Andhra HC (Pre-Telangana)
Nakka Rambabu vs O.Akka Rao And Another on 8 December, 2014
Author: S. Ravi Kumar
Bench: S. Ravi Kumar
THE HON'BLE SRI JUSTICE S. RAVI KUMAR
CIVIL MISCELLANIOUS APPEAL No.4454 of 2003
08-12-2014
Nakka Rambabu .Appellant.
O.Akka Rao and another......Respondents.
Counsel for the Petitioner: Sri T. Ravi Kumar
Counsel for Respondent No.1: --
Counsel for Respondent No.2: Sri M/s.Bhaskara Rao
Bandarupalli
<Gist :
>Head Note:
? Cases referred:
1. 2000 (1) ALD 554
2. 2000 (2) ALD 752
3. 2000 (2) ALD 815
4. 2013 (5) ALD 249
THE HON'BLE SRI JUSTICE S. RAVI KUMAR
CIVIL MISCELLANIOUS APPEAL No.4454 of 2003
Date:08.12.2014
The Court made the following :
THE HON'BLE SRI JUSTICE S. RAVI KUMAR
CIVIL MISCELLANIOUS APPEAL No.4454 of 2003
JUDGMENT:
This appeal is preferred against orders dated 30-08- 2003 in W.C.No.57/2001 on the file of Commissioner for Workmens Compensation and Assistant Commissioner of Labour, Vijayawada.
2. Brief facts leading to this appeal are as follows:
Appellant herein filed application before Assistant Commissioner of Labour seeking compensation for the injury sustained by him in an accident during course of employment as driver of lorry bearing No.AHH 3224 owned by first respondent herein and insured with second respondent herein. According to appellant, on 07-07-2000, when he was proceeding from Kalluru to Vijayawada during course of employment as driver of lorry bearing No.AHH 3224, at about 2:30 P.M., one RTC Bus dashed his lorry, as a result, he sustained injuries and he was shifted to Government Hospital, Tirupathi and thereafter, University Government Hospital, Vijayawada and from there to Osmania Hospital, Hyderabad. Appellant claimed a sum of Rs.2,00,000/- as compensation on the ground that he is drawing Rs.2,500/- towards salary and on account of accident, he is not able to perform his duties as driver and both the owner and insurance company are liable to pay compensation. On these allegations, on a consideration of oral and documentary evidence, Assistant Commissioner of Labour, Vijayawada granted compensation of Rs.64,256/- by taking loss of earning capacity as 30% on the basis of disability certificate issued by the Medical Officer. Aggrieved by the quantum, claimant preferred the present appeal contending that the Assistant Commissioner of Labour ought to have taken the loss of earning capacity as 100% since in view of the injury, the appellant lost his driving profession and earning capacity.
3. Heard arguments.
4. Advocate for appellant submitted that learned Assistant Commissioner erred in granting compensation by calculating the disability at 30% without considering the facts that shortening of leg is a permanent disability and the loss of earning capacity should have been taken as 100% instead of 30%. He submitted that in similar situation, this Court in Lingampalli Rajam (died) by LRs v. Colliery Manager, Morgans Pit Singareni Collieries Co., Ltd., granted compensation by taking shortening of 1/2" as 100% disability and in this case, shortening of leg is by one inch, therefore, the order of the Assistant Commissioner is incorrect. He further submitted that in Pasupuleti Ramarao v. Pothinaboina Durga Rao and another also this Court treated removal of thumb as 100% disability. He submitted that in Oriental Insurance Company Limited, Hyderabad v. Koti Koti Reddy and another , wherein the lower Tribunal took the disability as 100%, though medical certificate disclosed that permanent disability was only 30%, lower Court order was confirmed by relying on a judgment of this Court, therefore, the findings of the Assistant Commissioner of Labour treating 30% disability is not correct. He also relied on a decision of this Court in N. Sree Ramulu @ Sree Rama Murthy v. B. Lakshmi Narayana and another .
5. On the other hand, Advocate for Insurance Company submitted that when the medical evidence do show that permanent disability is only 30%, contention of the claimant that he lost earning capacity by 100% is not correct and the Assistant Commissioner of Labour has rightly fixed compensation by taking the disability at 30% and that there are no ground to interfere with the findings of the lower authority.
6. Now the point that would arise for my consideration in this appeal is whether the order in W.C.No.57/2001, dated 30-08-2003, on the file of Commissioner for Workmens Compensation and Assistant Commissioner of Labour, Vijayawada is legal, proper and correct?
7. Point:-There is no dispute with regard to accident and the relationship between the appellant and first respondent herein. The appellant herein was an employee of the first respondent herein as on the date of accident and he was driver by profession. It is also not in dispute that on account of accident, there was shortening of leg by one inch and the appellant sustained some disability. On behalf of the appellant, the Medical Officer, who gave treatment is examined and through him, disability certificate is marked in which, this disability was assessed as 30%. This Court in N. Sree Ramulus Case (4 Supra), after analyzing law on the subject from the pronouncements of Supreme Court and High Court framed the following principles to determine compensation payable under Workmens Compensation Act. The principles culled out are as follows:-
(a) All injuries or permanent disabilities arising from injuries do not result in loss of earning capacity.
(b) Where permanent partial disablement results from an injury and the said injury is specified in Schedule I, it would be covered by Section 4(1)(c)(i) of the Act. In such a case, the workman would be entitled to such percentage of 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;
(c) Where permanent partial disablement results from an injury and the injury is not specified in Schedule I, it would be covered by Section 4(1)(c)(ii) of the Act. In such a case, the workman would be entitled to such percentage of compensation which would have been 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.
(d) In assessing loss of earning capacity in a case of permanent partial disablement resulting from an injury not specified in the Schedule I, the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in relation to different injuries specified in Schedule I.
(e) The opinion of the medical practitioner as to the percentage of loss of earning capacity would be normally binding on the Court where permanent partial disablement results from an injury not specified in Schedule I.
(f) The importance of medical evidence is only in case where disablement in performing duties which the workman was performing earlier cannot be decided without the aid of medical evidence. In case where it can be so decided with or without medical evidence (like amputation of limbs), medical evidence is not relevant and the question of the victim not suffering specified injuries is also not relevant.
(g) Loss of earning capacity is not a substitute for percentage of physical disablement and is only one of the factors taken into account.
(h) The loss of earning capacity arising from a permanent disability may be different from the percentage of permanent disability. Equating the percentage of loss of earning capacity to the percentage of permanent disability would result in the award of either too low or too high a compensation. What requires to be assessed is the effect of permanent disability on the earning capacity of the injured. This involves ascertainment of what activities the claimant can carry on in spite of permanent disability and what he could not do as a result of the permanent disability; ascertainment of his avocation, profession and nature of work before the accident and also his age; and finding out whether he is totally disabled from earning any kind of livelihood (or) whether in spite of permanent disability, he can still effectively carry on the activities and functions, which he was earlier carrying on (or) 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. In para.14 of (2011) 1SCC 343 and in para.8 of (2012) 2 SCC 267 appropriate guidance is available.
(i) The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Commissioner/Court with reference to the evidence in entirety.
(j) Where a claimant is a workman who suffered injuries in an accident and his employer either provides for pension after retiring the workman on the grounds of medical invalidation or the dependants of the claimant are given appointment on compassionate grounds, he has a duty to disclose these facts and they would have a material bearing on the ascertainment of the percentage of loss of earning capacity.
(k) It is a question of fact in each case whether there is permanent total disablement on account of the injuries suffered by the claimant. In a given case, the loss of earning capacity caused by an injury can amount to 100% disablement. But, if the injured claimant is in a position to earn a living by doing a job other than the one which he was doing at the time of his accident, he cannot be said to have suffered 100% disability.
(l) Any scaling down of the compensation should require something more tangible than a hypothetical conjecture that notwithstanding the disability, the victim could make up for the loss of income by changing his vocation or by adopting another means of livelihood. The party advocating for a lower amount of compensation for that reason must plead and show before the Tribunal that the victim enjoyed some legal protection (as in the case of persons covered by the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995) or in case of the vast multitude who earn their livelihood in the unorganized sector by leading cogent evidence that the victim had in fact changed his vocation or the means of his livelihood and by virtue of such change he was deriving a certain income.
8. From the above points, it is clear that loss of earning capacity is different from permanent disability and the percentage of loss of earning capacity and permanent disability cannot be equated. For deciding loss of earring capacity, what is to be seen is that the profession of the claimant, which he was carryingon prior to the accident, can be carried out in spite of such disability. The Medical Officer, who is examined as witness deposed in his evidence that the appellant cannot sit and squat normally and he needs assistance of a walker for walking. Admittedly, the appellant was a driver and when he cannot sit and squat normally and cannot walk without a walker, can he drive a vehicle is the question, the answer would be definitely not. When Medical Officer clearly stated in his evidence as to the physical condition of the appellant, except putting suggestions, nothing was elicited from him to discard that statement. When the claimant in his evidence clearly stated that on account of this injury, he is not able to perform his earlier duties and he cannot drive any vehicle, no rebuttal evidence is produced to contradict the same.
9. In Lingampalli Rajams Case (1 Supra), when there was shortening of inch, it was treated as 100% loss of earning capacity. In Pasupuleti Ramaraos Case (2 Supra) & Oriental Insurance Companys Case (3 Supra) also this Court treated loss of earning capacity as 100% when the evidence on record disclosed that on account of the injury, the injured was not able to perform his earlier duties or work. Therefore, considering the evidence of the Medical Officer and the decisions of this Court referred above, I am of the view that Assistant Commissioner of Labour was not right in taking the loss of earning capacity at 30% by taking into account percentage of permanent disability, therefore, his findings to that extent are liable to be set aside.
10. For these reasons, it is held that appellant is entitled to get compensation by treating the loss of earning capacity as 100%, therefore, the order of the Assistant Commissioner of Labour in W.C.No.57/2001 is set aside and the matter is remitted back to the Assistant Commissioner of Labour to determine the total compensation payable to the appellant treating the loss of earning capacity as 100% and to pass award against the respondents herein jointly and severally who shall deposit the said amount before the Commissioner for Workmens Compensation, within 30 days of determination.
11. Accordingly, Civil Miscellaneous Appeal is allowed. No costs.
12. As a sequel, miscellaneous petitions, if any, pending in this appeal, shall stand disposed of.
__________________________ JUSTICE S. RAVI KUMAR Date:08.12.2014