New India Assurance Co. Ltd. vs Somariya and Another

N.K. Mody, J.—The appeal was admitted vide order dated 29th July, 2008 on the following substantial questions of law :-

Whether the findings of the Commissioner, Workmen''s Compensation of disability to the extent of 53% while as per the Schedule of Workmen''s Compensation Act, it comes to 26% however, findings are justified ?

Whether interest awarded by the Commissioner, Workmen''s Compensation against the Insurance Company is justified ?

Being aggrieved by award dated 30th May, 2006 passed by Commissioner, Workmen''s Compensation Labour Court, Dhar in Case No. 6/WCNF No. 18/04, whereby claim petition filed by respondent No. 1 was allowed and compensation of Rs. . 1,96,429.00 was awarded with interest @ 6% p.a. present appeal has been filed.

Short facts of the case are that respondent No. 1 filed a claim petition before the Court below alleging that respondent No. 1 was in the employment of respondent No. 2 as a Welder and was earning salary of Rs. . 2,970/- per month. It was alleged that respondent No. 1 was working on the Press machine on 4/03/2004. It is alleged that since no proper security system was installed, therefore, the right hand of respondent No. 1 came into gear box of the machine resulting in an amputation of two fingers. It was alleged that adequate compensation be awarded. It was alleged that since the respondent No. 1 is insured with the appellant, therefore, appellant is also liable for payment of compensation.

Claim petition was contested by the respondent No. 2. It was denied that respondent No. 1 was the employee of respondent No. 2. It was denied that respondent No. 1 was getting Rs. . 2,970/- per month towards salary. It was alleged that the accident occurred because of negligence on the part of the respondent No. 1 for which respondent No. 2 and also appellant cannot be held liable. Appellant also filed written statement wherein the liability was denied. After framing of issues and recording of evidence, learned Court below awarded compensation as indicated above, against which present appeal has been filed.

Mr. C.P. Singh learned Counsel for the appellant argued at length and submits that the impugned order passed by the learned Court below is illegal, incorrect and deserves to be set aside. It is submitted that injuries sustained by the respondent No. 1 are scheduled injuries. It is submitted that as per Serial Nos. 27,28,31 and 32 Part II of Schedule-I of the Workmen''s Compensation Act, 1923 which relates to the injuries sustained by the respondent No. 1. It is submitted that if index and middle finger have been amputated, then too, percentage of earning capacity could be assessed at the most 26%. It is submitted that doctor, who issued certificate of permanent disability of 53%, in cross-examination has admitted that the loss of earning capacity is to the extent of 15% to 20% of the whole body.

Learned Counsel for the appellant placed reliance on a decision in the matter of Divisional Manager, New India Assurance Co. Ltd. v. Sundaran, 2010 ACJ 624; wherein workman sustained injuries leading to amputation of two fingers of left hand, doctor opined that workman suffered permanent disablement @ of 55% and the Commissioner relying upon the medical opinion allowed compensation @ 55% loss of earning capacity whereas as per serial No. 9 of Part 2 of Schedule I, such an injury can be assessed to have 20% loss of earning capacity, Andhra Pradesh High Court held that the Commissioner erred in not relying upon the certificate issued by the medical practitioner regarding percentage of loss of earning capacity when the injury is a scheduled injury. It was further held that if the employment injury falls in any of the entries in the Schedule, compensation has to be computed a per Schedule. Further reliance is placed on a decision in the matter of National Insurance Co. Ltd. Vs. Mubasir Ahmed and Another, wherein it is held that on account of permanent partial disablement, functional disability and loss of earning capacity to the extent of 80, 65 and 80 percent in three cases and the Commissioner awarded compensation accordingly the High Court was not justified in assessing 100% loss of earning capacity without indicating any reason or basis. Hence, the order of the Commissioner was restored. It is submitted that appeal be allowed and the amount of compensation as awarded by the learned Court below be reduced.

Ms. Sarika Gupta, learned Counsel for the respondent No. 1 submits that in the accident the respondent No: 1 not only lost his fingers but also sustained injuries in his right hand. Learned Counsel submits that even if it is assumed that the injuries sustained by respondent No. 1 were scheduled injuries, then too, since the respondent No. 1 was labourer, therefore, the loss of earning capacity ought to have been assessed @ 100%. For this contention reliance is placed on a decision in the matter of Alagadurai Vs. P. Immanuel Nasa Justin and Others, , wherein workman employed as driver of heavy goods vehicle sustained injuries when he met with accident during the course of employment resulting in amputation of left leg below knee, workmen claims compensation on the basis of 100% loss of earning capacity while the medical practitioner assessed physical disability at 50% and the contention that injury falls under serial No. 21, Part II of Schedule I and it is impermissible to conclude that workman suffered total disablement u/s 2(1)(1), it was held by Kerala High Court that workman who was capable of performing the work of driver has been totally incapacitated from doing that work. No evidence to indicate that he had a capability of performing any other work at the time of accident whether the workman has suffered total permanent disability as defined u/s 2(1)(1). Further reliance is placed on a decision in the matter of S. Suresh v. Oriental Insurance Co. Ltd., (2011) 2 S.C.C. (Cri) 423, wherein due to accidental work, right leg of appellant amputated below knee and the injured was rendered unfit for work of a driver which he was performing at the time of accident and the Commissioner came to the conclusion that the claimant''s right leg up to the knee having been amputated, he has suffered a loss of 100% of his earning capacity as a driver and the High Court held that being an injury specified in Schedule I, medical opinion could not be relied upon in terms of Section 4(1)(c)(ii) of the Act and reduced the compensation by 50%, Hon''ble Apex Court held that on account of amputation of his right leg below the knee, he is rendered unfit for the work of a driver, which he was performing at the time of 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, 1988. On the strength of the aforesaid position of law learned Counsel submits that the appeal has no merits and involves no substantial question of law, hence the same be dismissed.

From perusal of the record it is evident that to prove the case, respondent No. 1 has filed documents Exts. P/1 to P/71 which relate to the injuries sustained by respondent No. 1 and expenses incurred in treatment. Respondent No. 1 has examined himself, Omprakash Thakur (AW 2) and Dr. Sunil Jakar while the respondent No. 2 has examined Dilip Kumar and the appellant has examined Investigator. Photograph of respondent No. 1 is on record which shows that not only two fingers were amputated but the whole right hand up to the elbow sustained injuries. The respondent No. 1 is labourer and huge amount was spent by the respondent No. 1 in his treatment.

It is true that Part II of Schedule I deals with injuries deemed to result permanent partial disablement. Serial Nos. 27 to 38 deal with amputation of index finger, middle finger, and little finger. In case of amputation of index finger percentage of loss of earning capacity is 14 and in case of middle finger percentage of loss of earning capacity is 12. Apart from amputation of these two fingers, hand of the respondent No. 1 was also damaged to some extent. Percentage of loss of earning capacity as mentioned against injuries in schedule is minimum and not maximum. The Commissioner is not incompetent to assess the loss over and above it. Keeping in view the injuries sustained by the respondent No. 1 and the compensation of disability to the extent of 53% is justified and also the interest awarded. Thus, the substantial questions of law are answered in negative. Appeal filed by the appellant has no merit and the same stands dismissed.

Appellant shall pay the cost of respondent No. 1 which is quantified as Rs. . 5,000/-.