The Single Bench of the Bombay High Court consisting of Justice Shrikant D. Kulkarni held that as per Section 4-A(3)(a) of the Employees Compensation Act, 1923, since the right leg below knee of the appellant was amputed which caused loss of 100% earning capacity, it was a case of total disablement and accordingly, the compensation needs to be assessed.
Facts
The appellant/original claimant was working as a labour on the vehicle/tempo owned by respondent No. 1. He was getting monthly salary of Rs. 6,000/- per month. The appellant along with other labours were discharging their duty on the vehicle. They went to Kabra Marbles. After loading the goods in the vehicle, they arrived at the house of one Mr Patil. The appellant along with other labours were unloading the goods. While unloading the goods, one sheet of granite fell on the right leg of the appellant and the right leg of the appellant was fractured. Another labour also sustained fracture injury to his right hand. It was a crush injury to right leg of the appellant. The appellant was admitted in a hospital. The right leg of the appellant came to be amputed. According to the appellant, it is a case of 100% permanent disability, and it is a loss of 100% earning capacity. However, the learned Civil Judge, Senior Division and Commissioner for Employees Compensation determined permanent disability to the extent of 75% and awarded compensation of Rs. 3,66,930/- including expenses of medical treatment etc.
Procedural History
Feeling aggrieved by the impugned Judgment and Award passed, the appellant has preferred this appeal.
Contentions made
Appellant- Even though it was stated that appellant’s disability is 75% and disability certificate to that effect is issued, it is a case of 100% loss of earning capacity. The appellant was working as a labour. Due to amputation of his right leg, he is unable to discharge his work as a labour. The appellant is entitled to get compensation by holding that it is a case of 100% loss of earning capacity. As per Section 4-A(3)(a) of the Employees Compensation Act, 1923, the appellant/original claimant is entitled to get interest @ 12% per annum. The impugned award passed by the learned Civil Judge needs to be modified by holding that it is a case of 100% loss of earning capacity. Reliance was placed on Pratap Narain Singh Deo vs Shrinivas Sabatra & Anr and Shri Chanappa Nagappa Muchalagoda vs Divisional Manager, New India Insurance Company Limited.
Respondent- They supported the findings recorded by the learned Civil Judge, Senior Division and Commissioner of Employees Compensation as well as amount of compensation. The appellant/original claimant is suffering from 75% permanent disability, and it is not a case of 100% loss of earning capacity. There is no need to enhance compensation.
The Court observed that:
“The appellant had sustained crush injury, fracture to femur and tibia fibula with neuromuscular injury, with above knee amputation right lower limb. The right leg of the appellant is amputed. The controversy is about loss of earning capacity of the appellant. The controversy is about loss of earning capacity of the appellant. Dr Bhagwan Pundge while facing the cross-examination has stated that the appellant can work with his hands. Dr Pundge has not given clear opinion in this case whether it is a case of 100% loss of earning capacity. When it is proved factually by the appellant that it is a case of loss of 100% earning capacity why one need help of expert opinion like Doctor. The facts are very much clear and unambiguous focusing the light on the loss of earning capacity of the appellant.”
They further observed:
“The appellant/original claimant has lost his 100% earning capacity. It is a case of total disablement. As such, the findings to that effect recorded by the Civil Judge, Senior Division and Commissioner for Employees Compensation need to be set aside. It must be held that it is a case of loss of 100% earning capacity and accordingly, the compensation needs to be assessed.”
Judgment
The Bench held that the appellant/original claimant was entitled to get interest under Section 4/A (3)(a) @ 12% per annum. The appeal was hereby allowed. Respondent Nos. 1 and 2 shall jointly and severally pay total compensation of Rs.7,33,860/-. Respondent No. 1 shall pay 20% as penalty on the amount of compensation determined by this Court and 12% interest per annum thereon after expiry of one month from the date of Judgment and order passed by the Civil Judge, Senior Division and Commissioner for Employees’ Compensation till full payment to the appellant/original claimant.
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