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Gauhati High Court · body

2012 DIGILAW 202 (GAU)

Oriental Insurance Co. Ltd. v. Biswajit Deb

2012-02-14

T.NANDAKUMAR SINGH

body2012
JUDGMENT T. Nanda Kumar Singh, J. 1. The two questions, fall for consideration in this appeal under Section 30 of the Workmen's Compensation Act, against the judgment and award dated 22.03.2002 passed by the learned Commissioner, Workmen's Compensation, West Tripura, Agartala in T.S.(W.C) 18 of 1999 are : i) Whether the interest on the compensation payable by the employer (Insured) to the workman under the Workmen's Compensation Act, 1923 could be saddled on the Insurance Company (Insurer) or not? ii) In the case where for the injuries not specified in the Schedule I of the Workmen's Compensation Act, 1923 the qualified medical practitioners assessed only the percentage of disablement and not assessed the percentage of loss of earning capacity; whether the percentage of disablement is to be taken as the percentage of loss of earning capacity or not? Heard Mr. P. Gautam, learned counsel for the appellant and Mr. S.M. Chakraborty, learned senior counsel for the respondents. 2. The fact in gist, sufficient for deciding the questions involved in this appeal is noted : The claimant was appointed as assistant of the truck bearing registration No.TRL-2379 owned by the respondent No.2, Smt Indrani Dutta. The appellant, Oriental Insurance Company Limited is the insurer of the offending vehicle (TRL-2379). On 07.03.1998 the offending vehicle was carrying loaded gas cylinders from Bishalgarh towards Shillong and due to rash and negligent driving of the offending vehicle by the driver, the offending vehicle was overturned near Paikhan Bazar, near Gumra Masjid, and as a result the claimant fell under the chassis of the offending vehicle which pressed his entire body, particularly the left leg and remained in that condition for about 5-6 hours. The claimant was taken to Silchar Medical College and admitted as indoor patient from 07.03.1998 to 24.03.1998. After the claimant went back to his home at Ambassa, Dhallai District, but he suffered from severe pain in his left leg. The claimant was taken to the G.B.Hospital, Agartala and admitted as indoor patient from 24.10.1998 to 05.11.1998. On 21.11.1998 the claimant was treated at the Silchar Medical College and again he was admitted from 21.11.1998 to 28.12.1998. As advised by the Doctors the claimant had a major operation. 3. The claimant was taken to the G.B.Hospital, Agartala and admitted as indoor patient from 24.10.1998 to 05.11.1998. On 21.11.1998 the claimant was treated at the Silchar Medical College and again he was admitted from 21.11.1998 to 28.12.1998. As advised by the Doctors the claimant had a major operation. 3. Because of permanent disablement of his left leg the claimant is unable to work as assistant (handyman) of the truck or of the vehicle; and over and above, the claimant could not walk without crutch. Qualified Medical Practitioners, who attended the claimant, issued permanent disablement certificate of 40%. Types of injuries suffered by the claimant are not specified in Schedule-I to the Workmen's Compensation Act, 1923. The claimant filed T.S.(W/C) No. 18 of 1999 for compensation under the Workmen's Compensation Act, 1923 against the present appellant and owner of the offending vehicle i.e. respondent No.2. 4. The learned Commissioner, Workmen's Compensation, after finding that the claimant had suffered 60% loss of earning capacity, awarded total compensation of Rs. 1,57,298/- (Rupees one lakh fifty seven thousand two hundred ninety eight) along with interest at the rate of 12% per annum w.e.f. 07.03.1998 and the appellant (insurer) of the offending vehicle has to pay the said compensation within a period of three months from the date, failing which interest rate shall be 15% per annum. 5. Under Section 167 of the MV Act, 1988, the claimants have to exercise their options for claiming compensation either under MV Act, 1998 or under the Workmen's Compensation Act, but not under both. The compensation under the Workmen's Compensation Act, 1923 may be without prejudice to the provisions of Chapter-X of the MV Act 1988. Once the option was exercised and award was passed under the Workmen's Compensation Act, 1923, it is not open to the claimant to seek remedy under the MV Act. Chapter-X of the MV Act deals with the liability without fault in certain cases and it consist of Sections 140 to 144. Chapter-XI and XII of the MV Act, 1998 will not be applicable to claim under Chapter-II of the Workmen's Compensation Act, 1923. There are no corresponding provision of Sections 145, 146 and 147 of the MV Act, 1988 in the Workmen's Compensation Act, 1923. 6. The ingredients for maintaining a proceeding under the MV Act, 1988 and Workmen's Compensation Act, 1023 are different. There are no corresponding provision of Sections 145, 146 and 147 of the MV Act, 1988 in the Workmen's Compensation Act, 1923. 6. The ingredients for maintaining a proceeding under the MV Act, 1988 and Workmen's Compensation Act, 1023 are different. The purpose, for which a contract of interest is entered into, may be different, whereas under the MV Act, 1988 a contract of assurance would be mandatory; for the purpose of the applicability of Workmen's Compensation Act, 1923, it will be optional. Even contracting out is permissible as under the Workmen's Compensation Act, 1923, the liability of the insurer is limited to the claimant of the Workmen's Compensation Act. The contract of insurance by the owner of the vehicle for necessary insurance against the third party risk is mandatory under the MV Act 1988. The mandatory liabilities of the insurer are also mentioned in Section 147 of the MV Act, 1988. 7. The Apex Court in Gorttumukkala Appala Narasimha Raju & Ors. Vs. National Insurance Company Limited & Anr. (2007) 13 SCC 446 held (para 25 and 26 of the SCC) as tinder : 25. The ingredients for maintaining a proceeding under the 1988 Act and the 1923 Act are different. The purpose for which a contract of insurance is entered into may be different, whereas under the 1988 Act, it will bear repetition to state, a contract of insurance would be mandatory; for the purpose of applicability of the 1923 Act, it will be optional and as indicated hereinbefore, in Harshadbhai Amrubhai Modjiya : (2006) 5 SCC 192 even contracting out is permissible, as under the 1923 Act, the liability of the insurer is limited to the claim of the workman. The liability under Section 147(2)(b) of the 1988 Act, on the other hand, extends to third party. 26. Our attention has been drawn to some decisions of the High Courts which have taken different views in regard to the liability of the insurer to be joined as a party in a proceeding under the 1923 Act. It is not necessary for us to (sic look) into the correctness or otherwise of the said decisions, as in our opinion, there does not exist any bar in the 1923 Act in this behalf. It is not necessary for us to (sic look) into the correctness or otherwise of the said decisions, as in our opinion, there does not exist any bar in the 1923 Act in this behalf. Section 9 of the 1923 Act specifically provides that any question in regard to the liability of a person who is required to indemnify the employer must be determined in the proceeding under the said Act and not by way of a separate suit. Thus, a question of this nature should be gone into the proceeding under the 1923 Act. 8. The Apex Court in Oriental Insurance Company Limited Vs. Premlata Shukla & Ors.: (2007) 13 SCC 476 held that Insurance is mandatory under Section 147(2) of the MV Act, 1988 and hence the insurer would be liable to reimburse the insured to the extent of damages payable by the owner to the claim subject to limitation of his liability as laid down in the Act or the contract of assurance. Para-9 and 10 of the SCC in Premlata Shukla & Ors.'s case (supra) read as follows : 9. Where an accident occurs owing to rash and negligent driving by the driver of the vehicle, resulting in sufferance of injury or death by any third party, the driver would be liable to pay compensation therefor. Owner of the vehicle in terms of the Act also becomes liable under the 1988 Act. In the event vehicle is insured, which in the case of a third party, having regard to sub-section (2) of Section 147 of the Act, is mandatory in character, the insurance company would statutorily be enjoined to indemnify the owner. 10. The insurer, however, would be liable to reimburse the insured to the extent of the damages payable by the owner to the claimants subject of course to the limit of its liability as laid down in the Act or the contract of insurance. Proof of rashness and negligence on the part of the driver of the vehicle, is therefore, sine qua non for maintaining an application under Section 166 of the Act. 9. As stated above, under the Workmen's Compensation, 1923, insurance is not mandatory in the manner as provided under Section 147(2) of the MV Act. Proof of rashness and negligence on the part of the driver of the vehicle, is therefore, sine qua non for maintaining an application under Section 166 of the Act. 9. As stated above, under the Workmen's Compensation, 1923, insurance is not mandatory in the manner as provided under Section 147(2) of the MV Act. Accordingly, no award can be passed against the insurer in proceeding under the' provisions of Workmen's Compensation Act, 1923 unless there is contract of insurance between the insurer (insurance company) and the insured (owner of the vehicle). 10. As the insurer is not statutorily liable to pay compensation under the Workmen's Compensation Act, 1923, as between the employer and insurer, right and obligation should depend upon the term of insurance contract; neither in the Act i.e. Workmen's Compensation Act nor in any other, there is provision which stand in the way of an Insurance Company and Insured entered into the contract confining the application of the insurance company to indemnify to a particular head or to a particular amount when it relates to a claim for compensation to a third party arising under the Workmen's Compensation Act. The liability of the Insurer to the Insured in a claim under the Workmen's Compensation Act is confined only to the terms and conditions of the contract of insurance, in the absence of a condition in the contract of assurance between the Insurer and the Insured that the Insurer shall indemnify the interest on the compensation payable by the Insured, the Insurer cannot be saddled with the interest. 11. The Apex Court in New India Assurance Co. Ltd Vs. Barshadbhai Amrutbhai Modhiya & Anr.: (2006) 5 SCC 192 held (para 13,14,15,19 and 24 of the SCC) as follows : 13. Section 12 of the Act provides for the mode and manner of payment of compensation by a principal employer and/or his contractor. Section 17 of the Act nullifies contracting out in the following terms : 17. Contract out.- Any contract or agreement whether made before or after the commencement of this Act, whereby a workman relinquishes any right of compensation from the employer for personal injury arising out of or in the course of the employment, shall be null and void insofar as it purports to remove or reduce the liability of any person to pay compensation under this Act." 14. By reason of the provisions of the Act, an employer is not statutorily liable to enter into a contract of insurance. Where, however, a contract of insurance is entered into by and between the employer and the insurer, the insurer shall be liable to indemnify the employer. The insurer, however, unlike under the provisions of the Motor Vehicles Act does not have a statutory liability. Section 17 of the Act does not provide for any restriction in the matter of contracting out by the employer vis-a-vis the insurer. 15. The terms of a contract of insurance would depend upon the volition of the parties. A contract of insurance is governed by the provisions of the Insurance Act. In terms of the provisions of the Insurance Act, an insured is bound to pay premium which is to be calculated in the manner provided for therein. With a view to minimize his liability, an employer can contract out so as to make the insurer not liable as regards indemnifying him in relation to certain matters which do not strictly arise out of the mandatory provisions of any statute. Contracting out as regards payment of interest by an employer, therefore, is not prohibited in law. 19. As indicated hereinbefore, a contract of insurance is governed by the provisions of the Insurance Act. Unless the said contract is governed by the provisions of a statute, the parties are free to enter into a contract as for their own volition. The Act does not contain a provision like Sect ion 147 of the Motor Vehicles Act. Where a statute does not provide for a compulsory insurance or the extent thereof, it will bear repetition to state that the parties are free to choose their own terms of contract. In that view of the matter, contracting out, so far as reimbursement of amount of interest is concerned, in our opinion, is not prohibited by a statute. 24. Section 17 of the Workmen's Compensation Act voids only a contract or agreement whereby a workman relinquishes any right of compensation from the employer for personal injury arising out of or in the course of the employment and insofar as it purports to remove or reduce the liability of any person to pay compensation under the Act. 24. Section 17 of the Workmen's Compensation Act voids only a contract or agreement whereby a workman relinquishes any right of compensation from the employer for personal injury arising out of or in the course of the employment and insofar as it purports to remove or reduce the liability of any person to pay compensation under the Act. As my learned Brother has noticed, in the Workmen's Compensation Act, there are no provisions corresponding to those in the Motor Vehicles Act, insisting on the insurer covering the entire liability arising out of a motor accident. It is not brought to our notice that there is any other law enacted which stands in the way of an insurance company and the insured entering into a contract confining the obligation of the insurance company to indemnify to a particular head or to a particular amount when it relates to a claim for compensation to a third party arising under the Workmen's Compensation Act. In this situation, the obligation of the insurance company clearly stands limited and the relevant proviso providing for exclusion of liability for interest or penalty has to be given effect to. Unlike the scheme of the Motor Vehicles Act the Workmen's Compensation Act does not confer a right on the claimant for compensation under that Act to claim the payment of compensation in its entirety from the insurer himself. The entitlement of the claimant under the Workmen's Compensation Act is to claim the compensation from the employer. As between the employer and the insurer, the rights and obligations would depend upon the terms of the insurance contract. Construing the contract involved here it is clear that the insurer has specifically excluded any liability for interest or penalty under the Workmen's Compensation Act and confined its liability to indemnify the employer only against the amount of compensation ordered to be paid under the Workmen's Compensation Act. The High Court was, therefore, not correct in holding that the appellant Insurance Company, is also liable to pay the interest on the amount of compensation awarded by the Commissioner. The workman has to recover it from the employer. 12. The Apex Court in P.J. Narayan Vs. The High Court was, therefore, not correct in holding that the appellant Insurance Company, is also liable to pay the interest on the amount of compensation awarded by the Commissioner. The workman has to recover it from the employer. 12. The Apex Court in P.J. Narayan Vs. Union of India & Ors.: (2006) 5 SCC 200 held that : This writ petition is for the purpose of directing the insurance company to delete the clause in the insurance policy which provides that in case of compensation under the Workmen's Compensation Act, 1923, the insurance company will not be liable to pay interest. We see no substance in the writ petition. There is no statutory liability on the insurance company. The statutory liability under the Workmen's Compensation Act is on the employer. An insurance is a matter of contract between the insurance company and the insured. It is always open to the insurance company to refuse to insure. Similarly, they are entitled to provide by contract that they will not take on liability for interest. In the absence of any statute to that effect, insurance companies cannot be forced by courts to take on liabilities which they do not want to take on. The writ petition is dismissed. No order as to costs. 13. In the present case there is no condition in the contract of insurance that the insurer (present appellant) shall indemnify interest on the compensation payable by the insured (owner of the offending vehicle), therefore, the appellant cannot be asked to pay the interest, accordingly, question No.1 is answered and decided against the insured i.e. the owner of the offending vehicle. 14. For deciding the question No.2 formulated above, it is required to have a quick glance of Section 4(1)(c) of the Workmen's Compensation Act, 1923. For easy reference relevant portions of Section 4 of the Workmen's Compensation Act, 1923 are quoted hereunder : 4. 14. For deciding the question No.2 formulated above, it is required to have a quick glance of Section 4(1)(c) of the Workmen's Compensation Act, 1923. For easy reference relevant portions of Section 4 of the Workmen's Compensation Act, 1923 are quoted hereunder : 4. Amount of compensation.- (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely :- (a) Where death results from the injury-an amount equal to [fifty per cent] of the monthly wages of the deceased workman multiplied by the relevant factor; or an amount of [eighty thousand rupees], whichever is more; (b) Where permanent total disablement results from the injury, an amount equal to [sixty per cent] of the monthly wages of the injured workman multiplied by the relevant factor; or an amount of [ninety thousand rupees] whichever is more; Explanation 1.- For the purpose of clause (a) and clause (b) "relevant factor" in relation to a workman means the factor specified in the second column of Schedule IV against the entry in the first column of that Schedule specifying the number of years which are the same as the completed years of the age of the workman on his last birthday immediately preceding the date on which the compensation fell due. Explanation II.- Where the monthly wages of a workman exceed [four thousand rupees], his monthly wages for the purposes of clause (a) and clause (b) shall be deemed to be [four thousand rupees] only; (c) Where permanent partial disablement result from the injury (i) in the case of an injury specified in Part II of Schedule I, such percentage of the 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 inquiry 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. Explanation I.- Where more injuries than one are caused by the same accident, the amount of compensation payable under this head shall be aggregate but not so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries. Explanation I.- Where more injuries than one are caused by the same accident, the amount of compensation payable under this head shall be aggregate but not so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries. Explanation II- In assessing the loss of earning capacity for the purpose of sub-clause (ii), 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. 15. On bare perusal of Section 4(1)(c)(ii) of the Workmen's Compensation Act, it is clear that in the case of injuries not specified in the schedule, percentage of compensation payable in the case of disablement is as proportionate to the loss of earning capacity (as assessed by qualified medical practitioners) permanently caused by the injury. The medical practitioners, therefore, have to assess the percentage of loss of earning capacity which will be proportionate to the percentage of disablement permanently caused by the injuries. The word "proportionate" mentioned in Section 4(1)(c)(ii) plays a very significant role. It appears that percentage of permanent disablement cannot be equated with the loss of earning capacity in all cases inasmuch as Section 4(1)(c)(ii) only states that the percentage of disablement is as proportionate to the percentage of loss of earning capacity. 16. In the instant case, it is the case of the appellant, Insurance Company that as the Claimant is suffered from 40% disablement under the permanent disablement certificate issued by the doctor, the loss of earning capacity of the Claimant should also be 40%. But the Apex Court in National Insurance Co. Ltd. Vs. Mubasir Ahmed & Anr.: (2007) 2 SCC 349 held that 'for the injuries not specified in the schedule loss of earning capacity is not substitute for percentage of physical disablement. It is one of the factors for deciding loss of earning capacity'. Para-7, 8 and 9 of the SCC in Mubasir Ahmed & Anr's case (supra) read as follows; 7. These cases related to injuries which were not specified in Schedule I and as such cases are covered by Section 4(1)(c)(ii) Explanation. It is one of the factors for deciding loss of earning capacity'. Para-7, 8 and 9 of the SCC in Mubasir Ahmed & Anr's case (supra) read as follows; 7. These cases related to injuries which were not specified in Schedule I and as such cases are covered by Section 4(1)(c)(ii) Explanation. In terms of Explanation II the qualified medical practitioner has to assess loss of earning capacity having due regard to percentage of loss of earning capacity in relation to the different injuries in Schedule I. Explanation I also provides that where there are more than one injuries, the aggregate has to be taken, so that the amount which would be payable for permanent total disablement is not exceeded. 8. Loss of earning capacity is therefore, not a substitute for percentage of the physical disablement. It is one of the factors taken into account. In the instant case the doctor who examined the claimant also noted about the functional disablement. In other words, the doctor had taken note of the relevant factors relating to loss of earning capacity. Without indicating any reason or basis the High Court held that there was 100% loss of earning capacity. Since no basis was indicated in support of the conclusion, same cannot be maintained. Therefore, we set aside that part of the High Court's order and restore that of the Commissioner, in view of the fact situation. Coming to the question of liability to pay interest. Section 4-A(3) deals with that question. The provision has been quoted above. 9. Interest is payable under Section 4-A(3) if there is default in paying the compensation due under this Act within one month from the date it fell due. The question of liability under Section 4-A was dealt with by this Court in Maghar Singh Vs. Jaswant Singh: (1998) 9 SCC 134 . By amending Act 30 of 1995, Section 4-A of the Act was amended, inter alia, fixing the minimum rate of interest to be simple interest @ 12%. In the instant case, the accident took place after the amendment and, therefore, the rate of 12% as fixed by the High Court cannot be faulted. But the period as fixed by it is wrong. The starting point is on completion of one month from the date on which it fell due. Obviously it cannot be the date of accident. In the instant case, the accident took place after the amendment and, therefore, the rate of 12% as fixed by the High Court cannot be faulted. But the period as fixed by it is wrong. The starting point is on completion of one month from the date on which it fell due. Obviously it cannot be the date of accident. Since no indication is there as to when it becomes due, it has to be taken to be the date of adjudication of the claim. This appears to be so because Section 4-A(1) prescribes that compensation under Section 4 shall be paid as soon as it falls due. The compensation becomes due on the basis of adjudication of the claim made. The adjudication under Section 4 in some cases involves the assessment of loss of earning capacity by a qualified medical practitioner. Unless adjudication is done, question of compensation becoming due does not arise. The position becomes clearer on a reading of subsection (2) of Section 4-A. It provides that provisional payment 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 adjudication, the question of an amount falling due does not arise. 17. The Apex Court in Palraj Vs. Divisional Controller, North East Karnataka Road Transport Corporation: (2010) 10 SCC 347 held that 'for the injury not specified in Schedule, compensation is to be assessed as a percentage of compensation payable in case of permanent total disablement as is proportionate to loss of earning capacity caused by the injury'. 50% permanent disablement may be 100% loss of earning capacity in a given case inasmuch as the loss of leg may be 40% permanent disablement and may be 100% loss of earning capacity. Para 12, 13, 15 and 16 of the SCC in Palraj's case (supra) read as follows : 12. While computing compensation for disabilities being suffered by a workman in the case of his employment, it is the functional disability resulting in loss of earning capacity which is the criteria which is followed in assessing compensation. Para 12, 13, 15 and 16 of the SCC in Palraj's case (supra) read as follows : 12. While computing compensation for disabilities being suffered by a workman in the case of his employment, it is the functional disability resulting in loss of earning capacity which is the criteria which is followed in assessing compensation. The Workmen's Compensation Act, 1923, hereinafter referred to as "the 1923 Act", has its own formula in computing compensation on account of injuries suffered during employment which is reproduced in Schedule I to the said Act. In Part II of the said Schedule the loss of earning capacity in terms of percentage has been directly related to the loss of any of the limbs and parts thereof, both of the upper limbs as also the lower limbs. Loss of earning capacity is commensurate to the injuries suffered and the loss of earning capacity as a result thereof. 13. In the instant case, it is no doubt true that the appellant has lost his capacity to function as a driver, but with the help of external aids his mobility has, to some extent, been restored and he is able to perform work which is suitable to his physical condition after the accident. 15. Section 4 of the 1923 Act which had been referred to by Mr. Basava Prabhu S.Patil, learned Senior Counsel for the appellant, provides for the amount of compensation payable to a workman in different contingencies. Section 4(1)(c)(ii) provides as follows : 4. 15. Section 4 of the 1923 Act which had been referred to by Mr. Basava Prabhu S.Patil, learned Senior Counsel for the appellant, provides for the amount of compensation payable to a workman in different contingencies. Section 4(1)(c)(ii) provides as follows : 4. Amount of compensation.- (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely (a)-(b) * * * (c) Where permanent partial disablement result from the injury - (i) in the case of an injury specified in Part II of Schedule I, such percentage of the 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 inquiry 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; Explanation I.- Where more injuries than one are caused by the same accident, the amount of compensation payable under this head shall be aggregate but not so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries. Explanation II.- In assessing the loss of earning capacity for the purpose of sub-clause (ii), 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. 16. The aforesaid provision would indicate that where a workman suffers injury which is not specified in Schedule I to the Act, compensation is to be assessed on such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity, permanently caused by the injury as assessed by a qualified medical practitioner. Since in the instant case, the nature of injury suffered by the appellant is not specified in Schedule I the compensation has necessarily to be assessed on the basis of the loss of earning capacity caused by the injury which could amount to 100% disablement in a given case. Since in the instant case, the nature of injury suffered by the appellant is not specified in Schedule I the compensation has necessarily to be assessed on the basis of the loss of earning capacity caused by the injury which could amount to 100% disablement in a given case. In the instant case, however, although the appellant has lost the use of his legs for the purpose of driving a vehicle, which could be said to be total disablement so far as driving of a vehicle is concerned, he is in a position to earn a living other than by functioning as a driver, which, in fact, he is currently doing, having been posted as a peon by the respondent. 18. The Apex Court (four Judges) in Pratap Narain Singh Deo Vs. Shrinivas Sabata & Anr: AIR 1976 SC 222 held that even though amputation of left hand of a carpenter will be total disablement, and therefore, judged him to have lost 100% of his earning capacity. Para-2, 3, 4 and 5 of the AIR in Pratap Narain Singh Deo's case (supra) read as follows : 2. The Commissioner held in his order dated May 6, 1969 that the injury had resulted in the amputation of the left arm of the respondent above the elbow. He held further that the respondent was a carpenter by profession and "by loss of his 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." He therefore adjudged him to have lost "100 percent of his earning capacity." On that basis, he calculated the amount of compensation at Rs.9,800 and ordered the payment of penalty to the extent of 50 per cent, together with interest at 6 per cent, per annum, making a total of Rs. 15,092. 3. The appellant felt aggrieved and filed a writ petition in the High Court of Orissa, but it was dismissed summarily on October 10, 1969. He has therefore come up in appeal to this Court by special leave. 4. It has not been disputed before us that the injury in question was caused to the respondent by an accident which arose out of and in the course of his employment with the appellant. He has therefore come up in appeal to this Court by special leave. 4. It has not been disputed before us that the injury in question was caused to the respondent by an accident which arose out of and in the course of his employment with the appellant. It is also not in dispute that the injury resulted in amputation of his left arm at the elbow. It has however been argued that the injury did not result in permanent total disablement of the respondent, and that the Commissioner committed a gross error of law in taking that view as there as only partial disablement within the meaning of Section 1(1)(g)of the Act which should have been deemed to have resulted in permanent partial disablement of the nature referred to in Item 3 of Part II of Schedule I of the Act. This argument has been advanced on the ground that the amputation was from 8" from tip of acromion and less than 4 1/2" below tip of olecranon. As will appear, there is no force in this argument. 5. The expression "total disablement" has been defined in Section 2(1)(1) of the Act as follows : (1) "total disablement" means such disablement, whether of a temporary or permanent nature, as incapacitates 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. 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 41/2" 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. 19. The ratio laid down in Pratap Narain Singh Deo's case (supra) is followed by the Apex Court in K. Janardhan Vs. United India Insurance Company Limited & Anr.: (2008) 8 SCC 518 . Para-4 and 5 of the SCC in K. Janardhan's case (supra) read as follows : 4. An appeal was thereafter taken to the High Court by the Insurance Company, respondent. The High Court accepted the plea raised in appeal that as per the Schedule to the Workmen's Compensation Act, the loss of a leg on amputation amounted to a 60% reduction in the earning capacity and as the doctor had opined to a 65% disability, this figure was to be accepted and accordingly reduced the compensation as already mentioned above. It is in this circumstance, that the aggrieved claimant has come up to this Court. 5. The learned counsel for the appellant has raised only one argument during the course of the hearing. He has submitted that the appellant claimant being a tanker driver, the loss of his right leg ipso facto meant a total disablement as understood in terms of Section 2(1)(1) of the Workmen's Compensation Act and as such the appellant was entitled to have his compensation computed on that basis. In support of this plea, the learned counsel has placed reliance on Pratap Narain Singh Deo Vs. Srinivas Sabata: (1976) 1 SCC 289 . The cited case pertained to a carpenter who had suffered an amputation of his left arm from the elbow and this Court held that this amounted to a total disability as the injury was of such a nature that the claimant had been disabled from all work which he was capable of performing at the time of the accident. The cited case pertained to a carpenter who had suffered an amputation of his left arm from the elbow and this Court held that this amounted to a total disability as the injury was of such a nature that the claimant had been disabled from all work which he was capable of performing at the time of the accident. It was observed as under: (SCC p.291, para 5) 20. In the instant case, it is not the case of the parties that the claimant is latter employed by the owner of the offending vehicle or anybody in the capacity other than assistant or handyman of the truck; therefore, question of alternative appointment of the claimant does not arise in this case. It is now well settled law that compensation adhered under the Workmen's Compensation Act or under the MV Act is a just compensation; for deciding the just compensation, some hypothetical view should also be taken into consideration. 21. In the present case for the injuries not specified in the Schedule for which the medical certificate issued by the qualified medical practitioners is silent for the percentage of loss of earning capacity of the claimant due to physical injuries though medical certificate shows the percentage of disablement, the Commissioner, for the good reasons, determine the percentage of loss of earning capacity. This Court is of considered view that the Commissioner of Workmen's Compensation for the injuries not specified in the Schedule I to Workmen's Compensation Act, 1923 can determine for good reasons, the percentage of loss of earning capacity proportionate to the percentage of disablement in case the disablement certificate issued by the qualified medical practitioner is, silent for the percentage of loss of earning capacity. 22. In the given case, as stated above, the claimant is a workman (handyman or/assistant) of the offending vehicle who had suffered 40% permanent disablement because of non functional of left leg, for the reasons given by the learned Commissioner, cannot function or cannot work as handyman; and as a result there is 60% loss of earning capacity. This Court is not able to persuade itself to interfere with the reasons given by the learned Commissioner for coming to the finding that the claimant had lost 60% earning capacity. Accordingly, the question No.2 is answered against the appellant. This Court is not able to persuade itself to interfere with the reasons given by the learned Commissioner for coming to the finding that the claimant had lost 60% earning capacity. Accordingly, the question No.2 is answered against the appellant. For the foregoing reasons, the impugned judgment and award is modified to the extent that interest of the award cannot be saddled on the insurance company (appellant), the owner shall pay the interest. In the result, the appeal is allowed partly. Appeal allowed.