Research › Search › Judgment

Himachal Pradesh High Court · body

2015 DIGILAW 1486 (HP)

United India Insurance Company Limited v. Kulwant Singh

2015-10-12

RAJIV SHARMA

body2015
JUDGMENT : Rajiv Sharma, J. This appeal is instituted against Award/Order dated 8.4.2003 passed by learned Commissioner (SDM) under Workmens Compensation Act, Sarkaghat, District Mandi, Himachal Pradesh in Petition No. 4/98. 2. It would be apt to mention that earlier the appeal was dismissed by this Court on 22.7.2003. Appellant filed a Review Petition bearing No. 6/2005. It was allowed on 22.9.2015 and matter was re-heard. 3. "Key facts" necessary for the adjudication of the present appeal are that respondent No. 1 has filed an application for compensation under Workmen Compensation Act before the Commissioner-cum-SDM Sarkaghat on 12.10.1998. According to respondent No. 1, he was employed as a Driver by respondent No. 2. He was deputed to drive truck bearing registration No. PJQ-6640 owned by respondent No. 2. On 22.10.1996, the Truck met with an accident at 4.00 pm near Bhalwan, Tehsil Sarkaghat, District Mandi. Respondent No. 1 sustained permanent injury. He became incapacitated to drive vehicle. He was the only bread-earner of the family. Appellant as well as respondent No. 2 were served with notices. Respondent No. 2 in her reply admitted that respondent No. 1 was her employee and accident occurred during the course of employment. He was paid Rs. 5,000/- per month. Vehicle was insured with the appellant. 4. Respondent No. 1 produced medical certificate/disability certificate issued by Civil Surgeon, Amritsar showing 40% permanent disability. At the request of appellant, respondent No. 1 was reexamined by Medical Board of Zonal Hospital Mandi. The Board recommended 45% permanent disability. Certificate was also issued. Respondent No. 1 has placed on record age certificate, copy of driving licence, disability certificate, insurance policy etc. 5. Dr. Harish Behal who has medically examined respondent No. 1, was examined in the Court. It is not disputed by the parties that accident has taken place during the course of employment. Respondent No. 1 has suffered 45% permanent disability. Dr. Behal, in his cross-examination has admitted that due to injuries sustained by respondent No. 1 he was not able to do any manual work requiring physical exertion and, qua driving, it was a permanent disability. Learned Workmen Commissioner has rightly come to the conclusion that respondent No. 1 has suffered 100% loss of earning capacity due to injuries received by him on 22.10.1996. Age of respondent No. 1 was 44 years at the time of accident. His income has rightly been taken as Rs. 2,000/-. Learned Workmen Commissioner has rightly come to the conclusion that respondent No. 1 has suffered 100% loss of earning capacity due to injuries received by him on 22.10.1996. Age of respondent No. 1 was 44 years at the time of accident. His income has rightly been taken as Rs. 2,000/-. Factor of 172.50 has been correctly applied by the Commissioner below. Insurance Company was liable to pay interest strictly as per law. 6. Their Lordships of the Honble Supreme Court in Jakir Hussein v. Sabir and others, reported in (2015) 3 SCC (Crl.) 72, have held as under: "15. Further, with respect to the permanent disablement suffered by the appellant, Mr. K. Parameshwara, the learned amicus curiae, has rightly submitted that the appellant was examined by Dr. P.K. Upadhyay in order to prove his medical condition and the percentage of permanent disability. The doctor who has treated him stated that the appellant has one long injury from his arm up to the wrist. Due to this injury, the doctor has stated that the appellant had great difficulty to move his shoulder, wrist and elbow and pus was coming out of the injury even two years after the accident and the treatment was taken by him. The doctor further stated in his evidence that the appellant got delayed joined fracture in the humerus bone of his right hand with wiring and nailing and that he had suffered 55% disability and cannot drive any motor vehicle in future due to the same. He was once again operated upon during the pendency of the appeal before the High Court and he was hospitalized for 10 days. The appellant was present in person in the High Court and it was observed and noticed by the High Court that the right hand of the appellant was completely crushed and deformed. In view of the doctors evidence in this case, the Tribunal and the High Court have erroneously taken the extent of permanent disability at 30% and 55% respectively for the calculation of amount towards the loss of future earning capacity. No doubt, the doctor has assessed the permanent disability of the appellant at 55%. However, it is important to consider the relevant fact, namely, that the appellant is a driver and driving the motor vehicle is the only means of livelihood for himself as well as the members of his family. No doubt, the doctor has assessed the permanent disability of the appellant at 55%. However, it is important to consider the relevant fact, namely, that the appellant is a driver and driving the motor vehicle is the only means of livelihood for himself as well as the members of his family. Further, it is very crucial to note that the High Court has clearly observed that his right hand was completely crushed and deformed. 16. In Raj Kumar v. Ajay Kumar, this Court specifically gave the illustration of a driver who has permanent disablement of hand and stated that the loss of future earnings capacity would be virtually 100%. Therefore, clearly when it comes to loss of earning due to permanent disability, the same may be treated as 100% loss caused to the appellant since he will never be able to work as a driver again. The contention of the respondent Insurance Company that the appellant could take up any other alternative employment is no justification to avoid their vicarious liability. Hence, the loss of earning is determined by us at Rs. 54,000 per annum. Thus, by applying the appropriate multiplier as per the principles laid down by this Court in Sarla Verma v. DTC, the total loss of future earnings of the appellant will be at Rs. 54,000 x 16 = Rs 8,64,000. 7. In the instant case, respondent No. 1 has suffered fracture in his humerus bone and suffered 45% disability. Since, respondent No. 1 was employed as a driver, it will amount to 100% loss of professional ability. Learned Commissioner has rightly held the Insurance Company liable to pay interest @12% per annum, on the awarded amount. 8. Accordingly, there is no merit in the present appeal and the same is dismissed, so also the pending applications, if any.