Research › Search › Judgment

Orissa High Court · body

2002 DIGILAW 644 (ORI)

ORIENTAL INSURANCE CO. LTD. v. BINOD SINGH

2002-10-04

A.S.NAIDU

body2002
JUDGMENT : A.S. Naidu, J. - This is an appeal u/s 30 of the Workmen's Compensation Act by the Oriental Insurance Company challenging the award passed by the Additional District Magistrate and Commissioner for Workmen's Compensation, Mayurbhanj, Baripada in W.C. Case No. 5 of 1999 dated 24th April, 2000. 2. The main ground of challenge, amongst Ors., is that the injury sustained by the claimant being amputation of this right leg from above the ankle joint, the same is a scheduled injury as specified in Schedule -I of the Workmen's Compensation Act, but the Commissioner acted illegally in assessing the compensation on the basis of 100% toss of earning capacity. According to Mr. Mohanty, learned Counsel for the Appellant, the loss should have been assessed only at 60% and not at 100%. It is forcefully submitted that this being an error apparent on the face of the record, the impugned judgment should be set aside. It is also submitted by the learned Counsel that the claimant did not examine the treating physician and the Commissioner accepted the prescriptions and other documents which were not properly proved. 3. At the other hand, Mr. K.K. Rath appearing for the Claimant-Respondent No. 1, vehemently submitted that the Commissioner has taken into consideration all the facts and circumstances of the case and after seeing the injured has rightly arrived at the conclusion that his physical disability was 100%. It was further submitted that the claimant was a permanent resident of Bihar and he underwent treatment at Bihar and the medical certificate and other documents produced before the Commissioner were of Bihar; and being a poor man the claimant was not able to get the treating physician, who was at Bihar, examined in the case. It was further submitted that the claimant was personally present before the Commissioner who had the occasion to examine him and after seeing the condition the Commissioner rightly arrived at the conclusion that the claimant suffered from 100% disability. The entire proceeding before the Commissioner being summary in nature, strict proof may not be necessary. 4. In para-10 of his judgment, while deciding issue No. 6 the Commissioner relied upon the certificate issued by the Sadar Hospital, Motihari in the State of Bihar and observed that according to the concerned doctor the physical disability of the claimant was 75%. The entire proceeding before the Commissioner being summary in nature, strict proof may not be necessary. 4. In para-10 of his judgment, while deciding issue No. 6 the Commissioner relied upon the certificate issued by the Sadar Hospital, Motihari in the State of Bihar and observed that according to the concerned doctor the physical disability of the claimant was 75%. But after seeing the claimant, the Commissioner felt that due to amputation of his leg the claimant cannot work as a Helper which work he was doing prior to the accident and determined the physical disability of the claimant at 100%. On the basis of such conclusion, the Commissioner calculated the compensation applying the principle, i.e. 1080 ? 213.57 ? 100/100 and awarded a compensation of Rs. 2.30.665.00 (Rupees Two Lakhs Thirty Thousand Six Hundred Sixty five). Mr. Rath submitted that the Commissioner has not committed any irregularity or illegality and it is a fit case where the appeal filed by the Insurance Company should be dismissed in limine. 6. After hearing learned Counsel for both sides and going through the records, I find that due to the accident in fact the right leg of the claimant-Respondent No. 1 was amputed from below the knee and above the ankle joint. The Schedule prescribed for assessing the percentage of loss of earning capacity due to injuries sustained in an accident, in consonance with Sections 2(1) and 4 of the Workmen's Compensation Act, at SI. No. 19 reads: 19. Amputation below middle thigh to 3?" below knee. 60% What weighed in the mind of the Commissioner, as it appears, is the fact that the injured was working as a coolie and due to amputation of one of his legs, he cannot work as such and thus there was 100 per cent loss of his earning capacity. But then, while assessing compensation, in cases of permanent/partial disablement, what the Court has to see is whether the earning capacity of the workman has reduced in every employment, and not merely the particular employment in which he was engaged at the time of the accident resulting in the disablement. But then, while assessing compensation, in cases of permanent/partial disablement, what the Court has to see is whether the earning capacity of the workman has reduced in every employment, and not merely the particular employment in which he was engaged at the time of the accident resulting in the disablement. Hence, the claimant who was working as a coolie at the time of the accident and had lost one of his legs below the knee due to amputation, may be incapacitated from working as a coolie, but the disabled is not prevented from undertaking any ether avocation. This aspect, according to me the Commissioner lost sight or. 6. The injury sustained by the claimant being scheduled injury according to me the Commissioner has erred in not holding the percentage of loss of earning capacity of the claimant to be 60%. Therefore I have no hesitation to set aside the finding of the Commissioner holding the extent of the loss of earning capacity of the claimant to be 100% 7. The age of the claimant at the time of the accident was twenty seven years. The said fact is not disputed. It is also not disputed that he was earning Rs. 1,800.00 as his monthly wage. Section 4 of the Act provides for working out a lump sum compensation in case of permanent/total disablement resulting from injury and in Scheduled IV framed in consonance with Section 4 of the Act, if the age of an injured is twenty seven years, the factor for working out lump sum compensation amount should be "213.57". The monthly earning of the claimant being Rs. 1,800.00, taking 60% thereof, the earning capacity would come to Rs. 1,080.00. That the claimant was a workman under Respondents 2 and 3 and that he sustained the injury due to the accident in course of his employment are not disputed. Law is also well settled that the compensation stipulated in the Scheduled is minimum. Keeping in view the entire facts and circumstances of the case and in a spirit of Lok Adalat. I feel if the claimant-Respondent No. 1, who has lost one of his legs and has undergone a lot of pain and suffering, should be paid a lump sum compensation of Rs. 1.50.000.00 (One Lakh Fifty Thousand) which would be just, proper and equitable. 8. I feel if the claimant-Respondent No. 1, who has lost one of his legs and has undergone a lot of pain and suffering, should be paid a lump sum compensation of Rs. 1.50.000.00 (One Lakh Fifty Thousand) which would be just, proper and equitable. 8. Accordingly, I dispose of this Miscellaneous Appeal and set aside the impugned award of the Commissioner, and direct that the claimant-Respondent No. 1 be paid a lump sum compensation of Rs. 1,50,000.00 (One Lakh Fifty Thousand. It was submitted by Mr. A.K. Mohanty that the amount of Rs. 2,30,665.00 awarded by the Commissioner has been deposited in this Court and has been invested in Fixed Deposit. It is ordered that out of the said amount. Rs. 1,50,000.00 (One Lakh Fifty Thousand) be disbursed to the claimant-Respondent No. 1 Binod Singh on his proper identification along with proportionate interest accrued thereon, and the balance amount with proportionate interest accrued thereon be refunded to the Appellant-Insurance Company by way of Account Payee cheque. This exercise shall be complete within two months. Parties to bear their own costs.