| SooperKanoon Citation | sooperkanoon.com/503360 |
| Subject | Labour and Industrial |
| Court | Madhya Pradesh High Court |
| Decided On | Feb-19-2008 |
| Judge | Arun Mishra and ;S.A. Naqvi, JJ. |
| Reported in | 2008(2)MPHT405 |
| Appellant | Rajneesh Kumar Dwivedi |
| Respondent | K.P. Enterprises and anr. |
| Disposition | Appeal allowed |
| Cases Referred | In New India Assurance Co. Ltd. v. Bharat Yadav and Anr. |
1. The appeal has been preferred under Section 30 of Workmen's Compensation Act, 1923 (hereinafter referred to as 'the Act') aggrieved by order dated 22-8-2005 passed by Commissioner for Workmen's Compensation, Labour Court, Satna in Case No. 30/2001 WC Act Non Fatal.
2. It is not in dispute that claimant Rajneesh Kumar Dwivedi was driving Jeep (MP-19/2616), while he was taking the jeep to garage, the steering of the Jeep became free and there was failure of brakes due to that jeep turned turtle as a result thereof the claimant sustained injuries. He was referred to neurologist from Satna to Jabalpur. Salary of the claimant was Rs. 2,000 per month, beside Rs. 15 used to be paid to him byway of allowance, he has become permanently mentally disabled due to the injuries. The owner in the reply contended that jeep was not owned by M/s. K.P. Enterprises or Kamal Transport, claimant was not employed as driver by them, thus, they were not liable.
3. The insurer in the reply denied the liability to make payment of compensation inter alia on the ground that claimant himself was negligent, he was not holding valid and effective driving licence as on the date of accident, claimant was not receiving the salary as claimed. The Tribunal has found that 100% mental disability has been incurred due to the injuries sustained in the accident, salary of the claimant was Rs. 2,000 per month, in addition he used to receive a sum of Rs. 15 per day by way of allowance, respondent No. 1 has been found to be the owner of the vehicle, claim petition has been dismissed on the ground that mental disability was not covered under Section 4(1)(c)(ii) read with Schedule I of the Act, thus, compensation could not be awarded to the claimant within the purview of the Act as no physical disability has been incurred and it was permissible to award compensation in case of physical disability, the application preferred by the claimant/appellant has been dismissed, consequently the appeal has been preferred.
4. The following substantial questions of law have been framed by this Court:
(i) Whether due to the fact that mental disability has not been included in Schedule I read with Section 4(1)(c)(ii) of the Workmen's Compensation Act, 1923 was right in dismissing the application filed by the workman/appellant ?
(ii) Whether the Tribunal was justified in dismissing the claim petition in spite of holding that the 100% mental disability has been incurred by the claimant due to injuries sustained by him in the course of employment ?
5. It is not in dispute that 100% mental disability has been incurred by the claimant due to injuries sustained in the accident. Question arises whether the disability incurred being not covered under Schedule I of the Act, it is permissible to award compensation under the Act. Definition of 'partial disablement' and 'total disablement' is given under Section 2(1)(g) and 2(1)(i) of the Act, same are quoted below:
2. Definitions.- (1) In this Act unless there is anything repugnant in the subject or context:
(g) 'partial disablement' means, where the disablement is of a temporary nature, such disablement as reduces the earning capacity of a workman in any employment in which he was engaged at the time of the accident resulting in the disablement, and, where the disablement is of a permanent nature, such disablement as reduces his earning capacity in every employment which he was capable of undertaking at that time:
Provided that every injury specified (in Part II of Schedule I) shall be deemed to result in permanent partial disablement.
(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: 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.
6. Relevant portion of Sub-section (1) of Section 4 is quoted below:
4. Amount of compensation.- (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:
(b) Where permanent total an amount equal to (sixty per disablement results from cent) of the monthly wages of the injury the injured workmanmultiplied by the relevant factor;oran amount of (ninety thousand rupees) whichever is more:Explanation I:- For the purposes of Clause (a) and Clause (b), 'relevant factor', in relation to a workman means the factor specified in the second column of Schedule IV as against the entry in the first column of that Schedule specifying the number of years which are the same as the completed years of the age of the workman on his last birthday immediately preceding the date on which the compensation fell due;
Explanation II:- Where the monthly wages of a workman exceed (four thousand rupees), his monthly wages for the purposes of Clause (a) and Clause (b) shall be deemed to be (four thousand rupees) only;
(c) Where permanent (i) in the case of an injury in Part II partial disablement of Schedule I, such percentage of the results from the injury compensation which would havebeen payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury, and(ii) in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury;Explanation I:- Where more injuries than one are caused by the same accident, the amount of compensation payable under this head shall be aggregated but not so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries;
Explanation II:- In assessing the loss of earning capacity for the purposes of Sub-section (ii), the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in relation to different injuries specified in Schedule I.
Clause (b) of Sub-section (1) of Section 4 of the Act provides that where permanent, total disablement results from the injury, an amount equal to sixty per cent of the monthly wages of the injured workman multiplied by the relevant factor or an amount of ninety thousand rupees whichever is more has to be awarded. Sub-clause (i) of Clause (c) of Sub-section (1) of Section 4 of the Act provides that in case of permanent partial disablement resulting from the injury in case of injuries specified in Part II of Schedule I, such percentage of the compensation which would have been payable in the case of permanent total disablement has to be awarded. In case of injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury is the criteria for determination of the compensation. The definition of 'total disablement' makes it clear that it is 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 accident resulting in such disablement. Proviso makes it clear that 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 said Part II against those injuries, amounts to one hundred per cent or more. 'Partial disablement' means, where the disablement is of a temporary nature, such disablement as reduces the earning capacity of a workman in any employment in which he was engaged at the time of the accident resulting in the disablement. Proviso makes it clear that every injury specified on Part II of Schedule I shall be deemed to result in permanent partial disablement. A bare reading of Explanation II of Section 4(1)(c) makes it clear that in case injury is not specified in Schedule I, still the compensation has to be paid, in the case of permanent total disablement as is proportionate to the loss of earning capacity. For that reliance can be placed on the evidence of qualified medical petitioner.
7. The Apex Court in National Insurance Co. Ltd. v. Mubasir Ahmed and Anr. : (2007)ILLJ1035SC , in the context of cases relating to the injuries which were not specified in Schedule I and such cases are covered by Section 4(1)(c)(ii) has held thus:
7. These cases related to injuries which were not specified in Schedule I and such cases are covered by Section 4(1)(c)(ii) Explanation. In terms of Explanation II the qualified medical practitioner has to assess loss of earning capacity having due regard to percentage of loss of earning capacity in relation to the different injuries in Schedule I. Explanation I also provides that where there are more than one injury, the aggregate has to be taken, so that the amount which would be payable for permanent total disablement is not exceeded.
8. Loss of earning capacity is, therefore, not a substitute for percentage of the physical disablement. It is one of the factors taken into account. In the instant case the doctor who examined the claimant also noted about the functional disablement. In other words, the doctor had taken note of the relevant factors relating to loss of earning capacity. Without indicating any reason or basis the High Court held that there was 100 per cent loss of earning capacity. Since no basis was indicated in support of the conclusion, same cannot be maintained. Therefore, we set aside that part of the High Court's order and restore that of the Commissioner, in view of the facts situation. Coming to question of liability to pay interest, Section 4A(3) deals with that question. The provision has been quoted above.
8. In New India Assurance Co. Ltd. and Anr. v. Subhas, : 2004(5)KarLJ7 , My Lord Justice R.V. Raveendran, J. (as he then was) has considered the question whether Commissioner for Workmen's Compensation has power to decide that workman has suffered permanent total or partial disablement as a result of injuries on the basis of evidence led before him, provision of Section 4(1)(c)(ii) was considered. The Court has observed that the terms 'permanent disablement' and 'temporary disablement' are not defined. Disablement in the context, refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human being. The term 'loss of earning capacity' is also not defined. It refers to the 'economic disability' as a result of physical disability. Determination of loss of earning capacity requires to be done in two stages, that is, assessment of physical disability which involves ascertainment of the injuries sustained and its impact on the functioning of the human body; and second part is assessment of loss of earning capacity. First part is the function of medical practitioner. As a result of amendment made in Section 4(1)(c)(ii) of the Act by inserting words 'as assessed by the qualified medical practitioner' after the words 'as is proportionate to the loss of earning capacity'. As a result of the amendment, qualified medical practitioner, in short, the QMP is required to assess not only the percentage of physical disability, but also assess the percentage of loss of earning capacity based on the physical disability. There are three divisions of disabilities under Section 4, that is, permanent total disablement, permanent partial disablement and temporary disablement. Temporary disablement is dealt with in Section 4(1)(d). Clause (b) of Sub-section (1) of Section 4 deals with determination of compensation in cases of permanent total disablement resulting from employment injury. What is to be determined under Section 4(1)(b) is whether the injuries suffered by the workman have in fact resulted in permanent total disablement or not. There is no need to decide the percentage of loss of earning capacity as a consequence of such permanent total disablement. It is assumed that the loss of earning capacity is 100 per cent when there is permanent total disablement. Where the injury is one which is not enumerated in Part I of Schedule I, and there is a dispute as to whether the workman has suffered permanent total disablement as a result of the injury, the Commissioner has the jurisdiction to decide such a dispute under Section 19 of the Act. Clause (b) of Section 4(1) does not contemplate any assessment by a QMP where the workman has suffered permanent total disablement. But in cases where the injuries do not fall under Schedule I to the Act if the workman claims that the injuries have resulted in permanent total disablement, the question whether the disablement is a permanent total disablement or not is basically a matter for medical assessment by a QMP. The Commissioner has however the discretion either to act on the assessment by the QMP or to refer the workman to an independent QMP for examination and assessment of disability.
9. Permanent partial disablement has been dealt with in Clause (c) of Section 4(1). It is attracted when the workman claims compensation alleging that employment injury has resulted in permanent partial disablement or when the Commissioner does not accept a claim of permanent total disablement and decides that the disablement is only partial. In the case of permanent partial disablement, the compensation depends not on the extent of permanent partial disablement, but on the loss of earning capacity resulting from such permanent partial disablement. Where the injuries resulting in the permanent partial disablement are those specified in Part II of Schedule I, then the percentage of loss of earning capacity is as specified in said Schedule. But it is open to the workman to establish by evidence a higher percentage of loss of earning capacity, than what is specified in the said Schedule. Referring to the various decisions such as New India Assurance Co. Ltd. v. Sreedharan 1995 ACT 373 (Kerala), Shivalinga Shivanagowda Patil v. Erappa Basappa Bhavihala : (2004)ILLJ1089Kant , AS. Sharma v. Union of India , following conclusions have been recorded in New India Assurance Co. Ltd. and Anr. v. Subhas (supra) in Para 37:
37. We therefore answer point No. (iii) as follows:
(a) The Commissioner's power to decide whether a workman has suffered permanent total disablement or permanent partial disablement, as a result of the injuries, on the basis of evidence let in before him, remains unaffected by amendment to Section 4(1)(c)(ii) by Act 22 of 1984 inserting the words 'as assessed by the qualified medical practitioner'.
(b) If the Commissioner holds that the workman has suffered permanent total disablement, on account of injuries other than those specified in Part I of Schedule I to the Act, he can proceed on the basis that it has resulted in 100 per cent loss of earning capacity;
(c) Where the Commissioner holds that the workman has suffered permanent partial disablement on account of non-scheduled injuries, the Commissioner should determine the 'loss of earning capacity' based on the assessment by a qualified medical practitioner. If the Commissioner is not satisfied about the correctness of the assessment made by a qualified medical practitioner, at the instance of the workman or the employer, the Commissioner may have the workman examined by an independent qualified medical practitioner and act on the assessment by such independent qualified medical practitioner.
10. In Shankarlal v. General Manager, Central Railway and Anr. 1991 JLJ 56, a Single Bench of this Court has observed that even in the case of non-scheduled injury, Court has to determine percentage of loss of earning capacity, in case workman rendered unfit for the job he was performing, disablement is total and not partial. Reliance was placed on Pratap Narain Singh Deo v. Shrinivas Sabata : (1976)ILLJ235SC , in which the Apex Court has laid down in a case of a carpenter who in the course of his employment sustained injuries, as a result of which his left arm above elbow was amputated, he became unfit and disablement was held to be total and not partial. In MPSRT Corporation v. Jabbar Khan 1985 MPWN 222, a driver whose left thigh was fractured and who received injury in head, his leg shortened by 3 inches, he was not in a position to do any work, the disability was held to be 100% not partial. In Babu Khan v. Kamal Sethi and Anr. 1988 (56) FLR 460 (MP), considering a case of driver who received a non-scheduled injury, this Court held that the incapacity to be judged in relation to the work in which the workman was employed, the workman was totally unfit to perform his work as a driver, the disablement was total and not partial. In case of Factory Manager, J.C. Mills v. Employees' State Insurance Corporation, Gwalior, 1987 JLJ 281, this Court held that even if injury is not covered by item I of Part II of Schedule I of the Act, note appended to the schedule clarifies that if there is a complete loss of use of any limb or member referred to in this Schedule, it shall be deemed to be the equivalent of the loss of that limb or member. In New India Assurance Co. Ltd. v. Surendra Kumar Sendha and Anr. 1997(III) LLJ (Supp.) 128, Orissa High Court has observed that even if injuries sustained by the applicant are not included in Part I or II in Schedule I of the Act, assessment of compensation can be made only on basis of evidence produced by applicant regarding loss of earning capacity. Full Bench of Karnataka High Court in Shivalinga Shivanagowda Patiland another v. Erappa Basappa Bhavihala (supra), has laid down that it is open to adduce acceptable evidence that after injury not only he is not able to do the work which he was performing before the accident, but he was not able to do any other work, the loss of earning capacity could be assessed on the basis of such evidence. In New India Assurance Co. Ltd. v. Bharat Yadav and Anr. : (2002)IIILLJ97Cal , a Division Bench of Calcutta High Court has observed that it is incumbent upon the Commissioner to assess actual loss of earning capacity on the basis of assessment by medical practitioner.
11. The Explanation II of Section 4(1)(c) makes it clear that in the case of injury not specified in Schedule I, still the compensation can be claimed in the case of permanent total disablement. Section 4(1)(b) makes it clear that where permanent partial disablement results from the injury, an amount equal to sixty per cent of the monthly wages of the injured workman multiplied by the relevant factor has to be awarded. In the instant case, thus, Commissioner for Workmen's Compensation has erred in dismissing the claim petition on the ground that injury was not covered under Part I or Part II of Schedule I of the Act. It is clear that claimant has suffered permanent total disablement, he has been rendered unfit to do any kind of job much less job of driver which he was doing. Thus, loss of earning capacity has to be taken as 100% as opined by Dr. V.K. Panse (C.W. 5), examined on behalf of the claimant, also in the instant case. Thus, claimant is entitled for 60% of the monthly wages multiplied by relevant factor. Wages of the claimant were 2450 per month inclusive of allowance as found by the Tribunal, 60% of the same comes to Rs. 1470 per month, to be multiplied by relevant factor of 207.98 applicable at the age of 30 years, thus, total compensation comes to Rs. 3,05,730.60 (Rupees Three lacs five thousand seven hundred thirty and sixty paisa only). Claimant is entitled for interest at the rate of 12% per annum on the aforesaid compensation on expiry of period of one month from the date of accident as provided in Section 4A of the Act till realization. Liability to make payment of compensation alongwith interest is held to be joint and several of the owner and insurer. Thus, Tribunal was not justified in rejecting the claims, thus, we answer the substantial questions of law in favour of appellant.
12. We place on record appreciation to the independent valuable assistance rendered by Shri Virendra Verma, Advocate.
13. Resultantly, the appeal is allowed. Compensation of Rs. 3,05,730.60 (Rupees Three lacs five thousand seven hundred thirty and sixty paisa only) is awarded to the claimant. Claimant is entitled for interest at the rate of 12% per annum on the aforesaid compensation on expiry of period of one month from the date of accident as provided in Section 4A of the Act till realization. Liability to make payment of compensation alongwith interest is held to be joint and several of the owner and insurer. No costs.