THE NATIONAL INSURANCE CO. LTD. vs SANJAY KUMAR DASS @ SANJAY KUMAR SINGH & ANR.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 01 December 2023
Judgment pronounced on : 22 January 2024
+ FAO 172/2021 &CM APPL. 26093/2021 (stay)
THE NATIONAL INSURANCE CO. LTD. ….. Appellant
Through: Ms. Rakhi Dubey, Adv.
versus
SANJAY KUMAR DASS @ SANJAY KUMAR SINGH &
ANR. ….. Respondents
Through: Mr. R. K. Nain, Mr. Daksh
Nain and Mr. Chandan
Prajapati, Advs. for R-1.
CORAM:
HON’BLE MR. JUSTICE DHARMESH SHARMA
J U D G M E N T
1. This appeal is preferred by the appellant/insurance company
instituted under Section 30 of the Employees Compensation Act,
19231assailing the judgment/award dated 01.02.2021 passed by the
learned Commissioner, Employees Compensation2 in case No.
ECI/74/NW/18/170 dated 01.02.2021, thereby allowing the claim for
compensation of respondent no. 1/workman/injured claimant.
2. Shorn of unnecessary details, the claimant filed a claim petition
on 13.07.2018 under Section 22 of the Act stating that he was
employed as first driver on vehicle bearing registration No. PB-07-
AS-5659, which was owned by respondent No.1 (respondent No.2 in
1Act
2Commissioner
the present appeal) and it was claimed that on 14.11.2016, he was on a
business trip deployed with the said vehicle as its first driver
accompanied by a second driver from New Sabzi Mandi Azadpur,
Delhi to Siliguri via Purnia with a consignment loaded with apples
and at 8.30 a.m., and when the truck reached Islampur Bus Stand,
West Bengal, there was a traffic jam and he deboarded the vehicle, so
as to see as to how much probable time it would take for the traffic
jam to wither away and on coming back when he attempted to get on
board the truck, which was being driven at a slow speed, he slipped
and fell down and his left foot was caught underneath the tyres of the
vehicle and his left foot was terribly crushed.
3. The truck was evidently insured with the appellant/insurance
company. There was no issue that both drivers were having valid
driving licenses during the relevant time. The learned Commissioner
rendered a finding that the injuries were sustained during the course of
employment and although disability certificate provided that he had
suffered 40% permanent disability, it was assessed to be 100% earning
capacity and assuming his wages to be Rs. 4800/- per month, and
applying multiplier of 189.56 for the claimant being 30 years of age,
total compensation of Rs. 9,10,080/- was awarded payable with
interest @ 12% per annum after 30 days from the date of accident till
realization. At the same time, the financial liability to pay the
compensation was fastened upon the appellant/insurance company
arraigned as respondent No.2. Further, penalty under Section 4A (3)
(b) of Act was also assessed and apart from realization of actual
expenditure of Rs.1,61,778.98/- incurred on medical treatment of
respondent no. 1/claimant, the appellant/insurance company was also
directed to deposit Rs. 4,55,040/- within 30days as penalty.
4. The aforesaid judgment/award has been assailed in the present
appeal primarily on the ground that the learned Commissioner
overlooked the mandatory provision of Section 24 of the Act before
awarding compensation; and that the loss of earning capacity was
wrongly assessed at 100% besides the facts that there was no
requirement of having first driver on the vehicle; and that even
otherwise no evidence of the second driver was brought on the record
that the injuries were suffered in the manner as deposed about by the
respondent No.1/claimant.
5. It is relevant to take note that learned Commissioner on the
basis of the pleadings by the parties, framed the following issues for
consideration:
-i) Whether Employee-Employer relationship exists between
parties?
ii) Whether accident resulting into injury to claimant is caused out
of and during the course of employment if so what amount of
injury compensation the claimant is entitled to?
iii) Relief, if any?
iv) Whether penalty is imposable u/s 4A (3) of the Act and if so,
the quantum thereof?.
6. Suffice to state that both the issue Nos. 1 and 2 were decided in
favour of the claimant/respondent No.1, which are not assailed in the
present matter. However, since the quantum of compensation is
assailed, it would be relevant to reproduce the reasoning accorded by
the learned Commissioner on issue Nos. 3 and 4, which goes as under:
-13. On the other side Ld. Counsel for respondent no. 2
submitted oral submission that claimant failed to prove his case by
way of not filing any documentary evidence which prove employee
employer relationship, accident caused out of and in the course of
employment with respondent no 1 and accordingly relied upon his
pleadings. Further Ld. Counsel for Respondent No 2 in cross
examination of claimant had asked that the accident was occurred
due to negligence of claimant but same could not proved, hence it
prima facie proved that response No. 2 insurance company has
accepted that accident was occurred of the claimant. Further after
the accident when claim petition has been filed before this
Authority by the claimant then it was onus upon the respondent No
2 to get survey of the accident to report factual position of the case
to this Authority but same could not be done. Further the objection
of the respondent No 2 that name of the claimant is defer as alleged
in claim i.e. Sanjay Kumar Dass alias Sanjay Kumar Singh but this
objection was also not proved by the respondent no 2, hence
objection raised by respondent no 2 in this case are not
considerable. Therefore considering the pleadings of the parties
and judgment placed on record by the counsel for claimant in
absence of any evidence lead by respondent as not prefer to appear
in the proceedings to prove his case and to cross examine claimant
and his witness produced in the case, the judgements relied in this
case by the claimant are completely applicable as such the case of
the claimant is proved. Hence, issue no 1 is decided in the favour
of claimant and against the respondents.
Issue No 2 & 3- Since detailed discussion has been given
regarding accident of claimant and issue no 1, respondent did not
appear various notices hence he was proceeded ex-parte then
contents of claimant is not denied. Therefore it is proved that
accident of claimant was occurred out of and in the course of his
employment with respondent no 1 resulting thereby his left leg was
amputated and as per disability certificate bearing certificate No.
12 dated 25/02/2017 he was assessed 40 % permanent disabled in
regard of traumatic amputation of left foot, but in my view which
supported by Honble Delhi High Court titled as National
Insurance Co. Ld& Anr v/s Sh. Hari Om, claimant after amputation
of his left foot he become 100 % disable for his job as a driver
which he was performing before the accident. As such I Hold that
claimant become 100 % disabled and lost 100 % earning capacity
as a driver. In view of this claimant is entitled for compensation as
per provision of the act. Accordingly for calculation of
compensation age of claimant 38 Yrs on the basis of DOB
10/05/1978 and relevant factor 189.56 and 60 % of Rs. 8000/-(
which comes Rs 4800/-) as restricted under the act by GOI.
Accordingly, injury compensation is calculated as under:
Rs. 4800*189.56=Rs.9,10,080/-
14. In view of above calculation claimant is entitled to receive
Rs. 9,10,080/- compensation along with 12% interest after 30 days
from the accident till its realisation from Respondent No. 1, since
despite having knowledge of accident respondent did not pay
compensation to the claimant as per Section 4(A) of the Act.
Further as per section 4(2A) of the Act the employee shall be
reimbursed the actual medical expenditure incurred by him for
treatment of injuries caused during the course of employment.
According to this provision claimant is also entitled to receive
actual medical expenditure incurred on his treatment of injuries
caused during the course of employment. Accordingly, to this
provision claimant is also entitled to receive actual medical
expenditure incurred on his treatment, regarding this claimant has
submitted details of medical bill Ex. AW1/1 regarding this
claimant has submitted details of medical bill Ex. AW1/1
amounting Rs. 1,61,778.98/-(colly page 3 to 26). In view of this
Respondent No. 1 is liable to pay injury compensation amounting
Rs. 9,10,080/-along with 12% interest after 30 days from accident
till its realisation and actual expenditure Rs. 1,61,778.98/- incurred
on his treatment to claimant, since vehicle in question was insured
with Respondent no 2 on the day of accident hence respondent no 2
is liable to indemnify to claimant on behalf of respondent no1.
Issue No. 4- As per section 4A (3)(b) (issue of penalty).
Despite having knowledge of accident respondent no.1 Sh. Raj
Singh s/o Sh. Malkiat Singh AW/488, Sanjay Gandhi Transport
Nagar, Delhi-110042, did not pay injury compensation to the
claimant as per the act even after filing case before Commissioner
Compensation respondent No. 1 Neither appeared nor filed any
defence/reply in the matter despite receipt of many notices from
the Commissioner Employees Compensation. It shows that
respondent no 1 deliberately neither paid compensation to the
claimant nor attended proceedings before Commissioner as such he
is liable to pay 50 % penalty of awarded amount under section
4A(3)(b) of the Act.
15. In view of above discussion respondent no. 2, M/s National
Insurance Co. Ltd. is directed to deposit Rs. 9,10,080/-along with
12% interest after 30 days from accident till its realisation and
actual expenditure of Rs. 1,61,778.98/- incurred on treatment of
claimant, within 30 days from the date of order by way of Demand
Draft/Cheque in favour of Commissioner Employees
Compensation, failing which same shall be recovered as per
provision of the Act. Accordingly Respondent No 1 is also directed
to deposit Rs. 4,55,040/-, within 30 days from the date of order by
way of Demand Draft/cheque in favour of Commissioner
Employees Compensation, failing which same shall be recovered
as per provision of the Act..
ANALYSIS AND DECISION:
7. Having bestowed my thoughtful consideration to the
submissions made by the learned counsels for the parties at the Bar,
and on perusal of the record, firstly, it must be indicated that the
arguments in the instant matter were addressed alongwith connected
matters viz. FAO 17/2021 titled New India Assurance Co. Ltd. v.
Moharman & Anr.; FAO 21/2021 titled as New India Assurance
Co. Ltd. Vs. Pushkin Tiwari & Anr.; and, FAO 305/2022 titled
New India Assurance Co. Ltd. v. Furkan @ Mohd. Furkan &
Anr., besides FAO 161/2021 titled New India Assurance Co. Ltd. v.
Sh. Waseem & Anr., wherein the same substantial question of law
has been raised thereby challenging the impugned judgment-cum-
award passed by learned Commissioner, Employees Compensation in
awarding compensation holding 100% loss of earning capacity for the
injuries sustained in the accident. The first three of the above noted
FAOs have been decided vide a common judgment and this Court has
dealt with the entire chronology of the case-law cited at the Bar in the
common judgment in FAOs 17/2021, 21/2021 and 305/2022.
Therefore, this Court would do no further than to =cut and paste the
relevant portions of the discussion on the proposition of law in the
present matter, which go as under:
PROPOSITION OF LAW DISCUSSED IN FAOs 17/2021,
21/2021 and 305/2022 AND APPLICABLE TO THE INSTANT
APPEAL
8. At the outset, it must be stated that an appeal preferred under
Section 13 against the order of the learned Commissioner is not like a
regular first appeal in the nature of Section 96 of the CPC, and the
appellate jurisdiction of this Court is only to examine the substantial
questions of law arising in the matter3. It must be stated first that, on
the face of it, except for the issue of the functional disability of each of
the claimants having been assumed/taken/considered @ 100% loss of
earning, whichis in contradiction to the medical certificate with regard
to physical disability, there are canvassed no other issues.
3North East Karnataka Road Transport Corpn. v. Sujatha, (2019) 11 SCC 514).
PROPOSITION OF LAW:
9. Therefore, let us first examine as to what =substantial
question of law is involved. In order to decide whether, in the given
set of facts and circumstances, there is a substantial question of law, it
would first be expedient to refer to Section 4 of the Act, which
provides as follows:
4. Amount of compensation.(1) Subject to the provisions of
this Act, the amount of compensation shall be as follows,
namely:
(a) ..not relevant;
(b) where permanent
total disablement results
from the injury
an amount equal to 2[sixty per
cent.] of the monthly wages of
the injured 3[employee]
multiplied by the relevant
factor;
or
an amount of 6[one lakh and
forty thousand
rupees],whichever is more:
1[Provided that the Central Government may, by
notification in the Official Gazette, from time to time, enhance the
amount of compensation mentioned in clauses (a) and (b);]
Explanation I.For the purposes of clause (a) and clause
(b), -relevant factor., in relation to 2 [an employee] means the
factor specified in the second column of Schedule IV 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
3[employee] on his last birthday immediately preceding the date on
which the compensation fell due.
4[* * * **]
(a) ..not relevant;
(b) where permanent
total disablement results
from the injury
an amount equal to 5[sixty per
cent.] of the monthly wages of
the injured 3[employee]
multiplied by the relevant
factor;
or
an amount of 6[one lakh and
forty thousand
rupees],whichever is more:
(c) where permanent
partial disablement
results from the injury
(i) in the case of an injury
specified in Part II of Schedule
I, such percentage of the
compensation which would
have been 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-clause (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;
(d) where temporary
disablement, whether
total or partial results
from the injury
a half-monthly payment of the
sum equivalent to twenty-five
per cent. of monthly wages of
the 3[employee], to be paid in
accordance with the provisions
of sub-section (2).
5[(2A) The employee shall be reimbursed the actual
medical expenditure incurred by him for treatment of injuries
caused during the course of employment.].
10. At this juncture, it is pertinent to indicate that each of the
appeals pertains to the category vide section 4(1)(c)(ii) of the Act. It
would further be relevant to refer to Section 2(g) of the Act,
which,inter alia defines =partial disablement apart from Section 2(l)
of the Act, which defines =total disablement as under:
-2(g) -partial disablement. means, where the disablement is of a
temporary nature, such disablement as reduces the earning capacity
of a 2 [employee] 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 3 [in
Part II of Schedule I] shall be deemed to result in permanent partial
disablement;
2(l) -total disablement. means such disablement, whether of a
temporary or permanent nature, as incapacitates a2 [employee] for
all work which he was capable of performing at the time of the
accident resulting in such disablement:.
11. A careful perusal of the aforesaid provisions read with Parts-I
and II of Schedule-I vis-à-vis Section 2(g) and (l) of the Act would
show that where -permanent partial disability. is claimed, vide
Explanation II to Section 4(c) of the Act, the medical practitioner shall
have due regard to the percentages of loss of earning capacity in
relation to different injuries specified in the Schedule-I for the
purposes of assessment of loss of earning capacity. Further, whereas
Part-I specifies the injuries which would be deemed to result in
=permanent total disablement, Part-II specifies injuries which would
be deemed to result in =permanent partial disablement. The distinction
is very thin, but real to the effect that while permanent disablement is
100% disablement, permanent partial disablement is only the
disablement to the extent specified in the schedule.
12. It may be stated at the outset that the instant matter does not
pertain to amputation of any bodily limbs. Evidently, the injuries
suffered in this case by respondent no. 1/claimant are of such a nature
that are specified in Part -II to Schedule-I of the Act.Thus, there was
no mandate of determination or assessment of loss earning capacity is
to be provided by a qualified medical practitioner, as engaged in terms
of section 2(l) of the Act4.
13. At first blush, it is evident that the disability certificates
introduced in evidence during the course of inquiry before the learned
Commissioner(s) show no assessment has been made with regardingto
the loss of earning capacity of the workman concerned. The disability
certificate is issued on a cyclostyled proforma, thereby filling up the
blanks and expressing the percentage of permanent functional
4(i) “qualified medical practitioner” means any person registered 12* * * under any 13[Central Act,
Provincial Act or an Act of the Legislature of a 14[State]] providing for the maintenance of a
register of medical practitioners, or, in any area where no such last-mentioned Act is in force, any
person declared by the State Government, by notification in the Official Gazette, to be a qualified
medical practitioner for the purposes of this Act;
disability/impairment in respect of bodily limb concerned. Each
certificate describes the nature of injury and states that the disability is
not likely to improve by specifically striking off the sentence -likely
to improve. and that in each case there is no recommendation for re-
assessment of the disability in future.
14. All said and done, there is no finality attached to the decision of
the Medical Practitioner regarding the percentage of the permanent
functional disability. Such findings are neither conclusive in nature
nor the same is binding in any manner. Such disability certificates are
mere expression of an opinion by an expert and not based on any other
relevant objective parameters. In other words, these reports are not
preceded with any detailed inquiry into the nature of the work that was
being performed by the workman. Hence, this Court has no hesitation
in rejecting the plea by the learned counsels for the
appellant/Insurance Company that, in the absence of finding by a
qualified medical practitioner, there could not have been an
independent assumption on the part of the learned Commissioner as to
the loss of earning capacity.
15. The above-noted provisions of the Act have been interpreted in
umpteen number of matters by the Apex Court as well as by various
High Courts, including our High Court. In the cited case of Mohd.
Nasir (supra), the claimant/workman was working as a cleaner on a
truck, which met with an accident and he suffered permanent partial
disability in the nature of injuries to his right leg. The learned
Commissioner opined that although workman had suffered 50%
disability, the loss of his earning capacity was 100%. The cited case
was, in fact, a common decision rendered on three other SLPs. The
second case involved an injured casual laborer employed for loading
and unloading and although his physical disability was assessed at
40%, the functional loss of earning capacity was assessed to be 80%.
The third case also involved two victims who were engaged for
loading and unloading of goods, wherein physical disability was
assessed at 40% for each, but the loss of earning capacity was assessed
at 80% and 100% respectively.The fourth case was one where the
victim was a driver of the offending vehicle aged about 65 years, who
was a practicing advocate, and his permanent disability was assessed
at 50% and loss of earning capacity was assessed at 50%.
16. The Supreme Court while referring to earlier case in Mubasir
Ahmed (supra) quoted the following observations in law with
approval:
-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% 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 fact situation. Coming to the question of liability to pay
interest, Section 4-A(3) deals with that question. The provision has
been quoted above..
17. In view of the said observation, the Supreme Court in the case
of Mohd. Nasir (supra) held as follows:
-16. In determining the amount of compensation, several factors
are required to be taken into consideration having regard to the
Note. Functional disability, thus, has a direct relationship with the
loss of limb.
Mohd. Nasir was a driver. A driver of a vehicle must be
able to make use of both his feet.It was the case of the claimant
that he would not be in a position to drive the vehicle and
furthermore would not be able to do any other work. He was
incapable of taking load on his body.It, however, appears that in
his cross-examination, he categorically stated that only Chief
Medical Officer had checked him in his office. No disability
certificate had been granted. He admitted that he had not suffered
any permanent disability. He, even according to the Chief Medical
Officer who had not been examined, suffered only 15% disability.
The Tribunal has arrived at the following findings:
-On page 16 original of disability certificate, the prescription
of medicine, X-Ray report of Sarvodaya and of Mohan X-
Rays have been produced which reveals the fracture of right
leg. CMO certificate No O/M 9.2003 dated 21.3.2005 has
also been produced which is alleged to be false by Insurance
Company. I have perused them carefully which bears
signature of Deputy CMO of Disability Board, Moradabad
had shown that the applicant had appeared before them for
medical check up and whose examination was done by senior
orthopaedic surgeon Dr. R.K. Singh on the basis of
recommendation of Dr. Bansal operation was done on
2.10.2004. The applicant walks with the help of the
support and is not competent to drive heavy motor
vehicle. The said certificate was issued with recommendation
that after six months his condition is to be reviewed.
That document was filed on 29.33.2005. Insurance Company
has stated the doctor who has issued disability certificate has
not been produced in the Court. But looking into the
aftermath situation the plea of Insurance Company that the
said certificate is forged and the same has not been issued by
any MBBS doctor, carries no force..
17. The learned Tribunal had held that there has been a 15%
disability but then there was nothing to show that he suffered 100%
loss of earning capacity. The Commissioner has applied the 197-
06 as the relevant factor, his age being 35. He, therefore,
proceeded on the basis that it was a case of permanent total
disablement. However, his income was taken to be at Rs. 1,920/-
per month. There is nothing on record to show that the qualified
medical practitioner opined that there was a permanent and
complete loss of use of his right leg or that he became totally unfit
to work as a driver. In that situation, the High Court, in our
opinion, was not correct in determining the loss of income at
100%.
In Ramprasad Balmiki v. Anil Kumar Jain & Ors., IV
(2008) ACC 1(SC)=(2008) 9 SCC 492, wherein upon referring to
the evidence of the Doctor who did not say that any permanent
disability had been caused, this Court held:
-Be that as it may, the High Court, in our opinion, correctly
proceeded on the assumption that the extent of permanent
disability suffered by the appellant is only 40% and not
100%..
We, therefore, are of the opinion that the extent of disability should
have been determined at 15% and not 100%. The appeal is allowed
to the aforementioned extent..
{Bold emphasized and contrasted with sentences in italics}
18. In the cited case of Raj Kumar (supra), the victim sustained
fracture of both bones of the left leg and a fracture of the left radius
and admittedly remained under prolonged medical treatment.
Although the medical certificate stated that permanent disability had
been suffered to the extent of 45%, the Tribunal assessed the loss of
earning capacity to be 100%. It is in the said context that the following
observations of law, which have remained untampered till today, were
made and read as follows:
12. Therefore, the Tribunal has to first decide whether there is
any permanent disability and, if so, the extent of such permanent
disability. This means that the Tribunal should consider and decide
with reference to the evidence:
(i) whether the disablement is permanent or temporary;
(ii) if the disablement is permanent, whether it is
permanent total disablement or permanent partial
disablement;
(iii) if the disablement percentage is expressed with
reference to any specific limb, then the effect of
suchdisablement of the limb on the functioning of the entire
body, that is, the permanent disability suffered by the person.
If the Tribunal concludes that there is no permanent disability then
there is no question of proceeding further and determining the loss
of future earning capacity. But if the Tribunal concludes that there
is permanent disability then it will proceed to ascertain its extent.
After the Tribunal ascertains the actual extent of permanent
disability of the claimant based on the medical evidence, it has to
determine whether such permanent disability has affected or will
affect his earning capacity.
13. Ascertainment of the effect of the permanent disability on
the actual earning capacity involves three steps. The Tribunal has
to first ascertain what activities the claimant could carry on in
spite of the permanent disability and what he could not do as a
result of the permanent disability (this is also relevant for
awarding compensation under the head of loss of amenities of life).
The second step is to ascertain his avocation, profession and
nature of work before the accident, as also his age. The third
step is to find out whether (i) the claimant is totally disabled from
earning any kind of livelihood, or (ii) whether in spite of the
permanent disability, the claimant could still effectively carry on
the activities and functions, which he was earlier carrying on,
or (iii) whether he was prevented or restricted from discharging
his previous activities and functions, but could carry on some
other or lesser scale of activities and functions so that he
continues to earn or can continue to earn his livelihood.
{bold portions emphasized}
19. The principles laid down in Raj Kumar (supra) that were
summarised are as follows:
19. 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 the percentage
of loss of earning capacity is the same as the 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 to 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..
20. It is pertinent to mention here that the dictum in the aforesaid
two cases, heavily relied upon by the learned counsel for the appellant,
was rendered by two Honble Judges i.e., the Division Bench of the
Supreme Court. On the other hand, learned counsel for the
respondent/claimant referred to a decision in Pratap Narain Singh
Deo (supra), which was given by a Constitution Bench consisting of
five judges of the Supreme Court, wherein the Court decided a matter
in which the victim was working as a carpenter, met with an accident,
and sustained injuries resultingin the amputation of his left arm from
the elbow. The injury was held to be =total disablement within the
meaning of Section 2(l) of the Act. It was observed that the
amputation of the left hand above the elbow rendered the workman
=unfit for performing work as a carpenter, as carpentry work cannot
be done with one hand only and the decision to adjudge 100% loss of
earning capacity was upheld.
21. In the case of Ranjit Singh @ Rana (supra), the victim was a
driver by profession and sustained permanent disability to the extent
of 50%, while the learned Commissioner assessed the loss of earning
capacity to the extent of 100%. This Court relying on the decision in
the case of State of Gujarat v. Rajendra Khodabhai Deshdia&
Anr.5, Pratap Narain Singh Deo (supra), Rayapati Venkateswar
51991 ACJ 638
Rao v. Mantai Sambasiva Rao & Anr.6and G. Anjaneyulu v. Alla
Seshi Reddy & Anr.7,upheld the decision by the learned
Commissioner to the effect that -the operation of right leg had been
impaired that would render the workman not in a position to drive
any heavy vehicle like truck/bus and therefore, functional disability
has been correctly assessed @ 100%.
22. In the case of Hari Om (supra), the workman was employed as
a driver and sustained injuries in the nature of Compound Fracture
Shaft Femur Rt. with Communicated Intra-articular Fracture Rt. Knee
of upper and of Tibia and Fibula with large degloving injury Lt. leg
with fracture base of Rt. 1st Metatarsal with fracture of lateral nasal
bone with multiple lacerated wounds. Although the medical disability
was assessed as 30% permanent in nature, the loss of earning capacity
assessed as 100% by the learned Commissioner was upheld.
23. In Mohan Soni (supra), the victim was earning his livelihood
as a cart puller and the accident resulted in amputation of his left leg
below the knee. The Supreme Court did not approve the decision of
the Tribunal and the High Court limiting the loss of earning capacity
to 50% merely because the victim was a cart puller and the
observations referred to above in this judgment in the case of Raj
Kumar (supra)were cited with approval and the functional disability
was held to be as high as 100% but in no case less than 90%. What is
to be underlined is that it was observed by the Supreme Court that
-the estimation of functional disability and its effect on nature of work
62001 ACJ 2105
72002 ACJ 1392
being performed by the victim suffering from such disability may be
different and affect two different persons in different ways. It was
also observed that -while estimating functional disability, the Court
should refrain from considering hypothetical factors like possibility of
change of vocation or adoption of another means of livelihood.. It
was held that -scaling down of compensation could only be done when
some tangible evidence is on the record and not otherwise..
24. The decision in Mohd. Ajmer (supra) is one where the victim
was a driver.Although physical disability in his right lower limb was
medically assessed to be 30%, the functional disability was held to be
100%. This Court referred to a decision by the Supreme Court in
Mohan Soni (supra)wherein it was held that -in the context of loss of
future earning, any physical disability resulting from an incident has
to be judged with reference to the nature of work being performed by
a person suffering the disability. This is the basic premise and once
that is grasped, it clearly follows that the same injury or loss may
affect two different persons in different ways.. This Court also
referred to the decision in Bikramjit Singh (supra), wherein it was
observed as under:
-The appellant’s argument is untenable because what has to be
examined is whether the physical disability results in such a
disability that would render the injured party unable to discharge
functions of employment which he/she was doing earlier i.e. the
degree of functional disability would form the basis for assessing
compensation. The driver has 31% physical disability in the right
lower limb and that would obviously render him unable to drive a
motor vehicle or a goods carrier as the right leg is used primarily
for acceleration and applying the brake, the two most important
aspects of a motor vehicle in motion.
If there is an impairment to such a degree, then it would
compromise the safe driving of the vehicle, therefore, it could
well be determined as 100% functional disability. Hence, 31%
disability in the right leg can easily be equated as 100% disability
for a driving.
Since, there was a doubt about the extent of disability
suffered by the claimant, the Commissioner, Employees’
Compensation had referred the case for ascertainment of the
disability to the Medical Board of Aruna Asaf Ali Hospital, Delhi,
a government owned and run hospital. The said Medical Board
comprising three doctors, by a Certificate dated 13.09.2013,
Exhibit AW 1/2 has certified that the claimant’s case was of
proximal femur (right) resulting in physical disability of 31% in the
right lower limb.
Keeping this Certificate in mind, the impugned order relied
upon the judgment of this Court in National Insurance Co. v. Hari
Om, 2011 LLR-428 that loss of earning capacity of the driver was
assessed as 100% even though his physical disability was only
20%-25%. Similarly, in National Insurance Co. Ltd. v. Shri Ranjit
Singh@ Rana FAO No. 246/2007 delivered on 26.11.2009 again
considered the physical disability of 15% as 100% functional
disability. In the present case, however, the disability is 31% in the
right lower limb which obviously would compromise safe driving
of any motor vehicle. The employment of a driver suffering
from such a severe physical disability is a too remote, indeed
almost negligible. Therefore, would have to be treated as a
100% functional disability entitling the claimant to the award
which has been granted.”
(ii) Raj Kumar v. Ashok Kumar & Bros. (FAO No. 498/2016),
decided on 19.04.2017, which held that:-
-7. The appellant is present in person in view of the
directions of a learned Single Judge of this Court dated
15.12.2016. It is seen that the appellant is walking with a
stick and the left lower limb is in such a condition that
obviously appellant will be no longer be able to perform
the duty of a driver. Though, the medical certificate may
only call the disability as 23% disability, really the
disability is 100% because appellant cannot perform the
duty of a driver, and this is so held by the Supreme Court
in the case of Pratap Narain Singh Deo (supra) referred to
above.. {bold portions emphasized}
25. The aforesaid evolvement of compensatory jurisprudence over
the years settles the issue regarding the assessment of loss of earning
capacity. However, I shall lastly refer to the decision in Chanappa
Nagappa Muchalagoda (supra), wherein the workman was a driver
of heavy vehicle aged about 33 years, who suffered from serious
injuries to his right leg in the nature of an anterior cruciate ligament
and a collateral ligament tear.He was subjected to plastic surgery that
resulted in permanent disability, which was medically opined to be
37%. The Supreme Court referred with approval to the decision in Raj
Kumar (supra) and some other decisions, and affirmed the judgment
of the High Court on assessing the functional disability of the
appellant as 100%.
26. At the cost of repetition, respondent No.1/claimant suffered
40% disability, as per the medical certificate, in thenature of traumatic
amputation of left foot. There could be no iotaof doubt that the
amputation of left foot per se is a =permanent partial disability. The
testimony of respondent No.1/claimant remains uncontroverted and
unrebutted that he was employed as a driver.
27. At the cost of repetition, respondent No.1/claimant was holding
a valid driving licence. The possibility of respondent No.1/claimant
gaining employment as a driver in future is completely ruled out. The
functional disability is total, and he would not be able to secure
employment as a driver. There is no gain-saying that the Court cannot
venture into the realm of injuries getting healed or respondent
No.1/claimant getting an artificial foot or prosthetic so as to seek
employment again as a driver.
28. In view of the afore-going discussion, the present appeal is
bereft of any merits. The same is dismissed with costs of Rs.50,000/-,
which would be paid to respondent No.1/claimant within 30 days from
today for enduring this unnecessary litigation, failing which, the same
shall be payable with the interest @ 15% per annum from the day of
this judgment till realisation.
29. The pending application also stands disposed of.
DHARMESH SHARMA, J.
JANUARY 22, 2024
Sadique/ck