Full Judgment
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2023. KHC:23818 MFA No.10701 of 2012 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE4H DAY OF JULY, 2023 R BEFORE THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.10701 OF2012(WC) BETWEEN: AADHAM SHEK, S/O ABDUL GAFAR SAHEB, AGED ABOUT49YEARS, MEERAN MANZIL, J.M. ROAD, BASRUR, KUNDAPURA - 576 201 …APPELLANT (BY SRI. PAVANA CHANDRA SHETTY H., ADVOCATE) AND:
1. N. P. RIYAZ S/O. N.P. KAMAL, AGED ABOUT38YEARS, MANDOVI ENCLAVE, N.H-17, AMBALPADY, UDUPI - 576 103 2. THE NEW INDIA ASSURANCE CO. LTD., KUNDAPURA BRANCH, PUSHPA BUILDING, MAIN ROAD, KUNDAPURA - 576 201 REP. BY ITS MANAGER …RESPONDENTS (BY SRI. C. SHANKAR REDDY, ADVOCATE FOR R2; NOTICE TO R1 D/W V/O DATED0411.2016) - 2 - NC:
2023. KHC:23818 MFA No.10701 of 2012 THIS MFA IS FILED U/S301) OF W. C. ACT AGAINST THE JUDGMENT
DATED2208.2012 PASSED IN WCA/CR-06/ NF/2009 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, UDUPI DISTRICT, UDUPI, ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT
The present appeal is filed by the appellant/claimant challenging the judgment and award dated 22.08.2012 passed in WCA/CR-06/NF/2009 by the Labour Officer and Commissioner for Workmen’s Compensation, Udupi District, Udupi, for seeking enhancement of compensation.
2. The factum of accident is not in dispute.
3. Heard the arguments from both sides and perused the records.
4. Learned counsel for the appellant/claimant submitted that the claimant is a driver of Heavy Transport Vehicle (HTV) by profession and had suffered fracture of - 3 - NC:
2023. KHC:23818 MFA No.10701 of 2012 D-12 (spinal cord), due to which, the claimant is not able to do the work as a driver by profession as it is not possible to the claimant to bend his body either forward or backward and he is not able to do any strenuous activities and therefore, it is amounting to 100% of loss of earning capacity, but the learned Commissioner has only taken 62% of disability. Therefore, prays for modification of the judgment and award passed by the learned Commissioner by holding 100% as functional disability causing loss of earning capacity due to disability. Therefore, prays to allow the appeal.
5. On the other hand, learned counsel for respondent No.2 - Insurance Company justified the judgment and award passed by the learned Commissioner that the doctor has stated that the claimant had suffered 62% of functional disability affecting his earning capacity and it is correctly held by the learned Commissioner. Therefore, submitted that it is not the case of taking 100% - 4 - NC:
2023. KHC:23818 MFA No.10701 of 2012 as functional disability. Therefore, prays to dismiss the appeal.
6. The appellant/claimant is a driver by profession of driving Heavy Transport Vehicle (HTV) and met with an accident while driving the loaded fish on the truck coming from Malpe, Goa and Vasgodi. The learned Commissioner has adopted the parameters by holding the monthly wage of Rs.4,000/- and age of the claimant is 55 years and accordingly, held the relevant factor considering the permanent physical disability at 62% and accordingly, awarded the compensation.
7. Upon hearing the submissions of learned counsel for the respective parties, the following point arises for consideration: “Whether, under the facts and circumstances involved in the case, due to the injuries sustained by the claimant while he was out of and in the course of employment by driving the Heavy Transport Vehicle (HTV) met - 5 - NC:
2023. KHC:23818 MFA No.10701 of 2012 with an accident and suffered fracture of D-12 (spinal cord) and thus, as per the doctor’s evidence, the claimant is not able to do the work as a driver, hence, is it amounting to 100% of loss of earning capacity due to disability?.
8. The physical disability and functional disability are two different aspects. Under the Employee’s Compensation Act, 1923, (hereinafter referred to as the ‘Act’ for short) the compensation is to be determined under the head loss of earning capacity due to disability as per Schedule I of the Act. There are scheduled injuries and in the accident, it may also lead to causing injuries, which is not scheduled in the Act. Insofar as non-scheduled injuries, compensation is to be determined as per Section 4(1)(c)(ii) of the Act. Therefore, the paramount consideration while determining compensation is from the injuries and disability sustained and what would be the loss of earning capacity is to be considered. The loss of earning capacity is to be considered on the basis of - 6 - NC:
2023. KHC:23818 MFA No.10701 of 2012 avocation/profession/job, which is being carried out by the claimant while sustaining injuries out of and in the course of employment. If the claimant is not able to do any other work including the profession he was performing at the time of accident, then it would be considered as 100% of loss of earning capacity. In this regard, this Court places reliance on the judgment of the Hon’ble Supreme Court in the case of Raj Kumar Vs. Ajay Kumar and Another1, wherein at Paragraph Nos.12, 13 and 19, it is held as under: “12. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give `ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross- examination with reference to the certificate. If the 1 (2011) 1 SCC343- 7 - NC:
2023. KHC:23818 MFA No.10701 of 2012 Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability.
13. We may now summarise the principles discussed above : (i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity. (ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability). (iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. (iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors.” “19. The evidence showed that at the time of the accident, the appellant was aged around 25 years and was eking his livelihood as a cheese vendor. He claimed that he was earning a sum of Rs.3000/- per month. The Tribunal held that as there was no acceptable evidence of income of the appellant, it should be assessed at Rs.900/- per month as the minimum wage was Rs.891 per month. It would be very difficult to expect a roadside vendor to have accounts or other documents - 8 - NC:
2023. KHC:23818 MFA No.10701 of 2012 regarding income. As the accident occurred in the year 1991, the Tribunal ought to have assumed the income as at least Rs.1500/- per month (at the rate of Rs.50/- per day) or Rs.18,000/- per annum, even in the absence of specific documentary evidence regarding income.
9. Further the Hon’ble Supreme Court in the case of Rekha Jain Vs., National Insurance Co., Ltd., and Others2 were pleased to consider that the injured has suffered 100% of functional disability as the injured was a woman working in a film and a TV actress and was aged about 24 years. The injured has suffered injury on the face and her face was disfigured. The injured is no longer able to work in film or as a TV actress and had lost her entire earning capacity as a TV actress. Therefore, the Hon’ble Supreme Court considered it as 100% of functional disability. The principle of law laid down therein is squarely applicable to the case on hand.
10. The Hon’ble Supreme Court in the case of Jakir Hussein Vs. Sabir and Others3 were pleased to hold 2 (2013) 8 SCC3893 (2015) 7 SCC252- 9 - NC:
2023. KHC:23818 MFA No.10701 of 2012 that the permanent disability and functional disability are two different aspects. Even though, there would not be 100% of permanent physical disability, but it affects the avocation of the injured to carry out the profession as he was doing before the accident. Then it would amount to 100% of functional disability. The injured being a driver met with an accident and as per the doctor’s evidence, he suffered 55% of permanent physical disability and cannot drive any motor vehicle in future. Therefore, with such disability, when the driver is not able to carry on the profession as driver, then it is amounting to functional disability and accordingly, awarded compensation by holding functional disability at 100%. Further the Hon’ble Supreme Court in the case of Mohan Soni Vs. Ram Avtar Tomar and Others4 had held that the injured being a cart-puller met with an accident and left leg was amputated below the knee. Under these circumstances, the Hon’ble Supreme Court held the functional disability at 100%. Since, the injured is not able to work as a cart- 4 (2012) 2 SCC267- 10 - NC:
2023. KHC:23818 MFA No.10701 of 2012 puller as he had suffered functional disability at 100%, accordingly, compensation has been awarded.
11. The principle of law laid down regarding permanent physical disability and functional disability is applicable in the present case also. There may not be evidence of the doctor that the injured has suffered 100% of permanent physical disability, but the functional disability is to be considered on the basis of nature of injuries sustained and the profession of the injured/claimant. In the present case, the claimant was working in a bakery and due to amputation of right leg above knee, the claimant is not able to work as he was working earlier. Therefore, he suffered 100% of functional disability affecting the earning capacity. Therefore, it is considered in the present case that the claimant has suffered 100% of permanent physical disability. Also the Hon’ble Supreme Court in the case of Pratap Narain - 11 - NC:
2023. KHC:23818 MFA No.10701 of 2012 Singh Deo Vs. Srinimvas Sabata and Another5, at paragraph Nos.4 and 5, it is held as under: “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 was only partial disablement within the meaning of Section 2(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 4½" 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(I)(l) 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:
5. AIR 1976 SC2221) - 12 - NC:
2023. KHC:23818 MFA No.10701 of 2012 "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 4½" 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.
12. The workman is a carpenter by profession and the workman had suffered amputation of hand. Therefore, it is observed that with single hand the work of carpenter cannot be performed. Hence, it was held that there is 100% of functional disability.
13. In the present case, it is not disputed that the claimant has suffered injuries and disability out of and in the course of employment. The claimant had suffered fracture of D-12 (spinal cord). It is the evidence of doctor who has given treatment to the claimant that the claimant - 13 - NC:
2023. KHC:23818 MFA No.10701 of 2012 is having difficulty in bending forward and backward and difficulty in sitting and doing strenuous activities and also the claimant is having compression of 50% with healed persistent pain, fusion indicated. Further it is the evidence of doctor that due to the above said injuries and disability, the claimant is not able to do the work of driver of Heavy Transport Vehicle (HTV) and also having difficulty to do the work of driver of any kind of motor vehicle or any other kind of strenuous activities. Therefore, when the claimant is not able to do the work as a driver in any vehicle, then it is amounting to 100% of loss of earning capacity. Just because, the claimant may do some other lighter work, that is for the livelihood and inevitably he is compelled to do, but where the job/profession/avocation is affected completely rendering the claimant in not being able to do the work as a driver, then it is amounting to 100% of loss of earning capacity, even though, the injury is categorized as non-scheduled injuries as per the Employee’s Compensation Act.-. 14 - NC:
2023. KHC:23818 MFA No.10701 of 2012 14. Schedule I is a guiding factor to assess as to what is the percentage of disability. But the accident is an accident itself. It cannot be expected that in the accident such and such type of injury can occur. Whatever may be the injury occurred due to the accident, which may not be found in Schedule I, so as to assess the percentage of loss of earning capacity, therefore, by following the principle of law laid down by the Hon’ble Supreme Court (stated supra) and in catena of decisions, loss of earning capacity is to be determined based on the factors that what the claimant was working before the accident and after the accident and also whether the claimant is able to do the said work or not and if the claimant is able to do work partially, then it is a different aspect. When the claimant is not able to do work at all what he was doing before the accident, then it is amounting to 100% of loss of earning capacity due to the said injuries and disability. In the present case, the claimant is a driver by profession driving Heavy Transport Vehicle (HGV) and he is not able to do the work as a driver due to the disability as stated by the - 15 - NC:
2023. KHC:23818 MFA No.10701 of 2012 doctor as above discussed. Even though, the doctor in the present case has stated that the claimant had suffered 62% of physical disability, which is permanent total disability, therefore, the learned Commissioner is not expected to sway away only by the opinion of the doctor, but the learned Commissioner has to apply his mind independently as to whether the claimant is able to continue his career as a driver or not as he was doing before the accident. Therefore, this is the criteria to be adopted while considering whether the disability is causing 100% of loss of earning capacity, but in the present case, for the reasons above discussed and following the principles of law laid down by the Hon’ble Supreme Court, the claimant had suffered 100% of loss of earning capacity as the claimant is not at all able to continue his work as a driver for livelihood. Therefore, the present case is considered as the claimant has suffered 100% of loss of earning capacity as per Section 4(1)(c)(ii) of the Employee’s Compensation Act.-. 16 - NC:
2023. KHC:23818 MFA No.10701 of 2012 15. The other parameters are monthly wage and age of the claimant as 55 years and relevant factor are correct and they are not disturbed. Therefore, the compensation under the head loss of earning capacity due to disability is re-assessed and quantified as follows: Rs.4,000/- x 60% x 135.56=Rs.3,25,344/- Accordingly, compensation of Rs.3,25,344/- is awarded under the head loss of earning capacity due to disability.
16. Interest at the rate of 12% pa., can be awarded from the date of accident till realization in view of the principle of law laid down by the Hon’ble Supreme Court in the case of Pratap Narain Singh Deo (stated supra).
17. The learned Commissioner has awarded compensation of Rs.2,01,713/-, but the appellant/claimant is entitled to total compensation of Rs.3,25,344/-. Hence, the appellant/claimant is entitled to total compensation of Rs.3,25,344/- as against Rs.2,01,713/- - 17 - NC:
2023. KHC:23818 MFA No.10701 of 2012 awarded by the learned Commissioner along with interest at the rate of 12% per annum from the date of accident till the date of realization.
18. Accordingly, I proceed to pass the following ORDER
i. The appeal is allowed-in-part. ii. The impugned judgment and award dated 22.08.2012 passed in WCA/CR-06/NF/2009 by the Labour Officer and Commissioner for Workmen’s Compensation, Udupi District, Udupi, is hereby modified to the extent that the appellant/claimant is entitled to total compensation of Rs.3,25,344/- along with interest at the rate of 12% per annum from the date of accident till the date of realization. iii. No order as to costs.-. 18 - NC:
2023. KHC:23818 MFA No.10701 of 2012 iv. Registry is directed to transmit the TCR along with copy of this order to the learned Commissioner forthwith. v. Draw award accordingly. Sd/- JUDGE PB List No.:
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