Sri Gurusiddappa Gurupadappa ... vs Sri Mohammed Ayub
2022 Latest Caselaw 4684 Kant

          IN THE HIGH COURT OF KARNATAKA,
                     DHARWAD BENCH

      DATED THIS THE 14TH DAY OF MARCH, 2022

                           BEFORE

 THE HON'BLE MR JUSTICE N.S.SANJAY GOWDA

             M.F.A. NO. 3192 OF 2010 (WC)


BETWEEN:

1.     SRI GURUSIDDAPPA GURUPADAPPA TAVARI
       AGED ABOUT 24 YEARS, R/O HALLIKERE,
       MUNDARGI TALUK, GADAG DISTRICT.

                                                 ...APPELLANT

(BY SRI. ANURADHA DESHAPANDE, ADVOCATE)

AND:

1.     SRI MOHAMMED AYUB
       S/O ABDUL KHADAR SUNDYA, MAJOR,
       R/O ISLAMPUR ONI, EXTENSION, OLD HUBLI,
       BEHIND MOSQUE, HUBLI, DISTRICT DHARWAD.

2.     RELIANCE GENERAL INSURANCE,
       V.A.KALBURGI SQUARE, DESAI CROSS,

       DESHPANDE NAGAR, HUBLI 580029.

                                             ...RESPONDENTS

(BY SRI. NAGARAJ C KOOLLORI, ADV. FOR R2,
     R1 SERVED AND UNREPRESENTED)

     THIS MFA FILED U/SEC.30(1) OF WC ACT, 1923, AGAISNT THE
JUDGMENT    AND     ORDER    DTD:14-10-2009     PASSED    IN
WCA.NF.45/2008 ON THE FILE OF THE LABOUR OFFICER AND
COMMISSIONER     FOR   WORKMEN'S    COMPENSATION,     GADAG
DISTIRCT, GADAG, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCMENT OF COMPENSATION.
                                -2-




                                            MFA No. 3192 of 2010


                        JUDGMENT

1. This is an appeal by the employee seeking for

enhancement of compensation.

2. The fact that an accident occurred on

22.03.2008 when the claimant/appellant was driving the

truck during the course of his employment, is not in

dispute.

3. The fact that the vehicle which the appellant

was driving was insured, is also not in dispute.

     4.    The      Commissioner              for     Workmen's

Compensation     (for   short        'the   Commissioner')     has

recorded a finding that as a result of the accident, the

claimant not only sustained multiple fractures but had

suffered amputation of the right leg above the knee. The

Commissioner has proceeded to assess the disability at

60% by applying Item No.19 of Schedule I Part II of

Employees' Compensation Act, 1923 (for short 'the Act').

He has thereafter proceeded to assess the loss of earning

MFA No. 3192 of 2010

capacity as 67% and by applying the monthly wages and

multiplying it with the relevant factor 221.37, has awarded

a sum of Rs.3,55,963/-.

5. The Commissioner has assessed the monthly

income of the claimant at Rs.4,000/-.

6. Learned counsel for the claimant contended

that the claimant was a lorry driver and if the leg of a lorry

driver is amputated below the knee, the loss of earning

capacity would have to be taken as 100%. She relied

upon the decision of the Hon'ble Apex Court rendered in

the case of S.SURESH VS. ORIENTAL INSURANCE CO.,

LTD., reported in AIR 2010 SCW 437 to contend that the

percentage of loss of earning capacity as specified in Part

II of Schedule I of the Act, cannot be applied.

7. Learned counsel for the respondent-Insurance

Company on the other hand sought to rely upon the

judgment of the Supreme Court in Civil Appeal Nos.11114-

11119/2016 to contend that the finding regarding the

MFA No. 3192 of 2010

percentage of disability is purely a question of fact and

therefore, this appeal cannot be entertained.

8. As stated above, the fact that the claimant

suffered amputation below his left knee is not in dispute.

9. This appeal was admitted to consider the

following question of law:

i) Whether the Labour Officer and Commissioner for Workmen's Compensation was justified in considering the disability of the injured claimant at 67% having regard to the fact that he was a driver by avocation and his right leg was amputated above knee?

ii) Whether the Labour Officer and Commissioner for Workmen's Compensation was justified in awarding interest after 30 days from the date of award instead of 30 days from the date of accident?

10. Section 4 of the Act states the amount of

compensation to be payable to an employee in respect of

4 categories of cases. The first category is where death

results from the injury. The second category is where

permanent total disablement results from the injury. The

third category is where permanent partial disablement

MFA No. 3192 of 2010

results from the injury. The fourth category of cases is

where temporary disablement, whether total or partial

results from the injury.

11. Admittedly, this is not a case of death resulting

from injury and therefore, the first category of cases

envisaged under Section 4 would not apply. In the

remaining 3 categories found in Section 4, the statute has

used the term 'total disablement' and 'partial disablement'.

12. Partial disablement has been defined under

clause 2 (g) of the Act as follows:

"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.

MFA No. 3192 of 2010

13. As could be seen from the said definition, a

partial disablement is a disablement of a temporary nature

which reduces the earning capacity of an employee in any

employment in which he was engaged at the time of the

accident and where in case the disablement of the

permanent nature such disablement has reduced his

earning capacity in every employment which he is capable

of undertaking at that time. The crucial term to be noticed

in clause 2 (g) is the word 'that the disablement either be

a temporary or a permanent nature should result in the

loss of earning capacity.

14. Total disablement has been defined as follows:

"total disablement" means such disablement, whether of a temporary or permanent nature, as incapacitates a 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

MFA No. 3192 of 2010

against those injuries, amounts to one hundred per cent, or more."

15. As could be seen from the said definition, a

disablement, whether it is temporary or permanent, if it

results in incapacitating an employee for doing all the work

which he was capable of performing at the time of the

accident, such disablement is considered as total

disablement. Thus, if an employee suffers a disablement

which renders him incapable of performing all the work

that he was performing at the time of the accident it will

have to be construed as a total disablement.

16. The proviso to the said definition would not

apply since it relates to giving a deemed effect to certain

injuries.

17. In the instant case, since the claimant was

working as a lorry driver, the question that arise for

consideration is whether the appellant had suffered a

partial disablement or a total disablement as defined under

the Act?

MFA No. 3192 of 2010

18. Since the claimant suffered an amputation of

his right limb below the knee, he automatically became

incapacitated to do the job of a driver which he was

performing at the time of the accident. It therefore

necessarily follows that the claimant had suffered a total

disablement and not a partial disablement. If the

disability suffered by the claimant was total, the question

of applying the principles envisaged under sub clause (c)

of Section 4 i.e., application of the percentage as defined

in Part II would not at all arise.

19. It has to be stated here that if an employee

suffers disablement of such a nature which results in a

situation where he cannot perform the work that he was

performing at the time of accident, it would become a case

of total disablement, notwithstanding the fact that the

claimant can probably still employ himself suitably in other

avocations or other kinds of occupation. The intent behind

Section 2 (l) is rather clear, which is, if an employee has

acquired certain skills and during the course of

MFA No. 3192 of 2010

employment, he suffers an accident which results in a

situation where he cannot do the work that he was doing

earlier i.e., the work that in which he had acquired

necessary skills, the law contemplates that such a

disablement would be total. The law is not really

concerned as to what is the kind of work that he may be

capable of doing after the accident with his injury or

handicap.

20. The crucial question has to be decided is as to

whether the accident had resulted in disentitling him from

doing all the work that he was doing at the time of the

accident.

21. Since, obviously the claimant was a driver, by

virtue of the amputation, he could not obviously work as a

driver and this would therefore amount to a total

disablement as defined under clause 2 (l) of the Act.

22. In view of the above, I hold that the

Commissioner was not justified in considering the disability

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MFA No. 3192 of 2010

at 67% and in view of the above discussion, the claimant

would be entitled to compensation under Section 4 (b) of

the Act i.e., on the ground that he has suffered a

permanent total disablement resulting from the injury.

23. The claimant contended that he was earning a

sum of Rs.4,000/- p.m. along with batta of Rs.200/- per

day. The Commissioner taking note of the fact that the

employer had deposed that he was paying a sum of

Rs.4,000/- p.m., has applied the said income for

calculating the compensation.

24. In my view, the Commissioner has not taken

into consideration the batta that the claimant would have

received. In cases where there is no documentary

evidence to establish the actual income, the Karnataka

State Legal Services Authority has prepared a chart fixing

the notional income for motor vehicle accident victims.

For accidents of the year 2008, according to the chart, a

sum of Rs.4,250/- p.m. would be the appropriate notional

monthly income as against the sum of Rs.4,000/- p.m.

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MFA No. 3192 of 2010

determined by the Commissioner. The relevant factor,

admittedly, is 221.37. The claimant would therefore be

entitled to 60% of 4,250 = 2550 X 221.37 =

Rs.5,64,493/-.

25. The Commissioner has awarded interest at the

rate of 12% p.a. from the date of the award which is in

contravention of the law. Obviously, it has to be from the

expiry of 30 days from the date of the accident.

Therefore, the amount awarded above shall carry interest

at the rate of 12% p.a. from 21.04.2008 till the date of

payment.

26. Thus, the questions of law framed are answered

in the manner stated above.

27. In view of the above, I pass the following:

ORDER

(i) The appeal is allowed in part,

(ii) The Judgment and Award dated 14.10.2009 passed in W.C.No.45/2008, on the file of the

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MFA No. 3192 of 2010

Labour Officer and Commissioner for Workmen's Compensation, Gadag, is hereby modified. The claimant is entitled to a total compensation of Rs.5,64,493/- as against the sum of Rs.3,55,963/- awarded by the Commissioner.

(iii) The compensation of Rs.5,64,493/-

shall carry interest @ 12% p.a. from 21.04.2008 till the date of payment,

(iv) The Insurance Company/2nd respondent is directed to deposit the compensation after deducting the compensation already paid along with interest before the Commissioner within a period of 90 days from the date of receipt of certified copy of this judgment.

(Sd/-) JUDGE

Jm/-