THE HON'BLE Dr. JUSTICE G. RADHA RANI
CIVIL MISCELLANEOUS APPEAL No.4479 of 2004
JUDGMENT:
This appeal is filed by the Insurance Company - Opposite Party No.2 aggrieved by the Award passed by the Commissioner for Workmen's Compensation and Assistant Commissioner of Labour, Khammam, in W.C. Case No.27 of 2002 (N.E.), dated 30.06.2004. Respondent No.1 is the applicant and the respondent No.2 is the Opposite Party No.1.
2. The parties are hereinafter referred to as they were arrayed in the WC case.
3. The case of the applicant - respondent No.1 was that he was employed by the Opposite Party No.1 - respondent No.2 as a Driver and worked for four years as driver on the lorry bearing No.AP 16 V 7448 and was paid Rs.4,000/- per month. On 31.12.1999 at 1.00 P.M., he drove the vehicle to the godown of Opposite Party No.1 situated in Gollagudem Basthi of Kothagudem and loaded empty plastic bags of 25,000 in the lorry, out of which two bundles could not be loaded as the lorry was filled in full capacity and kept those two bundles in the cabin. The cleaner of the lorry, Mohd.Azeez Khan, while attempting to throw the empty bundles from the cabin into the body of the lorry, accidentally came into contact with 11 K.V. live electric wire and sustained severe burnt injuries. The applicant tried 2 Dr.GRR,J CMA No.4479 of 2004 to rescue the cleaner but, the electric shock transmitted through the iron body of the lorry, pulled him towards the lorry without allowing him to be released. Due to this, the applicant sustained grievous injuries on the left and right feet and hand fingers. The cleaner died due to the electric shock. The applicant submitted that he lost grip of his left foot totally and partially of right foot fingers and became useless in driving. He claimed compensation of Rs.3,00,000/- against the Opposite Parties No.1 and 2, who were the owner and Insurer of the lorry, respectively.
4. The applicant examined himself as PW.1 and examined the Doctor, who treated and issued the disability certificate, as PW.2 and got marked Exs.A1 to A7 on his behalf. Opposite parties No.1 and 2 had not adduced any oral evidence but, Opposite Party No.1 got marked Exs.B.1 and B2 and Opposite Party No.2 got marked Ex.R-1
- copy of policy.
5. On considering the oral and documentary evidence on record, the Commissioner awarded an amount of Rs.3,10,748/-, more than the amount claimed, along with interest. Aggrieved by the said Award, the Insurance Company - Opposite Party No.2 preferred this appeal contending that the Doctor, who issued the disability certificate was not a qualified doctor, there was no evidence from the applicant's side about the treatment taken by him from the date of injury on 31.12.1999 till 19.03.2003, as such, the disability certificate issued by the doctor ought not to have been taken into consideration, the 3 Dr.GRR,J CMA No.4479 of 2004 Commissioner erroneously assessed the loss of earning capacity at 100% even though PW.2 assessed the disability at 20%, and prayed to allow the appeal.
6. Heard the learned counsel for the appellant and the learned counsel for the respondent No.1-claimant.
7. Learned counsel for the appellant contended that there was no nexus between the injuries sustained by the applicant and the accident. The disability certificate was issued by PW.2-Doctor in the year 2003, PW.2 examined the applicant on the date of accident on 31.12.1999, but had not stated about the amputation of toes and no other doctor was examined. The Commissioner wrongly assessed the loss of earning capacity at 100% when there was no evidence that the applicant could not do any other work. He further submitted that the applicant was permitted to withdraw Rs.2,00,000/- during the pendency of the appeal, and hence, the award may be limited to the said extent and prayed to allow the appeal.
8. Sri R. Nageswara Rao, learned counsel representing Sri P.V. Mahesh, learned counsel on record for respondent No.1-claimant submitted that the injury certificate-Ex.A5 was issued by PW.2 himself, which would disclose amputation of toes. The evidence of PW.2 would disclose that the applicant could not operate clutch or brakes and he lost grip of both feet, the applicant was removed from service, as such, he sustained 100% functional disability due to loss of 4 Dr.GRR,J CMA No.4479 of 2004 employment. The assessment made by the Commissioner was proper and would need no interference and prayed to dismiss the appeal.
9. On perusal of the record, there was no dispute about the employment of the applicant with Opposite Party No.1 and with regard to wages accepted by the Commissioner as Rs.2,653/- per month as per the G.O. under Minimum Wages Act, 1948, the age of the claimant and the factor taken. The only dispute was with regard to the assessment of the disability by the Commissioner as 100% when the doctor assessed the disability at 20%. The applicant was a driver and he sustained burnt injuries during the course of his employment with the Opposite Party No.1. As per the evidence of PW.2, the applicant could not drive the vehicle because of the injuries which resulted in lack of grip of both feet. The doctor assessed the disability as 20% basing on Schedule-I Part-II at serial No.24 of the Employees Compensation Act, 1923 as the 3rd and 4th toes of left foot of the applicant were amputated completely and right foot 5 toes were amputated partially and resulted in permanent partial disablement.
10. The learned counsel for the applicant relied upon the judgments of the Hon'ble Apex Court in Jakir Hussein v. Sabir & Others (Civil Appeal No.2006 of 2015) and Sri Chanappa Nagappa Muchalagoda v. Divisional Manager, New India Insurance Company Limited (Civil Appeal No.9306 of 2019). The Hon'ble Apex Court in both the above cases, relied upon its earlier judgment 5 Dr.GRR,J CMA No.4479 of 2004 in Raj Kumar v. Ajay Kumar and Others [(2011) 1 SCC 343], wherein it was held in paragraph 10 of the said judgment as follows:
"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 ability (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.
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 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. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may."
11. By referring to various other judgments, particularly, pertaining to the workmen working as drivers who met with accidents and were unable to earn their living as drivers due to amputation of 6 Dr.GRR,J CMA No.4479 of 2004 legs, it was held that the functional disability has to be assessed as 100%.
12. The applicant lost his ability to work as a driver, lost his employment due to lack of grip of both feet as per the evidence of the doctor - PW.2. PW.2 is a Deputy Civil Surgeon working in the Area Hospital Kothagudem, Khammam District. He treated the applicant in the Government Area Hospital, Kothagudem and issued disability certificate under Ex.A6 and Medical certificate under Ex.A5. Ex.A5 would disclose that the applicant sustained burnt injuries to both feet due to the electric shock and sustained amputation of 3rd and 4th toes of left foot and partial amputation of five toes of right foot. PW.2 - doctor was the competent person to issue the disability certificate as per the definition under Section 2(i) of the Workmen's Compensation Act, 1923.
13. Considering the evidence of PWs.1 and 2 and the exhibits marked as Exs.A5 and A6, the loss of earning capacity is rightly taken as 100% by the Commissioner. The contention of the learned counsel for the appellant - Insurance company that the applicant can take up any other alternative employment, is not justified as what is material to be considered is whether the applicant is capable of performing the work which he was doing at the time of accident but not whether he has capacity enough to perform any other work. Hence, I do not find any merit in the contention of the learned counsel for the appellant -
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Insurance company that the assessment was not made correctly. As such, the appeal is liable to be dismissed.
14. Accordingly, the appeal is dismissed, confirming the award, dated 30.06.2004, passed in W.C. Case No.27 of 2002 (N.E.), by the Commissioner for Workmen's Compensation and Assistant Commissioner of Labour, Khammam. The applicant is permitted to withdraw the balance amount deposited before the Court below. No order as to costs.
Miscellaneous Petitions pending, if any, shall stand closed.
_____________________ Dr. G. RADHA RANI, J Date:25-10-2021 KTL