capacity (para 13) has made reference to certain examples (in para 14), where, the loss of earning capacity may be virtually 100%, even though, the permanent physical or functional disablement may be assessed around 60%. One of the examples is that of a driver or a carpenter whose left hand is amputated. In the present case, the respondent, who was a driver, has not only lost the vision of his right eye, but also the movement of his right leg. The observations in Ajay Kumar (supra), therefore, far from assisting the case of the appellant, supports the case of the respondent driver.
21] Upon cumulative consideration of all the aforesaid aspects, this appeal is required to be dismissed and is hereby dismissed. There shall however be no order as to costs.
(M. S. SONAK, J.) Chandka 18/18 ::: Uploaded on - 06/03/2017 ::: Downloaded on - 07/03/2017 00:32:18 :::