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2015 DIGILAW 557 (JK)

United India Insurance Co. Ltd. v. Suresh Kumar

2015-10-26

DHIRAJ SINGH THAKUR

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JUDGMENT : Dhiraj Singh Thakur, J. 1. The present appeal has been filed against the award dated 24.8.2014 passed by the Commissioner under the Workmen's Compensation Act whereby the appellant-Insurance Co. has been directed to pay an amount of Rs. 5,08,296/-. Material facts in the light of which the present controversy has arisen are as under: 2. Respondent No. 1 was employed by respondent No. 2 to drive a load carrier. While the respondent No. 1 was driving the said load carrier from R.S. Pura to Jammu, it collided with a tractor trolley resulting into severe injuries on the right arm of the petitioner-respondent No. 1. 3. According to the medical evidence, the right arm of the claimant-driver suffered multiple fractures due to which the petitioner remained hospitalized for more than a month. While the medical evidence on record suggested that the claimant had suffered 45% disability, the claimant produced evidence on record to suggest that on account of the accident in question, he was unable to perform any work or lift anything with his right hand and that he was totally disabled to drive a vehicle. 4. As is evident from the order passed by the Authority below, despite sufficient opportunities, no rebuttal evidence was led in the proceedings below by the Insurance Company or the owner. 5. On the basis of the evidence on record, it was held that the claimant had suffered permanent disability as the petitioner was unable to perform the work as a driver after the said accident notwithstanding the fact that the medical evidence suggested only 45% permanent disability, the Commissioner under the Workmen's Compensation Act, calculated the compensation by treating his disability as 100%. 6. The issue that arises for consideration before this court is as to whether the appellant is entitled to claim compensation for total disablement on account of the fact that he is incapable of performing his duty anymore as a driver notwithstanding the fact that the medical evidence suggests that he has only suffered partial disablement calculated at 45%. 7. Learned counsel for the claimant-respondent No. 1 has placed reliance upon Pratap Narain Singh Deo v. Srinivas Sabata and Anr., (1976) 1 SCC 289 . The cited case pertained to a Carpenter, who had suffered an amputation of his left arm from the elbow. 7. Learned counsel for the claimant-respondent No. 1 has placed reliance upon Pratap Narain Singh Deo v. Srinivas Sabata and Anr., (1976) 1 SCC 289 . The cited case pertained to a Carpenter, who had suffered an amputation of his left arm from the elbow. The Apex Court held that it amounted to 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 accident. What was observed in paragraph 5 of the said judgment is reproduced hereunder for reference: "5. The expression "total disablement" has been defined in section 2(i)(1) 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 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." 8. A new case cannot therefore be allowed to be set up on facts which have not been admitted or established." 8. Learned counsel for the appellant-Insurance Co., has placed reliance upon a full bench judgment of Kerala High Court in 2003 ACJ 1363, Vanajakshan v. Joseph to bring home the point that the compensation has to be assessed on the basis of the percentage of loss of earning capacity by keeping in view the loss of capacity of a workman for all work, which he was capable of performing and not for the work, which he was actually doing. What was stated by the Full Bench in case (supra) in paragraphs 14 and 15 is reproduced herein below: "14. The above provisions clearly show that the compensation has to be determined with reference to the loss in earning capacity and not the ability to perform the duties of the job, which was being done by the workman at the relevant time. 15. It is undoubtedly true that the Act is a piece of social legislation. It embodies beneficent provisions. Normally the provisions have to be liberally considered. However, while considering the provisions the plain language cannot be overlooked. The words have to be given their plain and clear meaning. In our view the Legislature has made its intention absolutely clear in unambiguous words. The compensation has to be assessed on the basis of the percentage of the loss of earning capacity. While determining the loss of earning capacity the authority has to keep in view the loss of capacity of a workman "for all work which he was capable of performing" and not for the work which he was actually doing." 9. The case before the Kerala High Court pertained to the injuries suffered by a driver to the extent of 45%, which resulted in the loss of vision in the left eye. The authority under the Act having considered the matter rejected the claim of the claimant that he had suffered 100% disability. 10. The case before the Kerala High Court pertained to the injuries suffered by a driver to the extent of 45%, which resulted in the loss of vision in the left eye. The authority under the Act having considered the matter rejected the claim of the claimant that he had suffered 100% disability. 10. The full bench of the Kerala High Court upheld the award of the authority by holding that no evidence was led by the appellant therein to show that he was not capable of doing any work other than that of a driver and that there was nothing before the court on the basis of which it could have drawn an assumption that there was 100% loss of earning capacity. 11. In paragraph 18 of the judgment of the Full Bench of the Kerala High Court, a view has been taken that the judgment in Pratap Narain Singh Deo's case was not an authority for the proposition that the compensation had to be determined only with reference to the work that was being done by the workman and not the loss in earning capacity. 12. However, a subsequent decision of the Apex Court in K. Janardhan v. United Indian Insurance Co. Ltd. & Anr., AIR 2008 SC 2384 treated the decision in Pratap Narain Singh Deo's case as a ratio for the proposition framed by this court hereinabove. In paragraph 4 of the judgment (supra), the Apex Court held as under: "4. 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." 13. The aforementioned view of the Apex Court has further been reiterated in (2015) 7 SCC 252 , Jakir Hussein v. Sabir & Ors. wherein in paragraph 15 and 16, the Court has 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. wherein in paragraph 15 and 16, the Court has 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 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 doctor's 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. 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%. 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/-." 14. For the reasons mentioned hereinabove, this appeal is dismissed. Appellant-Insurance company is directed to deposit the entire awarded amount with the Registry along with interest @ 9% p.a. from the date of the accident within a period of one month so that the benefit of the award could be given to the claimant-respondent No. 1 at the earliest. Connected applications also stands disposed of accordingly.