The Oriental Insurance Co. Ltd. vs Arvind Kumar Pandey And Another
2022 Latest Caselaw 7727 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 7.4.2022
 
Delivered on 22.7.2022
 

 
Court No. -5
 

 
Case :- FIRST APPEAL FROM ORDER No. - 2860 of 2005
 

 
Appellant :- The Oriental Insurance Co. Ltd.
 
Respondent :- Arvind Kumar Pandey And Another
 
Counsel for Appellant :- S.K. Kakkar
 
Counsel for Respondent :- L.C. Sahu,Rajeev Sharma
 

 
Hon'ble Salil Kumar Rai,J.

The present appeal under Section 30 of the Workmen's Compensation Act, 1923 (re-named as the Employee's Compensation Act, 1923 and hereinafter referred to as Act, 1923) has been filed by the Insurance Company against the judgment and award dated 22.09.2005 passed by the Workmen's Compensation Commissioner in Workmen Compensation Case No.137/W.C.A/2004 (Arvind Kumar Pandey versus Rajesh Rastogi & another).

The claimant is the opposite party no.1 in the present appeal and the employer is the opposite party no.2.

The facts of the case are that the claimant/opposite party no.1 instituted Case No.137 of 2004 alleging that he was employed as driver by the opposite party no.2 and suffered injuries in an accident which arose out of and in the course of his employment with opposite party no.2 while he was driving the Jeep (bearing Registration No. U.P- 24/A/1399) owned by the opposite party no.2. It was stated in the claim petition that the right leg and the right hand of the applicant was fractured and his right eye was also injured as a result of which the applicant was disabled.  It was further stated in the claim petition that the claimant was employed on a salary of Rs.4000/- per month and was additionally paid Rs.50/- per day as food allowance.  On the aforesaid pleas, the claimant claimed compensation under the Act, 1923.

The employer and the Insurance Company/appellant contested the claim petition and filed their written statements.  In his written statement, the employer admitted the accident and the salary of the claimant as well as the allowance as stated by the claimant. In his written statement, the employer also pleaded that the claimant had a valid driving licence and therefore, the Insurance Company was liable to pay compensation.

In Case No.137 of 2004,  the Commissioner, Workmen's Compensation framed five issues.   Issue no.1 was as to whether the claimant was employed as driver by the opposite party no.2 and whether the claimant suffered injuries in the accident which arose out and in the course of his employment and also as to the loss in the earning capacity of the claimant.  Issue no.2 was as to whether the vehicle i.e., Jeep (bearing registration no. U.P -24/A/1399) was insured with the appellant.  Issue no.3 was regarding the allowances paid to the claimant by opposite party no. 2 and the age of the claimant.  Issue No.4 was as to whether at the time of accident, the claimant had a valid driving licence.  Issue no.5 was as to whether the claimant was entitled to any compensation and the amount of compensation payable to the claimant.

The Commissioner decided Issue No.1 in favour of the claimant.  The Commissioner held that the claimant was employed with opposite party no. 2 and was injured in an accident which arose out of and in the course of employment of the claimant with opposite party no.2.  Issue no. 2  was decided in favour of the insured and the Commissioner has held that the vehicle was insured with the appellant.  On issue no.3,  the Commissioner held that the claimant had not been able to prove his salary as claimed in the claim-petition and therefore, compensation, was to be determined on the basis of minimum wages payable at the relevant time, i.e., Rs.2966/- per month.  The Commissioner also held the age of the claimant to be 34 years on the basis of his date of birth as recorded in the driving licence.  On Issue no.4, the Commissioner, held that at the time of accident, the claimant had a valid driving licence. So far as Issue no.5 is concerned, the Commissioner, relying on the disability certificate issued by the Chief Medical Officer, held that because of the accident, the claimant had suffered 65% disability and determined the loss of earning capacity of the claimant as 100% because of the physical disability suffered by him. On the aforesaid reasoning, the Commissioner awarded a compensation of Rs.3,54,852/- to the claimant. Hence, the present appeal under Section 30 of the Act.  

The appeal was admitted on the following substantial question of law:

" Whether the Workmen's Compensation Commissioner can assess the loss of earning capacity without the assistance of assessment made by the qualified medical practitioner as provided under Section 4(1)(b) and 4(1)(c)(i)(ii) of the Workmen's Compensation Act, 1923?"

It was argued by the counsel for the appellant that the injuries admittedly caused to the claimant are not included in Schedule -I of the Act and therefore, under Section 4(1)(c)(ii) of the Act, the Commissioner could  not have determined compensation without the assistance of a medical practitioner.  It was further argued that the Injuries referred in the Medical Certificate produced by the claimant do not prove that the claimant had suffered permanent total disablement  and he was incapacitated as an employee for all work which he was capable of performing at the time of the accident, therefore, the Commissioner erred in law in holding that the loss of earning capacity of the claimant was 100%.  It was argued that there is no evidence of any loss of earning capacity to the claimant. It was argued that for the aforesaid reason, the judgment and award dated 22.09.2005 passed by the Commissioner is liable to be set aside.

Rebutting the arguments of the counsel for the appellant, the counsel for the claimant, i.e., opposite party no. 1 has supported the award  and argued that from the medical certificate and the injuries referred in the same, it was evident that the claimant had suffered 100% loss of earning capacity and from the  evidence on record, it was also evident that the claimant had to leave his job and could not drive any vehicle after the accident.  It was argued that for the aforesaid reason, there is no error in the impugned award and the appeal is liable to be dismissed.

I have considered the submissions of the counsel for the parties and also perused the record.

I am not referring  or scrutinizing in detail, the findings of the Commissioner on Issue No.1 to 4 as they are not necessary for a decision of the substantial question of law framed in the present appeal.

Before proceeding further it would be relevant to note that the disability report on which  the Commissioner relied was filed by the claimant and marked as Paper no.20/1 in the court below.  The disability report has been issued by the Chief Medical Officer, Bareilly.  The disability report has been issued after the claimant was examined by a medical board which consisted of experts including an Orthopaedic Surgeon and an Ophthalmologist. It has been certified in the disability report that the claimant had suffered 65% disability because of post traumatic fibrous ankylosis in the right elbow and the right knee and wasting of toe muscles with restrictive movements.

It is also to be noted that there is no evidence on record of any medical practitioner  regarding loss of earning capacity occasioned because of any permanent injury caused to the claimant. 

Section 2(g) and (l)  of the Act, 1923 define partial and total disablement. Section 2(g) and (l) are  reproduced below:

"g) "partial disablement" means, where the disablement is of a temporary nature, such disablement as reduces the earning capacity of a [employee] in any employment in which he was engaged at the time of the accident resulting in the disablement, and, where the disablement is of a permanent nature, such disablement as reduces his earning capacity in every employment which he was capable of undertaking at that time : provided that every injury specified [in Part II of Schedule I] shall be deemed to result in permanent partial disablement;

(l) "total disablement" means such disablement, whether of a temporary or permanent nature, as incapacitates [an employee] for all work which he was capable of performing at the time of the accident resulting in such disablement:

[Provided that permanent total disablement shall be deemed to result from every injury specified in Part I of Schedule I or from any combination of injuries specified in Part II thereof where the aggregate percentage of the loss of earning capacity, as specified in the said Part II against those injuries, amounts to one hundred per cent or more]."

The compensation to be awarded to a claimant is to be determined in accordance with Section 4 of the Act.  Section 4(1) of the Act is reproduced below:-

4. Amount of compensation.--(1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:--

(a)

where death results from the injury

an amount equal to [fifty per cent] of the monthly wages of the deceased [employee] multiplied by the relevant factor;

or

an amount of [one lakh and twenty thousand rupees], whichever is more;

(b)

Where permanent total disablement results from the injury

An amount equal to [sixty per cent] of the monthly wages of the injured [employee] multiplied by the relevant factor;

or

an amount of [one lakh and forty thousand rupees], whichever is more:

[Provided that the Central Government may, by notification in the Official Gazette, from time to time, enhance the amount of compensation mentioned in clauses (a) and (b).]

Explanation I.--For the purposes of clause (a) and clause (b), "relevant factor", in relation to [an employee] means the factor specified in the second column of Schedule IV against the entry in the first column of that Schedule specifying the number of years which are the same as the completed years of the age of the [employee] on his last birthday immediately preceding the date on which the compensation fell due.

[* * *]

(c)

Where permanent partial disablement results from the injury

(i) in the case of an injury specified in Part II of Schedule I, such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury; and

(ii) in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury;

Explanation I.--Where more injuries than one are caused by the same accident, the amount of compensation payable under this head shall be aggregated but not so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries.

Explanation II.--In assessing the loss of earning capacity for the purposes of sub-clause (ii), the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in relation to different injuries specified in Schedule I;

(d)

Where temporary disablement, whether total or partial, results from the injury

a half-monthly payment of the sum equivalent to twenty-five per cent of monthly wages of the [employee], to be paid in accordance with the provisions of sub-section (2).

A reading of Section 4(1)(c)(ii) shows that if the injury caused to the employee is not specified in Schedule-I, then the employee is paid such percentage of the compensation as is payable in the case of permanent total disablement and is proportionate to the loss of earning capacity permanently caused by the injury. Further, the loss of such earning capacity  is to be assessed  by a qualified medical practitioner. 

In the present case, there was no assessment of the loss of earning capacity of the employee by a qualified medical practitioner.  The records of the case also do not indicate that the Commissioner had exercised his powers under Section 11 of the Act and had required the employee/ claimant to submit himself for examination by a qualified medical practitioner to assess his loss of earning capacity caused by the injury. In light of Section 4(1)(c)(ii), the Commissioner  could not have awarded compensation for loss of earning capacity without assessment by a qualified medical practitioner.

At this juncture, it would be relevant to refer to the observations of the Supreme Court in Paragraph Nos. 7 & 8 of its judgment reported in  National Insurance Co.Ltd. versus Mubasir Ahmed and another (2007) 2 Supreme Court Cases 349.   The observations of the Court in Paragraph Nos. 7 & 8 are reproduced below:-

""7. These cases related to injuries which were not specified in Schedule I and as such cases are covered by Section 4(1)(c) (ii) Explanation. In terms of Explanation II the qualified medical practitioner has to assess loss of earning capacity having due regard to percentage of loss of earning capacity in relation to the different injuries in Schedule I. Explanation I also provides that where there are more than one injuries, the aggregate has to be taken, so that the amount which would be payable for permanent total disablement is not exceeded.

8. Loss of earning capacity is, therefore, not a substitute for percentage of the physical disablement. It is one of the factors taken into account. In the instant case the doctor who examined the claimant also noted about the functional disablement. In other words, the doctor had taken note of the relevant factors relating to loss of earning capacity. Without indicating any reason or basis the High Court held that there was 100% loss of earning capacity. Since no basis was indicated in support of the conclusion, same cannot be maintained. Therefore, we set aside that part of the High Court's order and restore that of the Commissioner, in view of the facts situation. Coming to the question of liability to pay interest, Section 4-A(3) deals with that question. The provision has been quoted above."

Apart from the aforesaid, there is no evidence that because of the injuries reported in the disability certificate, the employee/claimant was not able to do any other work.  The determination of loss of earning capacity, in light of Section 2(l) has to be in relation to all the work which the workmen was capable of performing at the time of accident and is not to be only with reference to the work which the workmen was performing at the time of accident. 

It may be noted that in his cross examination by the appellant, the employer had specifically stated that he had not terminated the services of the employee/claimant but the claimant had himself left his job.  The aforesaid testimony  indicates that the injuries did not reduce the earning capacity of the claimant in every employment which he was capable of taking at the time of accident or incapacitated him from performing all work which he was capable of performing at the time of accident.

In view of the aforesaid, the conclusion of the Commissioner is without any basis and is therefore, not sustainable. 

For the aforesaid reasons, the award dated 22.09.2005 passed by the Workmen's Compensation Commissioner is contrary to law and is liable to be set aside and is hereby set aside.  However, in the interest of justice, and considering that the claimant had suffered grievous injuries, it is provided that the amount already disbursed to the claimant/opposite party no.1/employee under the interim order of this Court dated 2.12.2005 shall  not be recovered from the employee.  However, the Commissioner is directed to refund the balance amount to the appellant, Insurance Company which have been deposited by the appellant in compliance of the Proviso to Section 30 of the Act, 1923.

With the aforesaid observations, the appeal is allowed.

There shall be no order as to costs.

Order Date :- 22.7.2022

IB