Gangaram vs Hari Om Electricals and Others

Sanjay K. Agrawal, J.—This is an appeal under Section 30 of the Employee''s Compensation Act, 1923 (henceforth ''the Act, 1923'') by which the award dated 13-4-2007 passed by the Commissioner for Employee''s Compensation, Labour Court, Rajnandgaon (henceforth ''the Commissioner'') in Case No. 77/W.C. Act/2006 N.F. has been challenged by the claimant. Facts, in brief, are as under:

"(2.1) Claimant Gangaram filed an application under Section 10 of the Act, 1923 stating inter alia that he was working in the employment of Hari Om Electricals and affixing a pole along with his co-workers on 14-7-2006 and during the course of employment the pole came in contact with a live wire resulting into severe injury to his both hands. He was taken to a hospital at Rajnandgaon and thereafter he was taken to Sector-9 Hospital at Bhilai and there his both hands were amputated below elbow leading to making of the application claiming compensation to the extent of Rs. 3,07,648/- along with interest @ 10% and penalty.

(2.2) The Commissioner, by the impugned award, held that the disablement suffered by the claimant is 60% and further held that the claimant was earning Rs. 93/- per day and assessed his monthly income as Rs. 2,418/-. The Commissioner, looking to the age of the claimant as 28 years, adopted relevant factor of 211.79 and multiplied therewith 60% of the monthly income of the claimant. The product comes to [(60% of Rs. 2,418/- =) Rs. 1451/- x 211.79 =] Rs. 3,07,307/-. Since the permanent disablement was assessed to the extent of 60%, the Commissioner awarded 60% of Rs. 3,07,307/-, i.e., Rs. 1,84,384/- as compensation to the claimant payable by respondent No. 2 The Oriental Insurance Company Limited. 20% of the compensation, i.e., Rs. 36,877/- was also awarded in favour of the claimant as penalty payable by employer respondent No. 1 Hari Om Electricals. Interest @ 6% on the amount of the compensation of Rs. 1,84,384/- was also awarded payable by employer respondent No. 1 Hari Om Electricals with effect from the date of filing the claim application till realisation of the full compensation."

Shri Jitendra Gupta, learned counsel appearing for the appellant/claimant would submit that the appellant''s both hands have been amputated below elbow. Loss of earning capacity would be 100% as the appellant has been rendered unfit to perform the job of a labour.

Smt. Chitra Shrivastava an Shri Ratan Pusty, learned counsel appearing for respondent No. 2/insurance company would support the impugned award submitting that the percentage of loss of earning capacity as recorded by the Commissioner on the basis of permanent disability suffered by the claimant is absolutely justified.

I have heard and considered the rival submissions and have perused the record of the Commissioner.

The Medical Certificate for the physically handicapped relating to the appellant has been filed and proved as Ex. P-12. The relevant portion thereof is extracted below:

"We the Members of the Govt. (D.M.B.) D.H. RJN. District Medical Board of Physically Handicapped persons, do hereby Certify that we have carefully examined Shri Gangaram Patel S/o Firatooram Patel aged 28/m Years, resident of Deokatta on 8-2-2007. He is suffering from Post traumatic amputee Both Forearm (Below Elbow) His disabilities is 60% (Sixty) percent, As per the definition given vide Government of India Ministry of Social Welfare Gazette Notification No. 4-1/83-HW-III, dated 8-8-1986."

A perusal of above quotation would show that both the hands of the appellant/claimant have been amputated below elbow to save his life and the Medical Board has certified disability to the extent of 60% in accordance with the Gazette Notification No. 4-1/83-HW-III dated 8-8-1986 issued by the Government of India, Ministry of Social Welfare.

This appeal was admitted for final hearing on 18-6-2007 on the following substantial question of law:

"In the admitted premises that both the hands of the appellant-workman were amputated below the elbow whether the Commissioner for Workmen Compensation Act, was justified in assessing the compensation by taking disability as 60% instead of 100% as per schedule 1 of the Workmen, 1923?"

The Commissioner, by paragraph 9 of the impugned award, has simply recorded a finding based on Ex. P-12 that permanent disability of the claimant is held as 60% and thereby omitted to record percentage of loss of earning capacity in order to determine the compensation payable to the claimant. During the course of trial, the claimant himself has been examined as AW-1. He has clearly stated that on account of amputation of his both hands, he has become incapable of performing any work including that of a labour.

Dr. Rajesh Saddani, a Member of the Medical Board has clearly stated that on account of amputation of both the hands of the claimant, the claimant became incapable of performing the work of a labour. The insurance company and the employer has not brought any evidence on record to hold that the claimant is otherwise fit and able to perform any other job except that of a labour. Even otherwise, a person who is a labour by profession having suffered amputation of his both hands, he is rather not be able to perform any other job on account of amputation of his both hands. The claimant has physically and functionally got disabled. Therefore, the loss of earning capacity of the claimant, in considered opinion of this Court, would be 100%.

In Pratap Narain Singh Deo Vs. Srinivas Sabata and Another, , the Supreme Court held that a carpenter had suffered amputation of his left arm from the elbow. The Supreme Court held that this amounted to a total disability as the injury was of such a nature that the claimant had been disabled from all work which he was capable of performing at the time of the accident. It was observed as under:

"5. The expression "total disablement" has been defined in Section 2(1) of the Act as follows:

(1) "total disablement" means such disablement whether of a temporary or permanent nature, as incapacitates 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."

Relying on the aforesaid decision, the Supreme Court, in S. Suresh Vs. Oriental Insurance Co. Ltd. and Another, , in which the driver suffered amputation of leg below the knee, held that the loss of earning capacity would be 100% and the percentage which is specified in Part-II of Schedule I cannot be applied. The Supreme Court held thus:

"8. In our view, the ratio of the said judgment is squarely applicable to the facts at hand. We are of the opinion that on account of amputation of his right leg below knee, he is rendered unfit for the work of a driver, which he was performing at the time of the accident resulting in the said disablement. Therefore, he has lost 100% of his earning capacity as a lorry driver, more so, when he is disqualified from even getting a driving licence under the Motor Vehicles Act."

In Raj Kumar Vs. Ajay Kumar and Another, , the Supreme Court held as under:

"14. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of "loss of future earnings", if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not be found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity."

In view of the aforesaid, it is held that on account of the amputation of both hands of the claimant, the percentage of loss of earning capacity would be 100% and the claimant would be entitled for compensation accordingly.

The determination of percentage of loss of earning capacity of the claimant as 100% would bring me to the question as to the amount of compensation which the claimant is entitled for.

Monthly income of the claimant was Rs. 2,418/- and percentage of loss of his earning capacity has been held as 100%, therefore, the compensation payable to the claimant comes to (Rs. 418/- x 211.79 =) Rs. 5,12,108/-. The compensation of Rs. 5,12,108/- shall be payable to the claimant by respondent No. 2. The Oriental Insurance Company Limited. 20% of the compensation, i.e., (Rs. 5,12,108/- x 20% =) Rs. 1,02,422/-is also awarded in favour of the claimant as penalty payable by employer respondent No. 1 Hari Om Electricals. Simple interest @ 6% on the amount of the compensation of Rs. 5,12,108/- is also awarded in favour of the claimant payable employer respondent No. 1 Hari Om Electricals with effect from the date of filing the claim application before the Commissioner till realisation of the full compensation. The compensation of Rs. 5,12,108/-, the penalty of Rs. 1,02,422/- and the interest @ 6% on the amount of the compensation of Rs. 5,12,108/-, awarded today by this Court in favour of the claimant shall be deposited before the Commissioner within a period of three months from today. The amounts already deposited towards the compensation, penalty and interest shall be adjustable. Consequently, the appeal is allowed. The impugned award is modified to the extent indicated above. No order as to costs.