Rajasthan High Court - Jodhpur
O.I.C.Ltd vs Gulab Singh And Ors on 17 October, 2019
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 66/2008
O.i.c.ltd.
----Appellant
Versus
Gulab Singh And Ors.
----Respondent
For Appellant(s) : Mr. Jagdish Vyas
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 17/10/2019
1. This misc. appeal under Section 30 of the Workmen's Compensation Act, 1923 has been preferred by the appellant- Insurance Company, claiming the following reliefs:
"It is, therefore, most respectfully prayed that this appeal may kindly be allowed with costs and the impugned judgment & award dated 21.04.2007 passed by the learned Commissioner, Workmen's Compensation, Udaipur in W.C. Case No.21/2005 (ALC) may kindly be quashed and set aside. Any other order which is deemed just and proper in the facts and circumstances of the case may kindly be passed in favour of the appellant company."
2. The matter pertains to loss of vision.
3. Learned counsel for the appellant has raised the issue of computation of compensation made by the learned Authority below, while treating the disability beyond the disability percentage mentioned in the certificate.
4. This Court has already decided the issue of treating the disability percentage more than the one shown in the medical certificate by the learned Authority in the case of The New India (Downloaded on 23/10/2019 at 08:28:53 PM) (2 of 5) [CMA-66/2008] Assurance Co. Ltd. Vs. Chand Mohd. & Anr. (S.B. Civil Misc. Appeal No.753/2006), relevant portion whereof reads as under:
"7. Heard learned counsel for the parties and the learned advocates assisting on the controversy in issue on the request of this Court and perused the precedent law cited at the Bar.
Section 4 of the WC Act exhaustively deals with the compensation on account of death in Sub-Section 1(a), compensation on account of permanent total disablement in Sub-Section 1(b) and compensation on account of permanent partial disablement in Sub-Section 1(c) and compensation on account of temporary disablement in Sub-Section 1(d). This Court takes note of the definition of partial disablement in Section 2(g) and total disablement in Section 2(l), which read as follows :-
(g) " partial disablement" means, where the disablement is of a temporary nature, such disablement as reduces the earning capacity of a workman in any employment in which he was engaged at the time of the accident resulting in the disablement, and, where the disablement is of a permanent nature, such disablement as reduces his earning capacity in every employment which he was capable of undertaking at that time: provided that every injury specified in Part II of Schedule I shall be deemed to result in permanent partial disablement;
(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:
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;"
This Court also takes note of the fact that where permanent partial disablement is resulting from the injury specified in Part-II of Schedule-I, the compensation has to be taken as payable in the case of permanent total disablement reflecting the percentage of loss of earning capacity. This includes Part-I and Part-II.
Further the injuries which are not mentioned in Schedule-I can of course be taken care of by assessing the loss (Downloaded on 23/10/2019 at 08:28:53 PM) (3 of 5) [CMA-66/2008] of earning capacity as per the certificate issued by the qualified medical practitioner.
The WC Act lays down an elaborate procedure for both the parties to lead evidence and the procedure is prescribed under Section 23 of the Act including securing of attendance of witnesses, compelling for production of documents and material objects, as per the Code of Civil Procedure.
Thus, where an exhaustive outcome has been arrived for computation of compensation under the WC Act while adhering to the provisions of Section 4, no further adjudication or application of mind is required by the Commissioner or Court but in a case where it has been pleaded by the claimant workman that his injuries are such extraordinary as it would render reduction in his earning capacity beyond the specified limits of Schedule-I and Section 4, then it shall be open for the claimant workman to adopt the procedure under Section 23 of the Act and drive home the point as to what was the extraordinary loss caused to him by the injury in question. This shall include the comparison of the injury with loss of earning capacity and the commensurating impact of the injury upon the nature of work being carried out by the claimant in question.
If the Commissioner after considering all evidence from both the sides has arrived at the factual matrix which clearly indicate that the injury in question is directly causing complete loss or a degree of loss in the current employment then the same has to be considered while granting compensation.
The best examples of co-relation between the employment and injury could be amputated leg and driver's job, amputated hand and tailor's and plumber's job etc. The precedent law cited by the learned counsel for the respondents/claimants including Pratap Narain Singh (4 Judge Bench Judgment of Hon'ble Apex Court) (supra), K. Janardan (supra), Lal Singh Rajput (supra), Chandi Dan Charan (supra), Bajaj Allianz General Insurance Company (supra), Iffco Tokio General Insurance Co. (supra) and North East Karnataka Road Transport Corporation (supra) are directly holding the field and the only judgment which gave strength to the submissions of the learned counsel appearing on behalf of the insurance companies namely, Oriental Insurance Company Limited vs. Mohd. Nasir and another (supra) has been held to be per incuriam by the Hon'ble Supreme Court in North East Karnataka Road Transport Corporation (supra).(Downloaded on 23/10/2019 at 08:28:53 PM)
(4 of 5) [CMA-66/2008] Thus, the substantial question is decided against the insurance company.
8. Now coming to the case at hand. The amputation of leg below knee of the claimant/respondent no.1 Chand Mohd. who was working as driver is undisputed. The learned authority below computed the loss of income while taking into consideration 100% disability. In light of what has been held above, the judgment and award passed by the learned authority below is well justified and does not call for any interference.
9. Resultantly, the present appeal, being devoid of any merit, is hereby dismissed.
10. All pending applications also stand disposed of."
5. Apart from the above, this Court finds that the question raised by learned counsel for the appellant is not a substantial question of law.
6. In Smt. Ram Sakhi Devi Vs. Chhatra Devi, reported in JT 2005(6) SC 167, the Hon'ble Apex Court held that without formulating substantial question of law appeal cannot be sustained.
7. In M/s. Krishna Weaving Mills, Ajmer Vs. Smt. Chandra Bhaga Devi widow of Mool Chand & Anr., reported in 1985(1) WLN 455, this Court while dealing with Workmen's Compensation Act has laid down law that unless there was a question of public importance and there was no final interpretation available while the substantial question of law was arising, the appeal under the Workmen's Compensation Act cannot be entertained. Relevant portion of the judgment reads as follows :-
"8. Moreover, under S. 30 of the Workmen Compensation Act only substantial questions of law can be agitated. In the present case, I am convinced that there is no substantial question of law involved.
9. The question of public importance and question on which no final interpretation is available are known as substantial (Downloaded on 23/10/2019 at 08:28:53 PM) (5 of 5) [CMA-66/2008] question of law. Even if this definition is further extended, it will have to bear in mind that there is vast difference between the question of law and substantial question of law. It is only when the question of law is not well settled and it is of importance, it would become a substantial questions of law. The employer should not indiscriminately file appeals against poor workman's dependents. No notice is given before Fatal Accidents to the victim and how can want of notice to employer be fatal accident again, depriving compensation to unfortunate victims or dependents in cases of the Compensation Act."
8. Since the appeal is not qualifying to have a substantial question of law, as already indicated above, which is mandatory under Section 30 of the Workmen's Compensation Act, 1923, therefore, no interference is called for in the present misc. appeal and the same is accordingly dismissed. All pending applications stand disposed of.
(DR. PUSHPENDRA SINGH BHATI),J.
34-Zeeshan/-
(Downloaded on 23/10/2019 at 08:28:53 PM) Powered by TCPDF (www.tcpdf.org)