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2007 DIGILAW 545 (KAR)

NEW INDIA ASSURANCE CO. LTD. v. RAMA

2007-08-29

RAM MOHAN REDDY

body2007
JUDGMENT Ram Mohan Reddy, J. The Insurance Company has preferred this appeal under Section 30(1) of the Workmen’s Compensation Act, 1923 (for short, ‘the Act), aggrieved by the order/award dated 30th September, 2002 of the Commissioner for Workmen’s Compensation, Bangalore Sub-Division No.2, Bangalore, in Case No. WCIIB-21.S.S.C/CR-131/2000, insofar as it relates to the quantum of compensation. 2. The 1st respondent employed as a driver by the 2nd respondent, the owner of the motor vehicle bearing lorry Registration Certificate No. KA-02-6688 and insured by the appellant, in the course of employment, met with motor vehicle accident involving the insured vehicle on 6-10-2000 and sustained grievous injury in the nature of crush injury to the right limb from knee to the foot. The 1st respondent claimed Rs. 4,00,000/- as compensation which was adjudicated by the Commissioner under the Act. 3. The petition was not opposed by the owner of the vehicle but was opposed by the appellant-insurer. In order to prove the nature of the injury sustained and the alleged loss of earning capacity, the 1st respondent examined a doctor by name S.N. Patil, as a witness. This witness deposed that the percentage of disability was 40% to the right limb and 20% to the whole body. In addition, the witness stated that the 1st respondent cannot discharge the duties of a driver. The Commissioner, having regard to the material on record and appreciating the evidence both oral and documentary, recorded a factual finding that the 1st respondent at the time of the accident was aged 30 years, drawing monthly wage of Rs. 3,500/- and suffered 100% loss of earning capacity and accordingly, awarded compensation of Rs. 2,49,276/- with interest at the rate of 12% per annum from 6-11-2000 upto the date payment, by order dated 30-9-2002. 4. The appeal memorandum discloses that the challenge to the order is in relation to the justification of the Commissioner in recording a finding that the injured-1st respondent had suffered 100% loss of earning capacity contrary to the medical expert’s opinion and the finding over disability contrary to Section 2(1) of the Act. 5. 4. The appeal memorandum discloses that the challenge to the order is in relation to the justification of the Commissioner in recording a finding that the injured-1st respondent had suffered 100% loss of earning capacity contrary to the medical expert’s opinion and the finding over disability contrary to Section 2(1) of the Act. 5. Learned Counsel for the appellant submits that the order/award in question is one without, determination of the loss of earning capacity with reference to “all the work” which the 1st respondent was capable of performing at the time of accident resulting in the disablement, though there was no acceptable evidence placed by the 1st respondent over total loss of earning capacity. It is further contended that even assuming that disability of the use of the right limb of the 1st respondent if equated to an amputation of the limb below the knew, the loss of earning capacity as indicated in item No. 20 of Part II of Schedule I to the Act is 50% which aspect of the matter having not been considered, the Commissioner was not justified in determining 1st respondent had suffered a total loss of earning capacity. It is next contended that the doctor who was examined by the 1st respondent having opined that the disability to the limb was only 40% and 20% to the whole body, in the absence of independent and acceptable evidence to establish that the injury sustained by the 1st respondent resulted in permanent total disablement, the Commissioner was not justified in assessing 100% loss of earning capacity. It is lastly contended that though the appellant has not raised a plea in the memorandum of appeal that it was not liable to pay interest at the rate of 12% per annum from 6-11-2000, learned Counsel submits that in view of law declared by the Apex Court in the case of National Insurance Company Limited v Mubasir Ahmed and Another, the Commissioner was not justified in awarding interest at the rate of 12% per annum from 6-11-2000. 6. Learned Counsel for respondent 1 seeks to support the order impugned as being well-merited, fully justified and not calling for interference. . 7. Facts not in dispute are: that the 1st respondent-workman was earning Rs. 6. Learned Counsel for respondent 1 seeks to support the order impugned as being well-merited, fully justified and not calling for interference. . 7. Facts not in dispute are: that the 1st respondent-workman was earning Rs. 3,500/- per month, aged 30 years i.e., as on 6-10-2000 the date of accident; sustained crush injuries of the right limb from knee to the foot; and that for the purpose of determining compensation under the Act the wage was taken Rs. 2,000/- per month. What necessarily arises for decision making is whether the Commissioner was justified in determining 100% loss of earning capacity entitling the 1st respondent to Compensation of Rs. 2,49,276/- with interest at 12% per annum from 6-11-2000. 8. In Shivalinga Shivanagowda Patil and Others v Erappa Basappa havihala and Others, a Full Bench of this Court in the light of conflicting decisions of co-ordinate Benches of this Court as to whether disability does not amount to total disablement when the workman was capable of performing and executing the work other than the driving, recorded its opinion at paragraph 25 of the judgment which reads thus: “25. In view of the discussions and for the reasons mentioned above, we answer the reference accordingly. We answer the points referred number-wise, which are as under: (i) The Commissioner under the. Workmen’s Compensation Act cannot assess the loss of earning capacity without the assistance of the assessment made by qualified medical practitioner regarding loss of assessment or in disregard of the assessment of a qualified medical practitioner. But, if the assessment made by the qualified medical practitioner is disputed by anyone of the parties, the Commissioner is competent to sit in judgment over the assessment of the qualified medical practitioner and pronounce upon the same if material by way of assessment of another qualified medical practitioner is placed and he is accepting the said assessment having regard to the nature and extent of the disablement and the loss of earning capacity, he can disregard the earlier assessment of the medical practitioner disputed by the parties. (ii) In the event of neither the workman nor his employer producing any medical evidence to show the extent of loss of earning capacity resulting from the injury of the former, Section 11 of the Act empowers the Commissioner to get the injured workman examined at any time by a qualified medical practitioner and to assess the nature and extent of disablement as well as the loss of earning capacity on the basis of such assessment to be furnished by the qualified medical practitioner. (iii) Determination of the loss of earning capacity has to be with reference to “all the work” which the workman was capable of performing at the time of the accident resulting in such disablement and not with reference to the work which the workman was performing at the time of the accident. However, this is subject to the condition that in case the workman establishes by acceptable evidence that after the injury not only he is not able to do the work which he was performing before the accident but he is not able to do any other work, the loss of earning capacity could be assessed on the basis of such evidence. (iv) In the case of an injury specified in Part II of Schedule I which falls under Section 4(1)(c)(i) read with Part II, Schedule I, the Commissioner has the power to determine the amount of compensation awardable under Section 4(1)(b) of the Act provided the injured by adducing independent and acceptable evidence establishes the case that the injury which he has sustained results in a permanent total disablement and not merely permanent partial disablement. Accordingly, the questions are answered”. 9. The 1st respondent having suffered a crush injury to the right limb from knee to the foot, which if assumed to tantamount to one of amputation below the knee, as submitted by the learned Counsel for the appellant, the loss of earning capacity is 50% as set out in item No. 20 of Part II of Schedule I to the Act. The 1st respondent in order to establish total loss of earning capacity, was required to lead independent evidence constituting substantial legal evidence of the fact, that on account of the grievous injury suffered in the accident he was prevented from doing any work and demonstrate the said fact in order to enable the Commissioner to determine permanent total disablement as well as total loss of earning capacity notwithstanding what is mentioned in Part II, Schedule I to the Act. 10. A bare perusal of the deposition of the 1st respondent (self interested testimony) discloses that after the accident he is unable to work as a driver. No reference is made to “all the work” that the 1st respondent was capable of performing at the time of accident resulting in partial permanent disability. The medical evidence also is not in the direction of establishing the extent of loss of earning capacity on account of the injury except to state that the 1st respondent cannot discharge the duties of a driver. In this regard, medical evidence should touch upon the job function of the 1st respondent with due regard to those functions on account of the injury; as to its effects on the present job and potential earning capacity in any other or alternate areas of employment. In the absence of this crucial evidence, there is neither clear nor reliable evidence, on the basis to determine total loss of earning capacity. In my opinion, ‘the 1st respondent failed to place acceptable evidence to establish that the injury sustained resulted in permanent total disablement as also 100% loss of earning capacity. Learned Counsel for the 1st respondent is unable to point out to any other material on record in support of the aforesaid facts. 11. An examination of the order impugned does not disclose that the Commissioner was guided by relevant material constituting substantial legal evidence of the fact of permanent total disablement so as to determine the compensation taking into consideration 100% loss of earning capacity. In the absence of relevant material it cannot but be said that the Commissioner merely on surmises and assumptions recorded an inferential finding that the 1st respondent had suffered total loss of earning capacity. 12. In the absence of relevant material it cannot but be said that the Commissioner merely on surmises and assumptions recorded an inferential finding that the 1st respondent had suffered total loss of earning capacity. 12. Keeping in mind the fact that the medical evidence discloses that the 1st respondent suffered a crush injury to which his right limb from knee to foot resulting in 40% disability to the said limb it is reasonable to accept the submission of the learned Counsel for the appellant that for the purpose of compensation, the injury be taken as amputation of the limb below the knee and proportional loss of earning capacity at 50% in accordance with item No. 20 of Part II of Schedule I of the Act. Taking into consideration Rs. 2,000/- as the wage for the purpose of compensation under the Act and applying the formula i.e., 2000 x 60% x 50% x 207.98 the compensation is calculated at Rs. 1,24,788/-. Thus the 1st respondent is entitled to Rs. 1,24,788/- as compensation under the Act, instead of Rs. 2,49,276/- as determined by the Commissioner in the order impugned. 13. The Apex Court in Mubasir’s case, observed thus: “The compensation becomes due on the basis of adjudication of the claim made. The adjudication under Section 4 in some cases involves the asses sment of loss of earning capacity by a qualified medical practitioner. Unless adjudication is done, question of compensation becoming due does riot arise. The position becomes clearer on a reading of sub-section (2) of Section 4-A. It provides that provisional pay ment to the extent of admitted liability has to be made when employer does not accept the liability for compensation to the extent claimed. The crucial expression is “falls due”. Significantly, Legislature has not used the expression “from the date of accident”. Unless there is an adjudic ation, the question of an amountfalling due does not arise”. 14. It is no doubt true that the appeal memorandum does not disclose that the appellant raised a plea that it was not liable to pay interest at the rate of 12% per annum as ordered. Nevertheless the question of payment of interest is a pure question of law and not that of fact. 14. It is no doubt true that the appeal memorandum does not disclose that the appellant raised a plea that it was not liable to pay interest at the rate of 12% per annum as ordered. Nevertheless the question of payment of interest is a pure question of law and not that of fact. Having regard to the authoritative legal pronouncement of the Apex Court in Mubasir’s case, it is needless to state that the Commissioner was not justified in awarding interest at the rate of 12% from 6-11-2000 i.e., 30 days after the date of accident. The 1st respondent would be entitled to interest at 12% after expiry of 30 days from 30-9-2002 the date of the order/award i.e., 30-10-2002, upto the date of payment. 15. In the result, the appeal is allowed in part. The order/award dated 30th September, 2002 of the Commissioner for Workmen’s Compensation, Bangalore Sub-Division No.- 2, Bangalore, in Case No. WCI/B-21.S.S.C/CR-131/2000, stands modified entitling the 1st respondent to compensation of Rs. 1,24,788/- with interest at 12% from 30-10-2002 upto the date of payment. 16. It is noticed from the order sheet that Rs. 1,24,788/- out of Rs. 2,49,576/- in deposit in this appeal was transferred to the Commissioner for Workmen’s Compensation, Bangalore Sub-Division No. 2, Bangalore, by cheque dated 9-1-2004 and the balance kept in fixed deposit. Registry is directed to calculate interest at the rate of 12% per annum ?n ,Rs. 1,24,788/- from 30-10-2002 onwards upto the date of deposit i.e., 1-1-2003 and proportionate interest accrued on the fixed doposit upto 9-1-2004 if any and transmit the said sum to the Commissioner for Workmen’s Compensation Bangalore Sub-Division No.2, Bangalore, for effecting payment to the 1st respondent, while the balance is directed to be refunded to the appellant.