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2016 DIGILAW 682 (KER)

Suresh Babu v. Suresh M.

2016-08-08

P.N.RAVINDRAN, P.V.ASHA

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JUDGMENT : Asha, J. Shri John Joseph Vettikkad takes notice for the second respondent. There is no appearance for the first respondent. We heard the learned Counsel appearing for the parties on both sides and are disposing the MFA. 2. The grievance of the appellant is over the percentage of disability reckoned by the Employees Compensation Commissioner for determining the compensation to him. The appellant was a bus conductor. He sustained severe injuries during the course of his employment, on 01.10.1991, when the bus lost control and hit on a tree. As per the disability certificate, Ext.X1 issued by the Medical Board, the occupational disability of appellant was assessed as 90%. Accordingly, the Employees Compensation Commissioner awarded a sum of Rs.7,18,373/- reckoning disability at 90% alone. The contention of the appellant is that he is completely bedridden and incurred cent percent functional disability. He is unable to carry out any kind of work. Therefore, the Compensation Commissioner ought to have reckoned his disability as 100% for assessing the compensation. 3. From the records available we find that the appellant, who sustained very severe injuries, though his disability is assessed at 90% only, became totally incapacitated to carry out any work which would show that the functional disability incurred by him is 100%. Our conclusion is supported by the judgment of the Apex Court in Pratap Narain Singh Deo v. Srinivas Sabata [ (1976) 1 SCC 289 ] where the case of a carpenter who suffered amputation of his left arm below elbow during the course of employment came up for consideration. The Commissioner for Workmen Compensation, found that he suffered total disablement and had been disabled from all work which he was capable of performing at the time of the accident. Hence he awarded compensation assessing the disability as 100%. The High Court of Orissa dismissed the appeal. The employer approached the apex court contending that the disablement was only partial. Referring to the definition of total disablement under Section 2(1)(1) of Workmen's Compensation Act, 1923, according to which it 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", apex court held that the assessment made by the Commissioner was correct and dismissed the appeal. 4. 4. This position was reiterated in Janardhan v. United India Insurance Co. Ltd. [2008(2) KLT 995(SC)], while considering the case of a Tanker driver who lost his right leg below knee and in S. Suresh v. Oriental Insurance Co. Ltd. and Anr. [ (2010) 13 SCC 777 ] while the apex court was considering the case of a driver who suffered amputation of right leg below knee, finding that the 24 year old injured would never be able to do the work of a driver. Even after certain amendments, the definition of total disablement continues to be practically the same, under the Employees Compensation Act, 1923, under Section 2.(1)(1), which read as follows:- "2(1)(1) "total disablement" means such disablement, whether of a temporary or permanent nature, as incapacitates a employee for all work which he was capable of performing at the time of the accident resulting in such disablement provided that permanent total disablement shall be deemed to result from every injury specified in Part I of Schedule I or from any combination of injuries specified in Part II thereof where the aggregate percentage of the loss of earning capacity, as specified in the said Part II against those injuries, amounts to one hundred per cent or more." A Division Bench of this court in New India Assurance Co. Ltd. v. Santhosh [ 2011 (2) KLT 747 ] held that the driver who lost his vision in one eye has to be treated as having total disablement under the Workmen's Compensation Act. 5. Under the above circumstances, we are of the view that the Employees Compensation Commissioner erred in not assessing the disability of the appellant who is totally bedridden, as one coming under total disablement within Section 2(1)(1) of the Act and in not awarding compensation reckoning the percentage of disability as 100%. Accordingly the lump sum compensation awarded by the Commissioner will stand modified and enhanced as follows:- 8000X60/100X166.29X100/100 =7,98,192/-. Thus there will be an enhancement in the total compensation by a sum of Rs.79,819/- (Rupees Seventy nine thousand eight hundred and nineteen only) [7,98,192 - 7,18,373]. The enhanced compensation will carry interest @ 12% per annum from 19.10.2011 as awarded by the Employees Compensation Commissioner. The Insurance Company shall deposit the amount before the Employees Compensation Court, within a period of three months from the date of receipt of a copy of this judgment. The enhanced compensation will carry interest @ 12% per annum from 19.10.2011 as awarded by the Employees Compensation Commissioner. The Insurance Company shall deposit the amount before the Employees Compensation Court, within a period of three months from the date of receipt of a copy of this judgment. Appeal is allowed accordingly. There shall be no order as to cost.