Orissa High Court
Odisha State Road Transportation ... vs Lokanath Hota on 29 August, 2013
HIGH COURT OF ORISSA: CUTTACK
F.A.O. No. 447 of 2012
From a judgment dated 18th May, 2012 passed by Commissioner for
Workmen's Compensation-Cum-Assistant Labour Commissioner, Cuttack
in W.C. Case No.276-D/2010.
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Odisha State Road Transportation Corporation,
through District Transport Manager,
Badambadi, Cuttack,
Town & District Cuttack
... Appellant
-Versus-
Lokanath Hota,
S/o. Late Sriram Chandra Hota,
At/P.O./P.S. Manamunda,
Dist: Boudh, at present Badambadi,'
Cuttack. ... Respondent
For Appellant : M/s. Braja Kishore Sahoo &
K.C. Sahoo
For Respondent : Dr. T.C. Mohanty, Sr. Advocate,
J. Mohanty, R.R. Nayak &
R.P. Bhagat
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P R E S E N T:
THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA
Date of Judgment: 29.08.2013
B.N. MAHAPATRA, J.A challenge to the legality and validity of the judgment dated 18.05.2012 passed by Commissioner for Workmen's Compensation- Cum-Assistant Labour Commissioner, Cuttack in W.C. Case No.276- D/2010 has been made in the present appeal with a prayer to set aside the impugned judgment and/or to suitably modify the same.
2. Case of the Respondent-Lokanath Hota in a nutshell is that the respondent-workman was working as a driver in a bus bearing Registration 2 No.OR-05-U-0137 belonging to the appellant-OSRTC. On 30.06.2008 at about 2.30 A.M., the said bus met with an accident at Rathagaon near Sariganda at about 2 kilometres away from Dasapalla Township while the respondent workman was on steering of the said vehicle. Since a mango tree had fallen at the turning of the road the workman had no other alternative than to apply sudden brake in order to save the life of the passengers. The said accident occurred arising out of and in course of the employment of the workman. As a result of the said accident, the left leg/foot of the workman was pressed with the body of the bus and consequently the left foot along with toe and other two fingers were amputated at Reeta Nurshing Home, Mangalabag, Cuttack while undergoing treatment. The respondent-workman has been thrown out of employment by the employer due to his permanent disability for which the Medical Board of Boudh District has issued disability certificate, vide Exhibit-3, which shows permanent partial amputation of left foot to the extent of 50% and thus he became Orthopedically handicapped as per the guideline of the Ministry of Welfare, Government of India, Gaz. Notification No.4-2/83, HW III dated 06.08.1986. At the time of accident, the workman was 55 years old and was earning Rs.4,000/- per month. Learned Commissioner after hearing the parties awarded compensation of Rs.3,25,344/- treating the loss of earning capacity at 100% with a direction to pay the said amount together with 12% interest from the date of accident till the date of payment. The appellant though deposited the aforesaid awarded amount before the Commissioner, yet they have not deposited the 3 interest amount. Challenging the said judgment of the Commissioner, the appellant has filed the present appeal.
3. Mr. B.K. Sahoo, learned counsel for the appellant submitted that the claimant-respondent was engaged as a driver to drive the bus of the appellant in the route Cuttack to Bolangir. The respondent has examined himself as P.W.1 and exhibited the documents of which Ext.3 is the disability certificate issued by the C.D.M.O., Boudh showing 50% disability. In his evidence, the claimant has stated that his left leg has been amputated, but in cross-examination he has stated that two fingers of left foot were amputated and other three fingers are existing. The defence witness has stated that two fingers other than big toe of the claimant- respondent have been amputated. This part of the defence evidence has not been shaken in cross examination by the claimant nor there has been any suggestion given to the effect that the foot of left leg has been amputated. In Exhibit-3, the disability certificate, in which the full size photograph has been affixed also shows that the left leg and foot are intact. From the evidence of both P.Ws 1 and 2 so also Exhibit-3 it is crystal clear that neither the left foot nor the left leg of the workman has been amputated instead two fingers other than big toe of left foot have been amputated. Due to rash and negligent driving of the vehicle, the claimant-respondent has caused damage to the property of the Corporation and injuries of several passengers, burdening number of claim cases against the Corporation. For such misconduct, he was charge-sheeted and after a departmental proceeding, he was imposed punishment of compulsory retirement. On his 4 own admission, the workman was capable to drive the vehicle after treatment. The learned Commissioner has not given any finding as to which part of the body of the claimant has been amputated; whether the left leg or left foot or two fingers of the left foot. He has assessed the loss of earning capacity of the workman at 100% and computed compensation amount at Rs.3,25,344/-
4. Placing reliance upon Section 4(1)(c) of the W.C. Act, Mr. Sahoo submitted that 100% loss of earning capacity can only be attributed in case of injury which is permanent total disablement, falling under Part-II of Schedule-I. The case of the claimant comes under permanent partial disablement since he is not unfit for all work. There is also no evidence by the treating doctor that he was unfit to drive the vehicle. Since two fingers of the left foot other than big toe have been amputated, that will not make him unfit for driving the vehicle since the pressure on the brake of the vehicle is to be applied on the big toe along with foot. Placing reliance upon the judgment of the Hon'ble Supreme Court in the case of Pratap Narain Singh Deo vs. Shrinvas Sabata and another, AIR 1976 SC 222, Mr. Sahoo submitted that the compensation is to be determined with reference to loss of earning capacity and not on loss of physical capacity and the said earning capacity is to be examined with reference to the nature of job the workman was doing at the time of accident. Hence, the loss of earning capacity will be as per Schedule at Sl.No.43 i.e. 5%. Accordingly, the claimant is entitled to get compensation of Rs.13,555/-. 5
5. Further, placing reliance upon the judgment of the Hon'ble Supreme Court in the case of Oriental Insurance Co. Ltd. vs. Md. Nasir and others, (2009) 6 SCC 280, Mr. Sahoo submitted that in the case of a driver who suffered injury on his right leg, the Commissioner held 15% disability but loss of his earning capacity was 100%. The Hon'ble Supreme Court held the loss of earning capacity at 15% not 100%.
It was argued that the decision of this Court in the case of Kunei Minz vs. R.C. Nayak and another, 2008 (II) OLR (FB) 820 which has been relied upon by the Commissioner has no application to the present case, since in that case the workman working as Khalasi has got amputation of his left hand below shoulder, whereas in the present case there has been amputation of two fingers of left foot. There is no evidence that the claimant was unfit to drive vehicle. Mr. Sahoo emphatically submitted that the disability certificate cannot be accepted, since the doctor who has treated the claimant has not been examined during the trial of the case. In the decision of this Court in Divisional Manager, United India Insurance Co. vs. Prabhat Kumar Dhal and others, 88 (1999) CLT 544, it has been held that when the doctor who had treated the claimant has not been examined, the disability certificate cannot be accepted. In the instant case, during cross examination of P.W.1, it was also suggested that the said certificate has been manufactured and the doctor has not been examined. Concluding his argument, Mr. Sahoo, learned counsel for the appellant prayed to allow the present appeal.
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6. Dr. T.C. Mohanty, learned Senior Advocate appearing for the claimant-Respondent submitted that the employment of the workman, injury sustained in the accident arising out of and in course of employment of the workman and his age are not in dispute. The only dispute raised by the employer is with regard to the loss of earning capacity. According to Dr. Mohanty, the loss of earning capacity shall be assessed as per the Schedule of injury of the Workmen's Compensation Act which will be much more than 50%. The disability certificate (Ext.3) filed by the workman before the Commissioner has not been disputed by the appellant. The learned Commissioner has rightly accepted the disability certificate and marked the same as Ext.3 as per Section 4 of the Evidence Act presuming the same to be true. A Full Bench of this Court in the case of Kiran Sahu after him Uma Sahuani and others vs. Thakur Sahu and others, AIR 1972 Orissa 158 (FB) held that when the electoral roll, which is a public document, is produced before the Court, the Court is required to presume its genuineness. Similarly, the Full Bench of this Court has accepted the PAN Card and copy of IT return in MACA No.100 of 2006 presuming the same to be true when the same were not challenged by opposite party No.2 therein. Since the disability certificate produced by the respondent is not disputed by the appellant, the same should be presumed to be correct as per Section 4 of the Evidence Act. Therefore, only vital question that arises for consideration is the extent of loss of earning capacity of the workman.
7. Dr. Mohanty, learned Senior Advocate further submitted that the workman was a driver by profession and his left foot along with toe and 7 two other fingers have been amputated as a result of which he is unable to apply brake, clutch and accelerator; so it is not possible on his part to drive any vehicle because of the fact that there involves risk of life of number of passengers in a public vehicle. Moreover, the victim has been thrown out of employment by the employer for the said reason for which he is certainly entitled to get compensation for loss of 100% earning capacity. Therefore, the learned Commissioner has rightly held the loss of earning capacity at 100% irrespective of the percentage of disablement because the workman in this case cannot drive the bus at all.
8. Dr. Mohanty further submitted that the employer is liable to pay interest @12% per annum on the award amount of Rs.3,25,344/- with effect from the date of accident, i.e., 30.06.2008 till deposit of the said amount with the Commissioner, i.e., 01.08.2012. In support of his contention, Dr. Mohanty, placing reliance upon the judgments of the Hon'ble Supreme Court in the case of Pratap Narain Singh Deo (supra), Kerala State Electricity Board and another vs. Valsala K. and another, 2000(1) TAC 6 SC 3; Oriental Insurance Co. Ltd. vrs. Siby George and other, 2012 (4) TAC 4 (SC), submitted that the appellant is liable to pay interest of Rs.1,39,419/- @ 12% per annum on Rs.3,25,344/- from 30.06.2008 to 31.07.2012. Since the employer has deliberately failed to deposit the interest amount before the Commissioner for which they are now liable to pay penalty to the extent of 50% of the award amount as per Section 4-A of the W.C. Act.
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9. On rival contentions of the parties, the following questions fall for consideration by this Court:
(i) Whether a driver of a vehicle whose left foot along with toe and other two fingers were amputated in an accident arising out of and in course of employment as a workman and made him unfit for continuing in the same work can claim compensation for loss of earning capacity even though there may not be any factual loss of earning?
(ii) Whether loss of earning is distinct from loss of earning capacity?
(iii) Whether the learned Commissioner has rightly held that the loss of earning capacity is 100% irrespective of percentage of disability because the workman driver cannot drive the bus at all?
(iv) Whether the respondent-workman is entitled to get interest @12% per annum on the awarded amount of Rs. 3,25,344/- with effect from the date of accident i.e. 30.06.2008 till the date of deposit on 01.08.2012 ?
10. Since question Nos.(i), (ii) and (iii) are interlinked, they are dealt with together.
11. The observations/findings made by the learned Commissioner in the impugned judgment, which are relevant in the instant case, are extracted below:
"....So far the age of the applicant is concerned, the applicant has stated in his claim application that he was aged about 55 years at the time of accident and corroborates the same in his oral evidence. The Identity Card of the petitioner filed in this case and marked as Exbt.2 clearly proves that the applicant was aged about 55 years at the time of accident. So this 9 being the position, relying on the evidence and the documents available on record and admission made by the opp. party in their written statement that the date of birth of the applicant in the service book is 03.04.1953, I fix the age of the applicant as 55 years which is the completed years on last birth day of the applicant as per the provisions of W.C. Act. So far wage is concerned, the applicant in his claim has stated that he was getting Rs.4,000/- as his wages, and in his evidence as P.W.1 he has corroborated the same. xxxxxxx So far loss of earning capacity of the workman is concerned, which is very much vital for assessment of compensation of the workman, the applicant in his claim application as well as in his evidence P.W.1 has categorically stated that due to the accident the applicant sustained fracture of left leg which has been amputated while undergoing treatment in Rita Clinic and Nurshing Home, Mangalabag Cuttack. The discharge certificate Exbt.6 issued by Rita Nurshing Home, Mangalabag, Cuttack clearly corroborates that the left foot was amputated in the said Nurshing Home consequent upon the grievous injury sustained by him in the alleged accident "
xx xx xx "So this being the position, taking into consideration the avocation of the applicant as a driver of bus and relying on the decisions of the Hon'ble Supreme Court and Full Bench of the Hon'ble High Court, I fix the loss of earning capacity of the applicant at 100% for the purpose of calculation of compensation amount."
12. To deal with the aforesaid questions, it is necessary to know what is contemplated under Section 4(1)(c) of the Act, 1923. The relevant portion of the said provisions is extracted below:
"4. Amount of compensation.--(1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:-
xx xx xx
(c)where permanent (i) in the case of an injury
partial disablement specified in Part II of Schedule I,
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results from the such percentage of the
injury compensation which would have
been payable in the case of
permanent total disablement as
is specified therein as being the
percentage of the loss of earning
capacity caused by that injury;
and
(ii) in the case of an injury not
specified in Schedule I, such
percentage of the compensation
payable in the case of permanent
total disablement as is
proportionate to the loss of
earning capacity (as assessed by
the qualified medical practitioner)
permanently caused by the
injury. .............."
(Underlined for emphasis )
A bare reading of the above provision makes it clear that the compensation is to be paid to an injured, where permanent/partial disablement results from injury for loss of earning capacity and not for loss of earning.
13. This Court in the case of Executive Engineer, Orissa State Electricity Board, Salipur Electrical Division and others vs. Kedar Charan Lenka, 1996 (II) OLR 332, held as under:
"5. Board's stand is absence of loss of earning, while claimant lays emphasis on loss of earning capacity. The two concepts have conceptual difference. In case there is no loss of earning and there is continuance of engagement, a reference to Sec. 4(1)(c)(ii) of the Act is necessary to appreciate the distinction. The plea of employers that in case of continuance of engagement and non-reduction in earning compensation is not payable has not found favour with Courts. As observed by the House of Lords in the case of Ball v. William Bunt and Sons Ltd.:
1912 AC 496, the Act regarded a workman only as a wage- earner and was concerned not with physical pain on suffering or disfigurement to which a workman might be subjected by accident; but only with the loss of power to earn wages resulting from the inquiry. Lord Denning in 11 Fairloy v. John Thomson : (1973) 2 Lloyd's Sop. 40 observed as follows:
"It is important to realize that there is a difference between an award for loss of earnings as distinct from compensation for loss of earning capacity. Compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution of earning capacity is awarded as part of general damages."
Similar view has also been taken by the Court of Appeal, Civil Division, England in Moeliker v. Ravorile and Co. Ltd. : 1977 SCJ 364. "In capacity for work" is not the same thing as "in capacity to work". Latter means the loss or diminution of wage-earning capacity and it includes inability to work if that be the result of the accident. Calcutta High Court in Ram Naresh Singh v. Lodha Colliery Co. : (1920) Ltd. : 1973 Lab. IC 1656 : Sarat Chaterjee and Co. (P) Ltd. v. Mohd. Khalil " 1979 ACJ 106; and the Rajasthan High Court in Executive Engineer, PWD Udaipur v. Narain Lal : 1978 ACJ. 163. have adopted the view. In considering loss of earning capacity in the case of a "permanent partial disablement", the comparison between the wages drawn by workman before and after the accident from his employer at the time of accident is not a determinative factor. If that be so, a cunning employer to tide over liability may offer a temporary employment to the claimant-workman to deprive the latter his entitlements under the Act. That would be against the legislative intent. This Court had also occasion to deal with an almost similar case where plea of existing job allotment and non-reduction in wages was involved. The present appellant was the employer in that case. (See Debaki Swain and another v. Executive Engineer, Electrical Division, Bhawanipatna, Orissa State Electricity Board : 1988 ACJ 836). Plea that there being no loss in the earning, compensation could not have been awarded was not accepted. The matter was also elaborately discussed in Chief Workshop Manager (P), Carriage Repair Workshop, Mancheswar Railway Workshop, Bhubaneswar v. Sri Akshya Kumar Rout : 80 (1995) CLT 594. Legislative intent is to consider loss of earning capacity in case of permanent/partial disablement. The effect of any temporary engagement and/or temporary job may practically result in no reduction in emolument. That does not have any determinative effect. Plea of the Board and its functionaries is without any merit."
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14. In the case of Prasanta Kumar Majhi vs. Managing Director, Orissa Mining Corporation, Bhubaneswar and Ors., 2001 LLR 695, this Court has held that loss of earning capacity is the basis for grant of compensation. Where there is no loss of earning capacity, an employee is not entitled to get compensation under the Act. It is further held that it is not possible for the High Court to agree as a general proposition that continuation in the same employment without any loss in wages cannot mean that there is no loss of earning capacity. It depends upon facts of each case. There can be loss of earning capacity even if there is no actual loss of wage. But when the injured-workman continues to do the same work without any difficulty and earns the same wage, he cannot be said to have suffered any loss of earning capacity.
15. This Court in the case of Kunei Minz (supra), held that in case of specific instances percentage as specified in the Schedule should be accepted and compensation should be awarded without any proof of loss of earning capacity, but a claimant is not debarred from proving that he has suffered higher percentage of loss of earning capacity.
16. Facts which are not in dispute are that on 30.06.2008 at about 2.30 A.M., the bus bearing Registration No.OR-05-U-0137 belonging to the appellant while being driven by the respondent, met with an accident at Rathagaon near Sariganda. The said accident took place in course of employment of the workman. As a result of such accident, according to the workman-driver, his left foot along with his toe and other two fingers were amputated and he is unable to drive any vehicle. Thus, he has lost 100% 13 earning capacity. Case of the appellant is that loss of 100% earning capacity can only be awarded in case of injury of permanent disablement which fell under part-1 of Schedule-I. Respondent's case comes under permanent partial disablement since he is not unfit for all the works.
17. It is necessary to refer to the disability certificate issued under Exhibit-3. The disability certificate has been issued under Rule 4(2) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and full Participation) Rules, 1996 and as per guideline given by the Ministry of Welfare, Government of India, Gazette Notification No.4-2/83. HW III Dated 6th August 1986) certifies that the claimant-respondent is a physically handicapped; he suffers from partial amputation and he comes under the category of "Orthopedically Handicapped". His percentage of disability is 50%. Thus, the above certificate shows that the respondent-workman is physically handicapped with partial amputation of foot.
18. Needless to say that so far driver of a vehicle is concerned, foot is necessary to drive the vehicle; if any portion of foot with two fingers of a driver is amputated, he cannot drive the vehicle and in that event it would be a case of loss of 100% earning capacity of a driver.
19. At this juncture, it will be beneficial to refer to the judgment of the Hon'ble Supreme Court in the case of Pratap Narain Singh Deo (supra), wherein the Hon'ble Supreme Court held as under:
"5. The expression "total disablement" has been defined in Section 2 (I) of the Act as follows: "
(1) "total disablement" means such disablement, whether of a temporary or 14 permanent nature, as incapacitates work- man 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 true 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."
20. Thus, in the decision of the Hon'ble Supreme Court in Pratap Narain Singh Deo (supra), upon which reliance has been placed by learned counsel for the appellant, it is held that the compensation is to be determined with reference to loss of earning capacity and not on loss of physical capacity and the said loss of earning capacity is to be examined with reference to the nature of job the workman was doing at the time of accident.
21. In the instant case, undisputedly the left foot along with two fingers were amputated. Therefore, the driver cannot apply the clutch and consequentially cannot change the gear of the vehicle. Nobody shall engage a person having amputated foot to drive either goods or passenger carrying vehicles in view of safety of the vehicles, goods and lives of the passengers, as the case may be. Therefore, what is material is the loss of physical capacity with reference to the nature of the job, the workman was doing at 15 the time of accident. In case of a surgeon, if one finger in which he uses scissors for doing operation is amputated, he will be totally unfit to undertake surgical operation. In case of a surgeon, even if, all fingers of his foot are amputated that may not affect the surgical operation work. Thus, in case of amputation of the foot of a driver with two fingers, even if it is partial amputation, that will not make him fit to drive a vehicle.
22. In the fact situation, this Court is of the view that the amount of compensation awarded by the Commissioner in the impugned judgment holding the loss of earning capacity of respondent-driver at 100% is just and proper.
23. Question No.(iv) is as to whether the respondent-workman is entitled to get interest @12% per annum on the awarded amount of Rs. 3,25,344/- with effect from the date of accident i.e. 30.06.2008 till the date of deposit on 01.08.2012.
24. In the present case, the Commissioner in his judgment dated 18th May, 2012 directed the appellant to deposit Rs. 3,25,344/- before the learned Commissioner within a period of thirty days failing which the appellant shall be liable to pay interest @12% per annum from the date of accident. Admittedly, the claimant-respondent has not filed any appeal or cross appeal challenging any part of the order of the Commissioner. In the fact situation, this Court does not think it proper to interfere with the order of the Commissioner with regard to payment of interest.
25. In view of the above, the learned Commissioner is directed to pay the amount of compensation of Rs.3,25,344/- along with interest as 16 per his order within a period of one month from the date of production of certified copy of this judgment.
26. In the result, the appeal is dismissed.
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B.N.Mahapatra, J.
High Court of Orissa, Cuttack Dated 29th August, 2013/ssd/ss/skj