Madhya Pradesh High Court
Mishrilal vs Nirmal Kumar And Anr. on 17 February, 2004
Equivalent citations: III(2004)ACC848, 2005ACJ298
JUDGMENT P.C. Agrawal, J.
1. By the impugned order, the Commissioner for Workmen's Compensation ('Commissioner' for short) has awarded Rs. 39,912 as compensation with interest at the rate of 9 per cent per annum since 6.8.1987 to be paid within 3 months and in default of payment, has awarded the penalty of 25 per cent with the direction that both the parties shall bear their own costs.
2. The appellant was employed as truck driver on truck No. RSO 5000 owned by Nirmal Kumar, R-l, on 6.8.1987, the truck was overturned due to sudden mechanical failure and the appellant suffered fracture of right humerus with partial radial nerve palsy, compound fracture of 5th metacarpal, first phalanx of ring and little finger of left hand and compound fracture of 4th metatarsal of left foot. Appellant remained admitted between 6.8.1987 and 11.8.1987 in Government Hospital and then in the hospital of Dr. Ramsingh between 13.8.87 and 9.10.1987. As per claim of appellant, he has suffered total permanent disability and has become incapable of driving any heavy motor vehicle. Such allegations had been denied by the insurance company, R-2. The Commissioner relying upon the statement of Dr. Ravindra Gangwal, AW 1, has held that the appellant had suffered permanent disability to the extent of 40 per cent only.
3. The appellant has challenged the award firstly on the ground that he was totally disabled from driving a truck, heavy motor vehicle, his earning capacity was totally lost and thus, the award on the basis of 40 per cent physical disability had not been legal. Secondly, the penalty for default in payment of compensation should have been awarded from the period after a month of accident as envisaged under Section 4A(3)(b) and not on default of payment of awarded amount. It is noteworthy that under Section 30 of the Act, no appeal lies against any order unless substantial question of law is involved in the appeal.
4. Mishrilal, AW 3, has claimed that after the accident, both his hands do not move and he cannot drive the vehicle. Dr. Ravindra Gangwal, AW 1, had deposed that the appellant had permanent physical disability of 40 per cent, but he was incapable of driving a truck further. There was no evidence in rebuttal. The words 'total disablement' have been defined in Section 2 (1) (1) of the Act in following words:
"(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:
Provided that permanent total disablement shall be deemed to result from every injury specified in Part 1 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."
5. This provision read with Section 4 and Schedule I of the Act clearly refers not to mere physical disablement, but has reference to loss of earning capacity which may not always be co-extensive. The real question would be, whether the workman is able to perform the work for which he was employed. In Pratap Narain Singh Deo v. Srinivas Sabata, 1976 ACJ 141 (SC), a carpenter had fallen down and his left arm above elbow had to be amputated and thus, he had become unfit for work as a carpenter. The Apex Court had held his disablement total and not partial as the work of carpenter cannot be done by one hand only. In National Insurance Co, Ltd. v. Mohd. Saleem Khan, 1993 ACJ 181 (AP), as per medical evidence, permanent physical impediment or, loss of physical function had been only 50 per cent, but the workman employed as heavy vehicle driver had become unfit to drive any heavy vehicle and thus, the disability was held to be total. In Hanumantha Gowda v. Devaraju, 1996 ACJ 1253 (Karnataka), the workmen employed as driver and cleaner had suffered total disablement and they could not carry on their functions as driver or cleaner, award for permanent total disablement was confirmed by the Karnataka High Court relying upon Mohd. Saleem Khan (supra) of Andhra Pradesh High Court. In Punambhai Khodabhai Parmar v. G. Kenel Construction, 1984 ACJ 739 (Gujarat), the workman a driver had suffered in his right hand fingers, elbow and right thigh and was rendered unfit as a driver. The Commissioner had assessed the disablement at 70 per cent. Gujarat High Court held disability as total holding that the disability has to be judged from the point of view of the job which the workman was doing and if the disablement renders him unfit to do that job, the disablement is total and not partial.
6. A Division Bench of M.P. High Court which was headed by the then Chief Justice in Oriental Insurance Co. Ltd. v. Mani Ram, 2003 ACJ 1181 (MP), had held that the earning capacity of a conductor on dumper truck was affected to the extent of 100 per cent and had confirmed the order of the Commissioner on that basis. In Parwatibai v. M.P. State Warehousing Corporation, 1997 (1) MPWN 107, workman had fallen with her head load, her right leg was fractured and shortened by 2 inches, the disability was held to be 100 per cent as she could not do such a labour in her lifetime. Shankarlal v. General Manager, Central Railway, Bombay V.T., 1990 ACJ 1028 (MP), had been a case of Shunting Master who sustained fractures of tibia and fibula of right leg, fracture remained malunited resulting into shortening of leg by 4 inches, medical board had assessed the loss of earning capacity at 70 per cent. The workman was unfit to do his original job as Shunting Master, his capacity to work was held just in relation to the work for which he was engaged at the time of accident and not that such workman could work on another job with lighter duties. There had been absolutely no evidence that the employer had continued the appellant in his employment and assigned some lighter work on the same pay. Thus, certainly the Commissioner had erred in not taking the disability of the appellant as total permanent disablement.
7. The Commissioner had estimated the monthly wages at Rs. 1,300. His age was 38 years. In the Schedule IV read with Section 4 of the Act, the appellant was entitled to Rs. 1,300 x 60 per cent x 189.56 = Rs. 1,47,856.80. Thus, an enhancement of Rs. 1,00,000 is allowed to the appellant.
8. Under Section 4-A of the Act, compensation becomes payable on the date of accident. Under Section 4-A (3) (b) of the Act, penalty can be imposed if employer failed to pay the compensation within one month from the date it falls due. Thus, the Commissioner had been at fault to impose the condition that respondent No. 1 would be liable to pay the penalty only in case he fails in payment of compensation within 3 months from the date of award. Penalty of 25 per cent on the awarded amount was payable by the respondent No. 1 since one month after the accident.
9. Thus, this appeal is allowed. The respondent shall pay the enhanced compensation of Rs. 1,00,000 with interest at the rate of 9 per cent per annum since the date of accident. The respondent No. 1 shall further be liable to pay penalty at the rate of 25 per cent also on the awarded amount.