Jammu & Kashmir High Court
Ghulam Fatima And Others vs Rajinder Singh And Another on 27 April, 2023
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
HIGH COURT OF JAMMU, KASHMIR AND LADAKH
AT JAMMU
Reserved on : 13.04.2023
Pronounced on: 27.04.2023
MA No. 474/2010 (O&M)
Ghulam Fatima and others .....Appellant(s)/Petitioner(s)
Through: Mr. Navneet Dubey, Advocate
Vs
Rajinder Singh and another ..... Respondent(s)
Through: Mr. Sanjay Kr. Dhar, Advocate
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGEMENT
1. The present appeal is directed against the award dated 19.04.2010 passed by the Commissioner (Assistant Labour Commissioner) under Workmen‟s Compensation Act, 1923, Jammu (for short "the Commissioner") for enhancement of the compensation awarded to the original appellant, namely, Bashir Ahmed from Rs.1,93,590/- to Rs. 7,02,478/-.
2. The status of the original appellant as a driver, having a commercial driving license to drive a heavy motor vehicle is an admitted fact. The appellant while driving a vehicle, suffered retinal detachment haemorrhage in the vitreous chamber of the left eye because of the shooting stone as result of which despite best possible efforts, his left eye could not be saved and as per medical opinion, he became totally blind in his left eye.
3. The original appellant approached the Commissioner under the Workmen‟s Compensation Act, 1923 for grant of compensation on account of loss of 2 MA No. 474/2010 earnings occasioned due to loss of complete vision of left eye. The respondent No. 1-employer of the original appellant filed the response pleading therein that the original appellant was a driver of his truck and because of the injuries suffered by him, his services were terminated. The respondent No. 2- Insurance Company also filed the response and objected the claim petition on various grounds. The original appellant besides examining himself, was also examined by Dr. R. D. Sood in support of his claim. In rebuttal, no evidence was led by the respondents. The learned Commissioner, after considering the pleadings and evidence led by the original-appellant, awarded an amount of Rs. 1,93,590/- as compensation along with simple interest at the rate of 12% per annum with effect from 20.05.2010 in favour of the original appellant. The award was ordered to be satisfied by the respondent No. 2. The learned Commissioner while awarding the compensation has assessed the loss of earning capacity of the original appellant as 40% in view of the injury figuring at serial No. 26 of Schedule-I of the Act.
4. The deceased appellant had assailed the award primarily on the ground that he was working as a commercial driver but because of the injury suffered by him, his earning capacity as driver had been reduced by 100%, therefore, the compensation was required to be assessed as per the Clause-4 of part-I of the Schedule-I.
5. The following substantial question of law arises for the consideration of this Court:
"Whether the disability suffered by the original appellant i.e. loss of one eye, who was a driver by profession, was required to be treated as permanent total disablement?"3 MA No. 474/2010
6. Mr. Navneet Dubey learned counsel appearing for the appellants vehemently argued that the learned Tribunal has ignored the pleadings as well as the evidence led by the original appellant, as he had categorically pleaded that his earning capacity has been reduced by 100% and had also led the evidence to that effect. As the original appellant became incapacitated to work as a driver after the injuries suffered by him, so the disability suffered by him was required to be treated as permanent total disablement. He placed reliance upon the judgment of the Hon‟ble Supreme Court in case "Arjun v. Iffco Tokio Gen. Ins. Co. Ltd. and anr. (2022) 5 SCC 706".
7. Per contra, Mr. Sanjay Kumar Dhar, learned counsel appearing for Insurance Company vehemently argued that the original appellant had suffered an injury that formed the part-2 of Schedule-1, as such, the injury was required to be treated as permanent partial disablement. He placed reliance upon the judgment of the Apex Court in "Amar Nath Singh v. Continental Constructions Ltd, 2001(10) SCC 760" the judgment of the Full Bench of Kerala High Court in "Vanajakshan vs Joseph reported in 2003 ACJ 1363".
8. Heard and perused the record.
9. The deceased appellant filed an application for grant of compensation on account of injury suffered by him, thereby pleading in para-4 of the application that his earning capacity has been reduced by 100%. The respondent No. 2 simply denied the averments made in the said para of the application and it was not the case of the respondent No.2 before the Commissioner that injury was required to be treated as partial permanent disablement. The original appellant in his statement stated that his earning capacity has been reduced by 100% and the said deposition was never 4 MA No. 474/2010 disputed by the respondent No. 2 during cross-examination. In cross- examination, Doctor R. D. Sood, who examined the deceased appellant, categorically stated that the patient was completely blind so far as left eye is concerned and deposed that the patient can perform sedentary jobs except the driver. Therefore, it is proved that he can perform only sedentary jobs.
10. The Full Bench of Kerala High Court in "Vanajakshan vs Joseph (supra) has held as under:
" 25. In view of the above it is held that (1) The competent authority has to award compensation on the basis of evidence adduced by the parties during the proceedings.
(2) The compensation has to be assessed with reference to the loss in earning capacity and not on the basis of the ability to perform the duties of the particular job, which was being performed by the workman. If, in a given case a workman is able to prove that he was incapable of doing any other job, the competent authority shall consider and decide the matter in the light of the evidence as adduced by the parties."
11. Further in Amar Nath Singh's case (supra), the Hon‟ble Apex Court rejected the contention of the appellant therein that "because of loss of one eye, the earning capacity of the appellant was reduced from what he was capable of at the time of accident". That judgment was rendered in those facts and circumstances of the case after taking note of the claim made by the appellant therein that he was fit for the work and his evidence disclosed the same. This judgment, as such, being rendered in peculiar facts and circumstances of the case, is not applicable in the present case.
12. In „Arjun v Iffco Tokio Gen. Ins. Co. Ltd.'s case (surpa)", the appellant was a driver and he met with an accident, as a result of which, his right upper limb above the wrist joint was amputated. The Commissioner came to the conclusion that the appellant suffered 100% disability. The High court in 5 MA No. 474/2010 appeal reduced the compensation by assessing the partial permanent disability as 70%. The Hon‟ble Supreme Court after taking note of the statement of the doctor observed as under:
"10. There is no dispute that the appellant suffered from disablement of permanent nature. The disablement has incapacitated him from doing the work which he was capable of doing. The said work was of driving a vehicle. Therefore, the learned Commissioner for Workmen‟s Compensation was right in holding that the disability of the appellant will have to be treated as 100% disability. Hence the case of the appellant will be covered by the definition of „total disablement‟"
13. In "Partap Narayan Singh Deo v Srinivas Sabata and anr, (1976) 1 SCC 289", the Apex Court has held as under:
"5. The expression "total disablement" has been defined in section 2(1) (e) 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 of acromion to less than 4 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."
14. In K. Janardhan vs United India Insurance Co. Ltd and anr, (2008) 8 SCC 518, the appellant was a tanker driver, who met with an accident resulting into amputation of the right leg up to the knee joint. The 6 MA No. 474/2010 Commissioner came to the conclusion that the appellant suffered 100% loss of his earning capacity. The High Court in appeal accepted the contention of the respondents that as per the Schedule of the Act, the loss of leg on amputation amounted to 60% reduction in the earning capacity. The Hon‟ble Apex Court after taking note of the injury suffered by the appellant/driver of the vehicle, has observed as under:
"6. Applying the ratio of the cited judgment to the facts of the present case we are of the opinion that the appellant herein has also suffered a 100% disability and incapacity in earning his keep as a tanker driver as his right leg had been amputated from the knee. Additionally, a perusal of Sections 8 and 9 of the Motor Vehicles Act 1988 would show that the appellant would now be disqualified from even getting a driving licence."
15. Now, the ratio of all these judgments is that authorities under the Act has to assess the loss in the earning capacity of the workmen depending upon the evidence brought on record. So far as instant case is concerned, there is unchallenged statement of the deceased-appellant that his earning capacity has been reduced by 100%. Further the statement of Dr. R. D. Sood has clearly proved that the patient was completely blind so far as his left eye is concerned and that the patient can perform sedentary jobs, meaning thereby that the deceased-appellant was not capable of performing all the jobs which he otherwise could have performed but for the accident.
16. A perusal of the impugned award reveals that the learned Commissioner has wrongly reproduced the evidence of the Doctor by stating that the original appellant can do other jobs but not as a driver.
17. In view of the above, this Court is of the considered view that the learned Commissioner has wrongly considered the statement of Doctor R. D. Sood 7 MA No. 474/2010 and has nowhere appreciated the statement of the original appellant about reduction of his earning capacity by 100%.
18. In view of the above, the injury suffered by the original appellant was required to be treated as "total permanent disablement" and therefore, in terms of section 4(1)(b) of the Workmen‟s Compensation Act, 1923, the amount of compensation required to be paid to the original appellant ought to have been equal to the 60% of the monthly wages of the injured workmen multiplied by the relevant factor. As the original appellant was 33 years of age, so the relevant factor would be 201.66 therefore, taking into amount of salary of the original appellant as Rs. 4000 per month, the appellant is entitled to compensation of Rs. 4,83,984/.
19. Accordingly, the original appellant is held entitled to compensation of Rs.
4,83,984/- and award impugned is accordingly modified. The original award dated 19.04.2010 for payment of Rs. 1,93,590/- stands satisfied by the insurance company. So far as the balance amount is concerned, it shall carry the interest at the rate of 12% per annum from 26.09.2006 i.e. the date of accident. The same shall be deposited within a period of one month in the Registry of this Court and thereafter the same shall be released in favour of the appellants (legal representatives of original appellant).
20. Disposed of.
(RAJNESH OSWAL) JUDGE Jammu 27.04.2023 Rakesh Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No