National Insurance Company vs Pappu & Anr
2009 Latest Caselaw 4499 Del

         HIGH COURT OF DELHI AT NEW DELHI

%                          Judgment delivered on: 06.11.2009

+                   FAO 289/2004

NATIONAL INSURANCE COMPANY                .... Petitioner
             Through: Mr. Kamaldeep, Advocate

               versus

PAPPU & ANR                                        ..... Respondent

Through: Ms. Pratima Chaudhary, Advocate for Respondent No.1 CORAM:-

HON'BLE MS. JUSTICE VEENA BIRBAL

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in Digest?

VEENA BIRBAL, J

1. By way of present appeal under Section 30 of Workmen‟s

Compensation Act 1923 (hereinafter referred to as „the Act‟),

appellant has challenged order dated 15.07.2004 passed by the

Commissioner under the Workmen‟s Compensation Act, Ashok

Vihar, Delhi (hereinafter referred to as the "Commissioner") in

granting compensation to Respondent No.1-claimant in respect of

application filed by him seeking compensation for the injury caused to

him in an accident arising out of and in course of employment.

2. The case of respondent No.1, i.e., claimant before the

commissioner under the Act is that he was employed as a cleaner by

respondent No.2 on his vehicle bearing No. HR-36-6083. On

26.12.2002, respondent No.1 was on duty on the said vehicle and had

gone on a commercial trip. When the said vehicle reached near

Lakhoti village under P.S. Mainpuri, it met with an accident as a

result of which respondent No.1/claimant received serious injuries and

became unconscious at the spot. His left leg was crushed and was

taken to Civil Hospital at Etah, where his leg was operated and a steel

rod was fitted. Thereafter, he was taken to Lady Harding Medical

College and Smt. Sucheta Kriplani Hospital where minor surgery was

done on the Left leg on 31.12.2002. Despite that, there was no

recovery on 30.1.2003. Ultimately his left leg was amputated as a

result of which the petitioner became disabled to the extent of 100%

and his earning capacity was reduced to zero. A case was registered

with the P.S. Mainpuri. Respondent No.1/claimant at the time of

accident was drawing a salary of Rs. 2,833/- per month. Besides this,

Rs.50/- per day was given to him as daily allowance and he was 18

years of age at the time of accident. Respondent No.2 on coming to

know of accident had immediately informed appellant, i.e., Insurance

Company. Even otherwise, notice under Section 10 of the Act was

also served upon respondent No.1. As per him, the accident had

occurred during the course of employment. By way of his claim

petition, respondent No.1 had claimed compensation to the extent of

100% disability as per the Act.

3. Respondent No.2, i.e., employer filed the written statement

wherein he admitted that the respondent No.1 was employed by him

as a cleaner on aforesaid vehicle. He also admitted the factum of

accident and that in the said accident, respondent No.1 sustained

injuries. He also admitted the wages as are stated by the appellant

No.1. It is further stated in the written statement that the vehicle in

question was insured with the appellant and they were informed well

in time and appellant are liable to indemnify the insured.

4. Written statement was also filed by the appellant, i.e., Insurance

Company before the Commissioner under the Act wherein the factum

of vehicle in question being owned by respondent No.2/employer and

it being insured with appellant is not denied. As per appellant, claim

is exaggerated and disproportionate.

5. Parties led evidence before the Commissioner. After hearing

arguments, the Commissioner held that it was a case of leg amputation

and the respondent/claimant was disabled by 100%. Accordingly, the

commissioner held that earning capacity of respondent No.1/appellant

has been reduced to zero, as such, awarded compensation of

RS.5,43,312/-.

6. Aggrieved with the same, present appeal is filed.

7. Learned counsel for appellant has contended that in the present

case, leg of claimant i.e., respondent No.1 was amputated below knee

and the same comes under the "List of injuries" deemed to result in

"permanent partial disablement" described in part II of Schedule 1 of

the Act and percentage of loss of earning capacity stated therein for

the said injury is 50% whereas Commissioner has taken percentage of

loss of earning capacity as 100% which is totally contrary to law. It is

further contended that there is no opinion of the doctor that there was

100% loss of earning capacity as such impugned order is liable to be

set-aside.

8. On the other hand, counsel for respondent no.1 has contended

that the impugned order is legal and valid in all respects. It is

contended that leg of respondent no.1 is amputated. Appellant is

unfit to do work. The counsel referred to the case of K. Janardhan

v. United India Insurance Company Ltd., 2008 ACJ 2039, wherein

as per Schedule I under the Act, there was a loss of 50% earning

capacity to the claimant but the Hon‟ble Supreme Court had affirmed

the view taken in the matter by the court below by taking it a case of

100% disability. The above judgment also refers to the judgment of

Pratap Narain Singh Deo v. Shrinivas Sabata and Anr., 1976 ACJ

141, wherein also compensation has been awarded on the basis of loss

of 100% earning capacity.

9. I have heard the learned counsel for parties at length and

perused the record.

10. In order to appreciate the controversy, the relevant provisions

under the Act are as under:

"a. Section 2 (1) (g) of the Act defines „Partial disablement' which means that where the disablement is of a temporary nature, such disablement as reduces the earning capacity of a workman 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. b. Whereas 'Total disablement' is defined under Section 2 (1) (l) of the Act, which means such disablement, whether of a temporary or permanent nature, as incapacitates a workman 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 loss of earning capacity, as specified in the said part II against those injuries, amounts to one hundred percent or more."

11. Whereas Section 4 of the Act deals with the amount of

compensation, relevant for the case in hand is Clause (c) which is

extracted as:

"4. AMOUNT OF COMPENSATION. -

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

                (a) xxxxxx       xxxxx       xxxxxx

                (b) xxxxxx       xxxxx       xxxxxx


                (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;

xxxxx xxxxx xxxxx xxxxx

12. Part I of the Schedule I enumerates the list of injuries deemed

to result in "permanent total disablement" and the percentage of loss

of earning capacity with respect to the injury described in the list. Part

II of the Schedule I of the Act enumerates the list of injuries deemed

to result in "permanent partial disablement". Serial 20 of part II

describes the injury of amputation below knee with stump exceeding

8.89 cms but not exceeding 12.70 cms serial and Serial 21 of the same

part describes the amputation below knee with stump exceeding 12.70

cms. In both the cases the percentage of loss of earning capacity is

specified as 50 percent.

13. The Supreme Court, in the case of Pratap Narain Singh Deo

v. Shri Nivas Sabata and Anr., (supra), while construing the

expression „total disablement‟ as defined in section 2 (1) (e) of the Act

held that if injury makes the workman unfit for the work which he

was discharging prior to the accident, the disablement is total and not

partial. In that case a carpenter while doing work in course of

employment fell down and sustained injuries as a result of which his

left arm above elbow was amputated and he became unfit for the work

of carpenter and as per Schedule I of the Act, it was a case of

"Permanent Partial Disablement". In the above case, the Supreme

Court held that the disablement was total and not partial as the work

of carpentry cannot be done by one hand only.

14. In K. Janardhan vs. United India Insurance Co. Ltd., AIR

2008 SC 2384, where appellant was a tanker driver, while driving

vehicle he met with an accident as a result of which he sustained

injuries and also amputation of right leg upto the knee joint. The

Commissioner found that as the claimant had suffered amputation of

his right leg upto knee, he was said to have suffered a loss of 100% of

his earning capacity as a driver and on that basis awarded

compensation to him. An appeal was thereafter taken to High Court

of Karnataka by the Insurance Company. The High Court accepted

the plea raised in the appeal that as per Schedule to the Workmen‟s

Compensation Act, the loss of a leg on amputation amounted to 60%

reduction in the earning capacity and the doctor had opined it to 65%

disability, and as such above figure was to be accepted and

accordingly reduced the compensation. In these circumstances, the

claimant moved to the Supreme Court. The Supreme Court relying on

its decision in Pratap Narain Singh Deo v. Shri Nivas Sabata and

Anr (supra) held that appellant suffered 100% disability and

incapacity, in earning as a driver as his right leg had been amputated

from the knee and set aside the judgment of High Court and restored

that of the Commissioner.

15. A Division Bench of Gujarat High Court in Punambhai

Khodabhai Parmar v. G. Kenal Construction and Anr. (1985-I-

LLJ-98) wherein the workman was employed as driver who sustained

permanent disability of his right hand finger, right elbow and right

thigh, on evidence, observed that the injured workman has been

rendered unfit for the job, relying on the decision of the Supreme

Court in Pratap Narayan Singh Deo v. Shrinivas Sabata and Anr.

(supra) held that permanent total disablement is to be judged from the

point of view of the job which the workman was doing and if the

disablement renders him unfit to do that job, the disablement is total

and not partial.

16. A Division Bench of Karnataka High Court in Siddappa v. The

General Manager, K.S.R.T.C. and Anr, (1988) I ACC 539,

explained the scope of extent of percentage of loss of earning

capacities specified in part II of the Schedule and has pointed out that

the extent of permanent disablement specified therein should be

deemed to have been taken place in the instances specified in column

2 of the schedule. But there is no bar upon the claimant from proving

his case that he had suffered higher percentage of loss of earning

capacity.

The ratio of the aforesaid judgment was applied in National

Insurance Company Ltd. V. R. Vishnu and Anr, 1992 ACJ 590,

wherein injured workman was employed as a driver of a tourist bus

which met with an accident and his both legs were injured and finally

his left leg was amputated below knee. The Commissioner concluded

that the claimant had suffered total permanent disablement. In appeal,

the Division Bench of Karnataka High Court observed that the extent

of permanent disability suffered as specified in the schedule to the Act

is no bar for pleading and proving that actually the concerned

workman has suffered higher percentage of or total, disability.

17. A learned Judge of Orissa High Court in case of National

Insurance Company v. Narendra Samal and Anr, 1993 ACJ 1095,

wherein the injured workman was a helper and was going in the truck

from Ramgarh to Baripada, the truck dashed against a tree at road-side

and over turned whereby left leg of the workman was crushed

resulting in compound fracture, which was amputated, observed that

it was a case of total disablement and not partial as the injured

workman was not able to perform his duties as a helper in the truck.

18. In the present case, it is not disputed that because of amputation

of leg, respondent no. 1 has been incapacitated to do the duties of

cleaner. Cleaner has to do various kinds of jobs like cleaning the

vehicle, loading - unloading the goods from vehicle, changing

punctured tyre, etc. Such type of work can‟t be handled by a person

whose leg has been amputated and who is not able to walk without the

support. Medical documents including that of amputation below knee

are on record Exhibit AW 1/1 to 1/20. There is an evidence of

respondent no. 1/claimant in the form of an affidavit in the trial court

record wherein it is stated that due to injuries he has become disabled

to the extent of 100% and his earning capacity has been reduced to

zero. Even in pleadings he has set up his case to that effect. Nothing

contrary is placed on record by the appellant to rebut the same. It is a

clear case of "permanent disablement". The Commissioner has

rightly held that respondent no. 1/claimant is disabled by 100%. His

earning is reduced to 100% and awarded the compensation

accordingly. As the respondent no. 1/claimant has become

permanently disabled and it being a case of total disablement,

respondent no. 1/claimant is not debarred from claiming

compensation more than that specified in the schedule for the loss of

earning capacity, as has been held by Supreme Court in Pratap

Narain Singh Deo v. Shri Nivas Sabata & Anr. (supra), K.

Janardhan v. United India Insurance Company Ltd. (supra) and

other cases discussed above. There is no illegality in the impugned

order which calls for interference by this Court. Order of Ld.

Commissioner is upheld. Appeal stands dismissed with no order as to

costs.

VEENA BIRBAL, J.

November 6th, 2009