Andhra Pradesh High Court - Amravati

The Oriental Insurance Company ... vs Rokkam Appa Rao And Another on 22 January, 2021

Bench: M.Venkata Ramana

              HON'BLE SRI JUSTICE M.VENKATA RAMANA

            CIVIL MISCELLANEOUS APPEAL No. 112 of 2006

JUDGMENT:

This Civil Miscellaneous Appeal is directed against the order of the

Commissioner for Workmen's Compensation and Assistant Commissioner

of Labour, Eluru in W.C.No.43 of 2004 dated 17.03.2005.

2. The 2nd respondent insurer before the Commissioner is the

appellant. The 1st respondent was applicant and whereas the 2nd

respondent was the 1st respondent before the Commissioner.

3. The 1st respondent was a lorry driver. He was employed by the

2nd respondent, who is the owner of the lorry AIW 4146, and this lorry

was insured with the appellant on the date of the accident i.e.,

12.08.2003.

4. On 12.08.2003 at about 2.30 a.m. while the 1st respondent was

driving the above lorry, on the way between Jangareddygudem and

Tadepalligudem with a load of tobacco bales, at Munduru it suffered an

accident and it fell into a rivulet 20 feet below. In this accident, the 1st

respondent suffered injuries to his person particularly the right arm apart

from head. A case was registered in respect of this accident in Denduluru

Police Station issuing an FIR and after due investigation, a charge sheet

was also laid in the jurisdictional Court. The 1st respondent was treated in

Government General Hospital,Eluru and he claimed that he had three

major surgeries in the course of treatment. The 1st respondent also

claimed that he is unfit to drive the lorry.

5. The 1st respondent further contended that the 2nd respondent

was paying him Rs.4,000/- per month as wages and on account of the MVR,J CMA No.112 of 2006

permanent disability suffered, having regard to his age he claimed that he

is entitled for Rs.3,00,000/- as compensation payable by the 2nd

respondent and the appellant. Thus, the 1st respondent had set up his

case before the Commissioner.

6. The 2nd respondent and the appellant resisted this claim of the

1st respondent denying the nature of the accident while questioning the

justification in the claim. The 2nd respondent also contended that the 1st

respondent was the driver of this lorry only for a short period who never

worked as a regular driver on monthly wages. However, she contended

that the accident occurred on account of the negligent driving of the 1st

respondent, who was driver of the offending lorry at the time of this

accident.

7. The Commissioner settled the following issues basing on the

pleadings and material, for determination:

"1.Whether the applicant is a workman, the accident occurred on duty, during the course of employment or not?

2. What are the wage and age particulars to determine the quantum of compensation and quantum of compensation payable?

3. Whether all the Opposite parties are liable to pay compensation or not?"

8. Before the Commissioner in the course of enquiry, the 1st

respondent examined himself as A.W.1 and the Orthopaedic Surgeon who

was a Member of Medical Board that issued Ex.A5 disability certificate as

A.W.2 while relying on Ex.A1 to Ex.A8. The 2nd respondent examined

himself as R.W.1 and no oral evidence was let in before the Commissioner

on behalf of the appellant, who however relied on Ex.B1 an attested copy

of policy of insurance.

MVR,J CMA No.112 of 2006

9. Basing on the material, the Commissioner held that the 1st

respondent suffered a functional disability of 100% though the physical

disability as per the Orthopaedic Surgeon and Ex.A5 stood at 40% on

account of mal-united fractures of both the bones of right forearm.

Applying G.O.Ms.No.30, Labour Employment, Training and Factories

(Lab.II) Department, dated 27.07.2000 treating the minimum wage of the

driver at Rs.2,587/- per month and VDA then payable at Rs.1,000/-,

applying the relevant factor viz., 218.47, compensation was determined at

Rs.4,71,239.79 ps., which was rounded off to Rs.4,71,240/- directing the

2nd respondent and the appellant to pay jointly and severally.

10. It is against this order, the present Civil Miscellaneous Appeal is

preferred by the insurer mainly questioning the quantum of compensation

arrived at.

11. Smt. S.A.V.Ratnam, learned counsel for the appellant, Sri

K.Jyothi Prasad, learned counsel for the 2nd respondent, and Sri Syam

Sundar Rao, learned counsel for the 1st respondent, addressed arguments.

12. In the grounds of appeal, the following substantial questions of

law are stated:

"1. Whether the order of the Commissioner is sustainable in view of the law laid down that the disability should not be more than what is assessed by medical evidence?

2. Whether the order of the Commissioner is correct in assessing the disability at 100% when the medical evidence shows the disability as 40%?"

13. It is desirable to consider both these substantial questions of

law together, since the facts and material for their consideration overlap

and require common findings to be recorded in this appeal.

MVR,J CMA No.112 of 2006

SUBSTANTIAL QUESTIONS OF LAW Nos. 1 & 2:

14. The material on record has established that on 12.08.2003 at

about 2.30 a.m. at Munduru on Jangareddygudem-Tadepalligudem Road,

the offending lorry belonging to the 2nd respondent suffered an accident

and that the 1st respondent was its driver.

15. Though the contention of the 2nd respondent is that the 1st

respondent was not a regular driver of this lorry who was employed only

for a week as per her counter and as per her deposition only for 4 days,

she admitted in the course of enquiry that at the time of the accident the

1st respondent alone was the driver of the offending lorry. This fact was

considered by the Commissioner in right perspective in appreciation of the

material. It is further established that at the time of the accident the 1st

respondent was employed by the 2nd respondent as his employer.

16. Thus, it established the jural relationship between the

respondents inter se as 'workman and employer' respectively. Hence, the

jurisdiction under Workmen's Compensation Act can be clutched at. Thus,

there is justification in making an application for compensation on account

of the injuries suffered by the 1st respondent in the accident concerned to

this case against the 2nd respondent and the appellant. It is also not in

dispute and in view of Ex.B1 copy of insurance policy that the relationship

between the 2nd respondent and the appellant as 'insured and insurer' was

subsisting by the date of the accident.

17. The 1st respondent as A.W.1 not only deposed with reference

to the nature of the accident but also in respect of the injuries suffered by

him therein. Predominant among these injuries are fractures suffered to

his right forearm.

MVR,J CMA No.112 of 2006

18. It is supported and corroborated by the testimony of Dr.

A.V.R.Mohan (A.W.2) who was then Civil Assistant Surgeon in District

Government General Hospital, Eluru. He examined the 1st respondent on

05.06.2004 as a Member of the Medical Board and thereupon Ex.A5

disability certificate was issued. The evidence of Dr. A.V.R.Mohan reflected

that the 1st respondent suffered mal-united fractures of both the bones of

right forearm resulting in permanent disability and that it being the

dominant limb it carried 15% more disability when compared to the left

arm. Thus, the Medical Board opined that the 1st respondent suffered

40% physical disability.

19. It is settled proposition of law that physical disability and

functional disability are two separate and distinct factors. It is not

necessary that extent of physical disability is always a reflection of similar

extent of functional disability. Being a driver of the lorry at the time of the

accident, when his right forearm was so grievously affected resulting 40%

physical disability, it is manifest that the 1st respondent cannot make use

of this arm as a driver any more. Obviously, he was a long distance driver

having an appropriate driving licence as seen from Ex.A4 to drive heavy

vehicles. Thus, the fact situation appears that he would not be in a

position to drive heavy vehicles any more. It should be a factor to decide

the extent of functional disability.

20. The deformity so suffered going by the version of the 1st

respondent and the Orthopaedic Surgeon A.W.2, is permanent. Basing on

such material, the Commissioner considered the functional disability of the

1st respondent at 100%.

21. Smt. S.A.V.Ratnam, learned counsel for the appellant,

strenuously contended that when the disability certificate and medical MVR,J CMA No.112 of 2006

opinion reflected only 40%, considering the functional disability at 100%

is erroneous. In support of this contention, the learned counsel for the

appellant relied on Oriental Insurance Company Limited vs. Mohd.

Nasir and another1. It is the main contention of the learned counsel for

the appellant that in terms of section 4 of the Workmen's Compensation

Act, the opinion of the qualified medical officer should be the criteria for

arriving at the extent of the functional disability and in case of non-

scheduled injuries, compensation if any to be awarded, should be

confined strictly in terms thereof and having regard to its first schedule.

22. In the above ruling of Hon'ble Supreme Court, the effect of

Section 4 of the Workmen's Compensation Act and related provisions of

Motor Vehicles Act, 1998 in Sections 140, 142, 143, 144 and second

Schedule appended to the said Act were considered. In that context in

Paras 8 to 10 it is stated as under:

"8. Both, the 1923 Act and 1988 Act are beneficent legislation insofar as they provide for payment of compensation to the workmen employed by the employers and/or by use of motor vehicle by the owner thereof and/or the insurer to the claimants suffering permanent disability.

9. The amount of compensation is to be determined in terms of the provisions of the respective Acts. Whereas in terms of the 1923 Act, the Commissioner who is a quasi judicial authority, is bound to apply the principles and the factors laid down in the Act for the purpose of determining the compensation, Section 168 of the 1988 Act enjoins the Tribunal to make an award determining the amount of compensation which appears to be just.

10. Both the Acts aim at providing for expeditious relief to the victims of accident. In these cases, the accidents took place by reason of use of motor vehicles.

Both the statutes are beneficial ones for the workmen as also the third parties. The benefits thereof are available only to the persons specified under the Act besides under the Contract of Insurance. The statutes, therefore, deserve liberal construction. The legislative intent contained therein is required to be interpreted with a view to give effect thereto."

. (2009)6 SCC 280 MVR,J CMA No.112 of 2006

23. The predominant question considered in the above ruling of

the Hon'ble Supreme Court is with reference to the injuries specified in

the first schedule of the Workmen's Compensation Act. In my considered

opinion, this ruling cannot be made applicable to the given facts and

circumstances of the case in as much as there is no reference as to the

effect of non-scheduled injuries, specified in Section 4(1)(c)(ii) of the Act.

The consideration thus confined only to the first schedule of this Act. It is

evident from the following observations at Paras 11 & 13 in this ruling.

"11. .......Indisputably where injuries are specified in the First Schedule, the mode and manner provided for the purpose of calculating the amount of compensation would be applicable."

12. ........

13. As to what, therefore, in our opinion, would be relevant is to find out the nature of injuries and as to whether the same falls within the purview of Part I or Part II thereof. We have noticed hereinbefore that whereas Part I specifies the injuries which would deem to result in permanent total disablement, Part II specifies injuries which would be deemed to result in permanent partial disablement. The distinction between the `permanent total disablement' and `permanent partial disablement' is that whereas in the former it is 100% disablement, in the latter it is only the disablement to the extent specified in the Schedule."

24. The injuries suffered leading to such deformity by the 1st

respondent are non-scheduled injuries and therefore the compensation

should be assessed in terms of Section 4(1)(c)(ii). The nature of such

disability suffered is permanent partial in nature. In such an event, the

percentage of compensation payable should be proportionate to loss of

earning capacity as assessed by the qualified medical practitioner. In

terms of explanation-II appended to Section 4(1)(c) of Workmen's

Compensation Act, the qualified medical practitioner shall have due regard

to the percentage of loss of earning capacity in relation to different

injuries specified in Part-II of Schedule-I.

25. When the total disablement should be considered in terms of

Section 2(l) of the Workmen's Compensation Act, which is applicable to MVR,J CMA No.112 of 2006

disablement either temporary or permanent in nature, the situation of a

workman for all work he was capable of performing at the time of the

accident should be the prime criteria.

26. Explanation -I to Section 4(1)(c) of Workmen Compensation

Act applies in case of assessment of compensation, where the victim in an

accident suffered more injuries than one. In such situation, the amount

of compensation payable under this Act should be aggregated, which

should not in any case exceed the amount, which would have been

payable if permanent total disablement had resulted from the injuries.

27. Thus, what is stated in explanation above, may offer guidance

in exercise of discretion in arriving at compensation payable for non-

scheduled injuries and that it cannot be a binding factor by itself, when

circumstances in a given case, required application of appropriate

measure relating to loss of earning capacity. It should also be borne in

mind that where an individual suffers such injuries of the nature observed

in this case, when law in this respect is elastic, discretion to exercise

should be of such nature, that leads to assessing and awarding a just

compensation. Exercise of sound discretion by the Commissioner and the

course necessarily be on such parameters, which should advance the

cause of justice, having regard to nature of this legislation being one for

welfare of the working class.

28. A straight jacket formula cannot be evolved to fit in all

circumstances and a narrow and constricted interpretation is not possible

to be applied nor can it be a right method in assessing the compensation.

Apparently and by design the legislature did not restrict setting out norms

in the case of non-scheduled injuries.

MVR,J CMA No.112 of 2006

29. Added to it, the Commissioner had distinct advantage of

observing the physical appearance of the 1st respondent before him in the

course of enquiry. In such an event, while considering the matter in

appeal, it is desirable that the appellate Court should be rather slow to

interfere with the inferences drawn basing on the fact situation.

30. When the 1st respondent suffered such disability, on account of

which he cannot make use of his right arm for any other work or purpose,

since a dominant limb has almost lost its utility, considering the functional

disability at 100% by the commissioner is just and appropriate. Merely

because he has another arm did not suffer such disability, it cannot be

stated that he can as well attend to other work and that it influences

consideration for assessment of functional disability.

31. The Commissioner took into consideration minimum wage

properly along with variable D.A. then applicable and considering that the

1st respondent was 24 years old on the date of the accident relying on

entries in Ex.A4 driving licence, applying appropriate factor, arrived at

such compensation stated above.

32. The compensation so awarded is in terms of the Workmen's

Compensation Act. The course to award more compensation than what

has been claimed in the application is permissible. Oriental Insurance

Company Limited vs. Mohd. Nasir and another referred to supra also

considered this question and held in affirmative. In para 27 of this ruling

in this context it is held as under:

"27. The function of Commissioner is to determine the amount of compensation as laid down under the Act. Even if no amount is claimed, the Commissioner must determine the amount which is found payable to the workman......"

MVR,J CMA No.112 of 2006

33. Therefore, on re-appraisal of the material in given facts and

circumstances of this case, no reason is apparent to interfere with the

order of the Commissioner. The compensation thus awarded is just and

appropriate suitable to the circumstances in which the 1st respondent was

made to place himself on account of the accident in question.

34. Thus, these substantial questions are answered holding that

the disability to consider in this context is the functional disability than the

extent of physical disability furnished by the medical evidence. The

commissioner is justified in considering the functional or working disability

at 100% and awarding compensation basing on it.

35. In the result, this Civil Miscellaneous Appeal is dismissed. No

costs. Order of the Commissioner for Workmen's Compensation cum

Assistant Commissioner for Labour, Eluru in W.C.No.43 of 2004 dated

17.03.2005 is confirmed. The Commissioner shall disburse the

compensation amount to the 1st respondent viz., the applicant before him

which remained unpaid in accordance with the provisions of the

Workmen's Compensation Act, without insisting for security.