The Andhra Pradesh High Court has held that of workman's limb shall be treated as 100% loss of earning capacity, irrespective of disability assessment.
The single-judge bench of Justice Ravi Nath Tilhari in an appeal under Section 30 of the Workmen’s Compensation Act filed by M/S. United India Insurance Company Limited through its divisional manager, challenging the judgement and award on the file of the commissioner for workmen’s compensation & Assistant Commissioner of Labour, under Section 22 of WC Act 1923.
Brief Facts of the Case
In this matter the 1 st respondent, claimed he was 23 years on the date the met with the accident and he acquired permanent total disability due and the 2 nd respondent claimed Rs. 2,00,000/- towards compensation along with interests.
The appellant –Insurance Company also filed counter affidavit and denied all the allegations of the 1 st respondent.
The commissioner for Workmen’s Compensation, Kurnool and the Assistant Commissioner of Labour, Kurnool framed the following issues for examination.
1) ‘Whether there was employee-employer relationship between the applicant and the Opposite Party No.1 as on the alleged date of accident?
2) Whether there was an accident out of an and in the course of employment of the applicant with the Opposite Party No.1 resulting in his injuries.
3) The extent of loss of earning capacity suffered by the applicant due to the injuries he sustained in the alleged accident,
4) Whether the opposite parties No.1 and No.2 are liable to pay compensation, if payable.
The 1 st respondent submitted the required documents, on examination the Commissioner found out that he had sustained serious injuries which led to physical disability. The appellant challenged the award to the extent of grant of compensation with interest. After which the 1 st respondent filed challenging the award to the extent the Commissioner had not imposed penalty upon the appellant and the 2 nd respondent. The arguments presented by the appellant were submitted as;
1) As per the medical certificate of disability, the 1 st respondent was assessed as 40% and therefore, the Commissioner legally could not be determined more than 40% as the injury sustained by the 1 st respondent was a non-specific injury in Schedule -1. In the view of section 4(1) (c) (ii) of the WC Act, 1923.
2) In the second submission he stated that on the compensation amount, no interest could be awarded as there is no provision for awarding of interest on the compensation amount.
Further the appellant submitted that there was no period of limitation for filing the application under Section 22 of the WC Act, 1923 at that point of time and consequently he did not advance any arguments with respect to the filing of the claim petition after two years of the accident.
The first submission presented in the court by the appellant’s counsel is that the Commissioner has illegally determined the loss of earning capacity as 100%, which ought to have been restricted to 40% which is the percentage of physical disability assessed under medical certificate.
Section 3(1) of the WC Act 1923 states that if personal injury is caused to a workman arising out of and in the course of his employment, his employer shall be liable to pay compensation under the provision stated in chapter –ii , Section -4 of the WC Act 1923.
Learned Counsel for the appellant relied on Raj Kumar vs Ajay Kumar wherein the Apex Court held that,’ the disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human being. The percentage of permanent disability as expressed by the doctors with reference to the whole body, or more often than not, with reference to a particular to the whole body, or more often than not, with reference to a particular limb. The percentage of the permanent disability cannot be mechanically applied as percentage of economic loss or loss of earning capacity.
Reliance was also placed on Mohan Soni Vs. Ram Avtar Tomar and Ors., 2012 Latest Caselaw 19 SC held that,’ any scaling down of the compensation should require something more tangible than a hypothetical conjecture that notwithstanding the disability, the victim could make up for the loss of income by changing his vocation or by adopting another means of livelihood.
It was also observed,’ "it as all very well to theoretically talk about a cart-puller changing his work and becoming a vegetable vendor. But the computation of compensation payable to a victim of motor accident who suffered some serious permanent disability resulting from the loss of limb, etc., should not take into account such indeterminate factors."
High Court's Observation
The Court however was not convinced with the submission of the appellant. It noted that Section 4-A WC Act 1923 provides for payment of interest on the compensation amount, as determined under the award, as also the penalty if there is no justification for delay.
Referrence was made to Pratap Narain Singh Deo Vs. Srinivas Sabata & ANR, 1975 Latest Caselaw 298 SC, wherein the Hon’ble Apex Court held, "the employer became liable to pay the compensation as soon as the personal injury was caused to the workman by the accident which rose out of and in the course of the employment."
In Siby George the question that arose for consideration was, ‘when does the payment of compensation under the Workmen’s Compensation Act, 1923 becomes due and consequently what is the point in time from which interest would be payable on the amount of compensation as provided under Section 4-A(3) of the Act?’ It was held that the payment of compensation fell due on the date of the accident as laid down in Pratap Narain Singh Deo.
The Court thus conlcuded that there was no illegality in the judgement and the award by the Commissioner.
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