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2019 DIGILAW 1027 (GAU)

New India Assurance Co. Ltd. v. Basat Ali

2019-09-11

ACHINTYA MALLA BUJOR BARUA

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JUDGMENT : Achintya Malla Bujor Barua, J. Heard Mr. R. Goswami, learned counsel for the appellant. Also heard Mr. A. Alam, learned counsel for the respondent workman. 2. The respondent workman was a driver having a valid driving licence and was engaged by the owner of the vehicle No.AS01/AC-7974 as a driver. While discharging his duty as a driver, the vehicle met with an accident on 05.05.2011 while it was travelling from Nangal to Jogigopa. According to the workman claimant the accident took place when the vehicle he was driving was parked on the side of National Highway-31 in front of a garage and when he climbed down from his vehicle another vehicle AS-18/C-1413 which was coming from the other side in a rash and negligent manner had knocked him down and as a result, his left leg got crushed. Although he was taken to the hospital for treatment but inspite of it, his left leg could not be saved and it was amputed from around the knee. In the circumstance, a claim was made that the respondent workman suffered permanent physical disability which had rendered him unfit as a driver and further causing loss of 100% earning capacity. 3. Before the Commissioner, the respondent workman led evidence that he was injured while in employment as a driver of the vehicle No. AS 01/AC-7974 and at the time of the accident, he was earning a salary of Rs.6,000/- per month apart from other allowances. The owner of the vehicle also entered appearance and submitted a written statement wherein, the employment was admitted and the salary paid was stated. Appropriate medical evidence was also led that as a result of the accident, the left leg of respondent workman had to be amputed from around the knee and this had resulted in a permanent disability and loss of earning and that the injured will not be able to drive a truck any more. 4. Based upon the materials on record, the Commissioner, Workmen's Compensation, Abhayapuri by its judgment dated 27.01.2012 awarded a compensation of Rs.5,20,584/- along with interest and penalty thereon. 5. Being aggrieved, the present appeal is preferred by the Insurance Company against the said judgment dated 27.01.2012. 4. Based upon the materials on record, the Commissioner, Workmen's Compensation, Abhayapuri by its judgment dated 27.01.2012 awarded a compensation of Rs.5,20,584/- along with interest and penalty thereon. 5. Being aggrieved, the present appeal is preferred by the Insurance Company against the said judgment dated 27.01.2012. In the appeal, the Insurance Company takes a stand that the amputation of the leg of the injured workman having taken place around the knee portion, his case would be covered by Entry-21 of Schedule-1 to the Workmen's Compensation Act, 1923. Entry-21 of Schedule-1 having provided for the loss of earning capacity to be calculated in the given particular manner, i.e. 50% the Commissioner, was incorrect in accepting the loss of earning capacity to be 100%. 6. Before the Commissioner, the respondent workman by relying upon the pronouncement of the Supreme Court in S. Suresh -vs- Oriental Insurance Company Limited and Another, (2010) 13 SCC 777 wherein it was held that if a driver of a vehicle becomes disqualified to get a driving licence after suffering from amputation of his leg, the loss of earning capacity would be 100% as a driver and the pronouncement of the Gujarat High Court in Khatuben Musabhai (Minor) -vs- Shriram Oil Mills & Others and the Orissa High Court in Kunci Minz -vs- R.C. Nayak & another wherein, a conclusion was arrived that as the records did not reveal that the workman was employed by his employer in any alternative employment, therefore, his loss of earning capacity would be 100% and not 50%, contended that in the instant case the loss of earning capacity would have to be taken as 100% and not 50%. 7. In the appeal, Mr. R. Goswami, learned counsel for the appellant Insurance Company relies upon the pronouncement of the Supreme Court in Palraj -vs- Divisional Controller, North East Karnataka Road Transport Corporation, (2010) 10 SCC 347 , wherein in paragraph 14 a view was taken that the injuries suffered by the injured workman may result in 100% disablement as far as driving a vehicle is concerned, but the same would not be a measure of the loss of his earning capacity. Accordingly, it is the contention that the loss of earning capacity would have to be assessed on the basis of materials on record which may indicate the loss of earning capacity of the person concerned from all such work which he was capable of undertaking. 8. Mr. A. Alam, learned counsel for the respondent workman on the other hand relies upon the pronouncement of the Supreme Court in K. Janardhan -vs- United India Insurance Company Limited and Another, (2008) 8 SCC 518 , wherein also the workman was a driver of a tanker lorry aged about 25 years and due to amputation of his right leg he was held to have suffered 100% disability. In K. Janardhan (supra) the Commissioner in his judgment found that the claimant therein had suffered an amputation of his right leg up to the knee and had suffered a loss of 100% of his earning capacity as a driver. The High Court on an appeal by the Insurance Company by relying upon the Schedule to the Workmen Compensation Act took a view that the loss of earning capacity would be 60% inasmuch as, the doctor had given opinion that there was a 65% disability. The Supreme Court by taking into consideration the earlier pronouncement in Pratap Narain Singh Deo -vs- Srinivas Sabata and Another, (1976) 1 SCC 289 took the view that the appellants in K. Janardhan (supra) had also suffered a disability of 100% and an incapacity of earning as a driver of a tanker lorry as his right leg had been amputed from the knee. Accordingly, the conclusion arrived at by the Commissioner was restored and the interference by the High Court was set aside. We have taken note of that in its pronouncement in K. Janardhan (supra) the Supreme Court had arrived at a conclusion that the appellant therein had suffered 100% disability and an incapacity in earning as a tanker driver. 9. In Pratap Narain Singh Deo (supra), the claimant therein was a carpenter by employment and while in employment had suffered certain injuries resulting in the amputation of his left arm from the elbow. 9. In Pratap Narain Singh Deo (supra), the claimant therein was a carpenter by employment and while in employment had suffered certain injuries resulting in the amputation of his left arm from the elbow. In the aforesaid circumstance in paragraph-5 of its judgment, the Supreme Court held as follows:- "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." From the paragraph-5 of the judgment of the Supreme Court in Pratap Narain Singh Deo (supra) it is discernible that the definition of total disablement was understood to be a disablement either temporary or permanent which incapacitates a workman from all work which he was capable of performing at the time of the accident which resulted in the disablement. The Supreme Court further accepted that it was not in dispute that the injury of the workman in the said matter was of such nature so as to cause the permanent disablement to him. 10. In K. Janardhan (supra) also the provisions of the Supreme Court in paragraph-5 of Pratap Narain Singh Deo (supra) was also taken into consideration and a view was formed that by applying the ratio in Pratap Narain Singh Deo (supra) to the facts of the case, the appellant therein had also suffered 100% disability and incapacity in earning as a driver of a tanker lorry as his right leg was amputed from the knee. 11. In the instant case also it is an admitted position of the parties that the disablement of having one leg amputed was an injury which had caused a permanent disablement to the respondent workman. As regards the question as to whether the disablement had incapacitated the workman claimant from all work which he was capable of performing at the time of the accident, the Supreme Court had gone into the conclusion arrived at by the Commissioner, that the injured workman in that case, who was a carpenter by profession, was evidently rendered unfit for the work of a carpenter as a result of the loss of the left hand on the elbow. The said conclusion of the Commissioner was held by the Supreme Court to be reasonable and to be a correct finding. In the instant case, if we borrow the same analogy adopted by the Supreme Court in Pratap Narain Singh Deo (supra), the respondent workman who was a driver of a truck, upon having his left leg being amputed from around the knee portion, became incapable of further working as a truck driver. 12. By arriving at such conclusion, the Supreme Court had upheld the order of the Commissioner therein that under the circumstance, the appellant in the said matter had suffered 100% loss of his earning capacity. In the judgment of the Supreme Court in Pratap Narain Singh Deo (supra), two aspects of the matter were taken into consideration that because of the amputation the workman therein was rendered totally unfit to perform the work which he was performing and accordingly his loss of earning capacity was accepted to be 100%. 13. In the judgment of the Supreme Court in Pratap Narain Singh Deo (supra), two aspects of the matter were taken into consideration that because of the amputation the workman therein was rendered totally unfit to perform the work which he was performing and accordingly his loss of earning capacity was accepted to be 100%. 13. In the instant case also the Commissioner came to a conclusion that the workman had suffered an amputation of his leg as a result of the injury which made him unfit to further work as a driver of a truck which had resulted in 100% loss of earning capacity. Considering the similarity in the circumstances in the case before the Supreme Court which again was followed under a similar circumstance in K. Janardhan (supra), we are not inclined to interfere with the view taken by the Commissioner that there was a 100% loss of earning capacity of the respondent workman. 14. Mr. R. Goswami, learned counsel for the appellant Insurance Company submits that firstly the aspect of loss of earning capacity of the respondent workman would be covered by Entry-21 of Schedule-1 to the Workmen's Compensation Act, 1923 which provides that in case of amputation of a leg around knee portion the loss of earning capacity should be 50%. Accordingly, it is the submission that as it is statutorily provided that the loss of earning capacity is 50%, therefore, neither the Court nor the Commissioner can take any other view on the aspect. The said submission of Mr. Goswami would otherwise have been acceptable, but for a Constitution Bench decision of the Supreme Court which is to the contrary where under the law if there is a divergence of conclusion that may result from a statutory provision and that of a pronouncement by the Supreme Court, the view by the Supreme Court would prevail. 15. Further reliance was placed on the observation by the Supreme Court in Palraj (supra), wherein, it was observed that by virtue of the injury suffered by the workman the disablement as far as driving a vehicle is concerned would be 100% but that by itself may not be a measure of the loss of his earning capacity. 15. Further reliance was placed on the observation by the Supreme Court in Palraj (supra), wherein, it was observed that by virtue of the injury suffered by the workman the disablement as far as driving a vehicle is concerned would be 100% but that by itself may not be a measure of the loss of his earning capacity. But again we find that such observation in Palraj (supra) had not taken into consideration the view taken by the Constitution Bench in Pratap Narain Singh Deo (supra), which again was followed by the Supreme Court in K. Janardhan (supra). Accordingly, we are of the view that we are bound by the decision of the Constitution Bench of the Supreme Court for arriving at our conclusion. 16. In view of the above, we do not find any merit in the appeal and the same is accordingly dismissed. Interim order passed earlier stands vacated.