HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY
C.M.A. No.75 of 2015
JUDGMENT :
This Appeal is arising out of the orders passed in W.C.No.111 of 2014 dated 19.11.2014 on the file of the Commissioner For Employee's Compensation And Assistant Commissioner of Labour-IV: T.Anjaiah Karmika Sankshema Bhavanam, Hyderabad.
2. For the sake of convenience, the parties herein are referred to as arrayed in the Court below.
3. The appeal is filed by the opposite party No.2 i.e., HDFC ERGO General Insurance Company Limited.
4. It is the contention of the learned counsel for the appellant that the Court below failed to consider that under Section 4 of the Explanation 1 (c) of Workmen Compensation Act, the qualified medical practitioner can assess the disability in the case of permanent total disability. The case which was tried before the Court below is not the case of permanent total disability and it is a 2 permanent partial disability and the percentage of loss of earning capacity in relation to different injuries is explained in Schedule I which was not appreciated by the trial Court.
5. It is further urged by the learned counsel for the appellant that as per the settled law, the claimant should adduce best possible evidence and there is no explanation as to why the doctor who treated the applicant was not examined and that the trial Court failed to consider that the evidence of A.W.2 and the disability certificate issued by him, cannot be taken as proper and valid. He further contended that the trial Court has wrongly fixed the loss of earning capacity as 100% and prayed to set aside the award passed by the Commissioner.
6. Heard the learned counsel for the appellant and the learned counsel for the respondents.
7. Initially, this Court has passed interim stay of execution of orders passed in W.C.No.111 of 2014, dated 19.11.2014 on 12.02.2015.
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8. The claim of the applicant before the Court below is that applicant is a workman within the meaning of the Act and worked as cleaner on a lorry bearing No.AP-28-TC-52808 under the employment of 1st respondent. He received personal injuries in an accident which occurred on 09.09.2012 during the course of his employment while he was travelling in the said lorry from Mumbai to Hyderabad. It is the specific contention of the applicant that the driver of the lorry drove the lorry in a rash and negligent manner and in order to escape a hit to a person, the driver applied sudden breaks due to which, the driver lost control over the lorry and the lorry turned turtle. Because of the said accident, the applicant sustained fracture of shaft femur and other injuries all over the body. Initially, the applicant was shifted to a local hospital and thereafter, he was shifted to Gandhi Hospital, Secunderabad, where he underwent treatment from 09.09.2012 to 11.09.2012 and later he was shifted to L.K.Hospital, Malkajgiri, Secunderabad.
9. It is the further case of the applicant that he was being paid wage of Rs.6,000/- p.m. by the 1st opposite party and was aged 4 about 30 years at the time of accident. The 1st opposite party insured the lorry with the 2nd opposite party i.e., appellant herein and as on the date of the accident, the policy was in force, therefore, the applicant claims Rs.6,00,000/- towards compensation.
10. A detailed counter was filed by the contesting 2nd respondent i.e., the appellant herein denying all the allegations made therein and also about its liability. It is the specific case of the appellant herein that driver of the lorry does not hold valid driving license and there is no valid permit and fitness certificate to the lorry as on the date of the accident. It is further contended that as the lorry is moving at the risk of 1st opposite party, the 1st opposite party alone is responsible for payment of compensation and not the insurance company.
11. The applicant was examined as A.W.1 and the doctor was examined as A.W.2. and Exs.A-1 to A-9 were got marked. 5
12. The Commissioner holding the Court below after considering the oral and documentary evidence on record has granted total compensation of Rs.5,82,987/-payable to the applicant and the opposite parties 1 and 2 are directed to deposit the said compensation along with interest @ 12% per annum from 10.10.2012 till the date of realization.
13. On perusal of oral and documentary evidence, it is evident that A.W.2/doctor who was examined on behalf of the applicant was not the doctor who has treated the applicant and he is a private medical practitioner. As per Kessler's guidelines, he assessed the permanent total disability of the applicant as 45%, as it is concerned to the limb, but came to a conclusion with regard to loss of earning capacity as 100%.
14. Admittedly, the applicant is not the driver and he is only a cleaner and the permanent total disability is assessed as 45%. The nature of work as of the cleaner is concerned, the permanent total disability of 45% only has to be taken for considering the 6 compensation. Even in the absence of limb, the loss earning capacity cannot be calculated as 100%.
15. In support of his contentions, the learned counsel for the appellant relied on the judgment of the Apex Court reported in Rajkumar vs. Ajay Kumar and another1 wherein it is held as under:-
"The heads under which compensation is awarded in personal injury cases are the following :
Pecuniary damages (Special Damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General Damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
1 2011 ACJ 1 7 In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life. Assessment of pecuniary damages under item
(i) and under item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses - item (iii) -- depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages - items (iv), (v) and (vi) -- involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decision of this Court and High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability - item (ii)(a). We are concerned with that assessment in this case The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give `ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross- examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability."
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16. The above said citation squarely applies to the present facts and circumstances of the case. Admittedly, A.W.2 is not the person who treated A.W.1. Furthermore, Ex.A-5/disability certificate was issued by A.W.2. Mere production of disability certificate will not be the proof to the extent of disability, unless the Doctor who treated the applicant deposed about the extent of disability sustained by the appellnat.
17. On the other hand, learned counsel for the respondents contended that there is no irregularity in the orders passed by the Commissioner and prayed to dismiss the appeal.
18. In support of his contentions, he relied on the judgment reported in B.Lakshmana vs, Divisional Manager, New India Assurance Company Limited2 wherein it is held as follows:-
"Under Section 4 of the Act, it is sufficient if the loss of earning capacity is assessed by a qualified and registered medical practitioner. The insurer does not have a case that PW7 is not a qualified medical practitioner. He is a registered medical practitioner and he is an orthopedic surgeon. There is no dispute with regard to his competence to issue the disability certificate."
2 2013 Lawsuit (SC) 1263 9
19. The above said citation squarely applies to the present facts and circumstances of the case i.e., the disability certificate cannot be discarded. But as far as loss of earning capacity is concerned , it is A.W.2/doctor who has assessed the loss of earning capacity of applicant as 100%, wherein the disability certificate clearly discloses that the applicant/claimant sustained only one fracture to the femur and accordingly, the disability is assessed as 45%. As such, it can be construed that the appellant with 45% disability is capable of doing other works. But, if a driver is disabled, his earning capacity becomes zero as he cannot drive any vehicle without a limb or a leg. In the present case, the appellant is the cleaner, therefore, the loss of earning capacity fixed by the Tribunal as 100% is modified to 75% and the matter is remanded back to the Commissioner-Labour Court IV to make appropriate calculations taking into consideration the loss of earning capacity of the applicant as 75% and pass appropriate orders.
20. Appeal is accordingly disposed of. No order as to costs. 10
21. As a sequel, pending miscellaneous applications, if any, shall stand closed.
_______________________________ G. ANUPAMA CHAKRAVARTHY, J Date: 19.04.2023 dv