United India Insurance Co. Ltd., ... vs Shaik Jeelani And Another
2021 Latest Caselaw 2955 Tel

        THE HON'BLE Dr. JUSTICE G. RADHA RANI

      CIVIL MISCELLANEOUS APPEAL No.4479 of 2004

JUDGMENT:

This appeal is filed by the Insurance Company - Opposite Party

No.2 aggrieved by the Award passed by the Commissioner for

Workmen's Compensation and Assistant Commissioner of Labour,

Khammam, in W.C. Case No.27 of 2002 (N.E.), dated 30.06.2004.

Respondent No.1 is the applicant and the respondent No.2 is the

Opposite Party No.1.

2. The parties are hereinafter referred to as they were arrayed

in the WC case.

3. The case of the applicant - respondent No.1 was that he was

employed by the Opposite Party No.1 - respondent No.2 as a Driver

and worked for four years as driver on the lorry bearing No.AP 16 V

7448 and was paid Rs.4,000/- per month. On 31.12.1999 at 1.00

P.M., he drove the vehicle to the godown of Opposite Party No.1

situated in Gollagudem Basthi of Kothagudem and loaded empty

plastic bags of 25,000 in the lorry, out of which two bundles could not

be loaded as the lorry was filled in full capacity and kept those two

bundles in the cabin. The cleaner of the lorry, Mohd.Azeez Khan,

while attempting to throw the empty bundles from the cabin into the

body of the lorry, accidentally came into contact with 11 K.V. live

electric wire and sustained severe burnt injuries. The applicant tried 2 Dr.GRR,J CMA No.4479 of 2004

to rescue the cleaner but, the electric shock transmitted through the

iron body of the lorry, pulled him towards the lorry without allowing

him to be released. Due to this, the applicant sustained grievous

injuries on the left and right feet and hand fingers. The cleaner died

due to the electric shock. The applicant submitted that he lost grip of

his left foot totally and partially of right foot fingers and became

useless in driving. He claimed compensation of Rs.3,00,000/- against

the Opposite Parties No.1 and 2, who were the owner and Insurer of

the lorry, respectively.

4. The applicant examined himself as PW.1 and examined the

Doctor, who treated and issued the disability certificate, as PW.2 and

got marked Exs.A1 to A7 on his behalf. Opposite parties No.1 and 2

had not adduced any oral evidence but, Opposite Party No.1 got

marked Exs.B.1 and B2 and Opposite Party No.2 got marked Ex.R-1

- copy of policy.

5. On considering the oral and documentary evidence on

record, the Commissioner awarded an amount of Rs.3,10,748/-, more

than the amount claimed, along with interest. Aggrieved by the said

Award, the Insurance Company - Opposite Party No.2 preferred this

appeal contending that the Doctor, who issued the disability certificate

was not a qualified doctor, there was no evidence from the applicant's

side about the treatment taken by him from the date of injury on

31.12.1999 till 19.03.2003, as such, the disability certificate issued by

the doctor ought not to have been taken into consideration, the 3 Dr.GRR,J CMA No.4479 of 2004

Commissioner erroneously assessed the loss of earning capacity at

100% even though PW.2 assessed the disability at 20%, and prayed to

allow the appeal.

6. Heard the learned counsel for the appellant and the learned

counsel for the respondent No.1-claimant.

7. Learned counsel for the appellant contended that there was

no nexus between the injuries sustained by the applicant and the

accident. The disability certificate was issued by PW.2-Doctor in the

year 2003, PW.2 examined the applicant on the date of accident on

31.12.1999, but had not stated about the amputation of toes and no

other doctor was examined. The Commissioner wrongly assessed the

loss of earning capacity at 100% when there was no evidence that the

applicant could not do any other work. He further submitted that the

applicant was permitted to withdraw Rs.2,00,000/- during the

pendency of the appeal, and hence, the award may be limited to the

said extent and prayed to allow the appeal.

8. Sri R. Nageswara Rao, learned counsel representing Sri

P.V. Mahesh, learned counsel on record for respondent No.1-claimant

submitted that the injury certificate-Ex.A5 was issued by PW.2

himself, which would disclose amputation of toes. The evidence of

PW.2 would disclose that the applicant could not operate clutch or

brakes and he lost grip of both feet, the applicant was removed from

service, as such, he sustained 100% functional disability due to loss of 4 Dr.GRR,J CMA No.4479 of 2004

employment. The assessment made by the Commissioner was proper

and would need no interference and prayed to dismiss the appeal.

9. On perusal of the record, there was no dispute about the

employment of the applicant with Opposite Party No.1 and with

regard to wages accepted by the Commissioner as Rs.2,653/- per

month as per the G.O. under Minimum Wages Act, 1948, the age of

the claimant and the factor taken. The only dispute was with regard to

the assessment of the disability by the Commissioner as 100% when

the doctor assessed the disability at 20%. The applicant was a driver

and he sustained burnt injuries during the course of his employment

with the Opposite Party No.1. As per the evidence of PW.2, the

applicant could not drive the vehicle because of the injuries which

resulted in lack of grip of both feet. The doctor assessed the disability

as 20% basing on Schedule-I Part-II at serial No.24 of the Employees

Compensation Act, 1923 as the 3rd and 4th toes of left foot of the

applicant were amputated completely and right foot 5 toes were

amputated partially and resulted in permanent partial disablement.

10. The learned counsel for the applicant relied upon the

judgments of the Hon'ble Apex Court in Jakir Hussein v. Sabir &

Others (Civil Appeal No.2006 of 2015) and Sri Chanappa Nagappa

Muchalagoda v. Divisional Manager, New India Insurance

Company Limited (Civil Appeal No.9306 of 2019). The Hon'ble

Apex Court in both the above cases, relied upon its earlier judgment 5 Dr.GRR,J CMA No.4479 of 2004

in Raj Kumar v. Ajay Kumar and Others [(2011) 1 SCC 343],

wherein it was held in paragraph 10 of the said judgment as follows:

"Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.

For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of `loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may."

11. By referring to various other judgments, particularly,

pertaining to the workmen working as drivers who met with accidents

and were unable to earn their living as drivers due to amputation of 6 Dr.GRR,J CMA No.4479 of 2004

legs, it was held that the functional disability has to be assessed as

100%.

12. The applicant lost his ability to work as a driver, lost his

employment due to lack of grip of both feet as per the evidence of the

doctor - PW.2. PW.2 is a Deputy Civil Surgeon working in the Area

Hospital Kothagudem, Khammam District. He treated the applicant

in the Government Area Hospital, Kothagudem and issued disability

certificate under Ex.A6 and Medical certificate under Ex.A5. Ex.A5

would disclose that the applicant sustained burnt injuries to both feet

due to the electric shock and sustained amputation of 3rd and 4th toes

of left foot and partial amputation of five toes of right foot. PW.2 -

doctor was the competent person to issue the disability certificate as

per the definition under Section 2(i) of the Workmen's Compensation

Act, 1923.

13. Considering the evidence of PWs.1 and 2 and the exhibits

marked as Exs.A5 and A6, the loss of earning capacity is rightly taken

as 100% by the Commissioner. The contention of the learned counsel

for the appellant - Insurance company that the applicant can take up

any other alternative employment, is not justified as what is material

to be considered is whether the applicant is capable of performing the

work which he was doing at the time of accident but not whether he

has capacity enough to perform any other work. Hence, I do not find

any merit in the contention of the learned counsel for the appellant -

                                     7                            Dr.GRR,J
                                                        CMA No.4479 of 2004

Insurance company that the assessment was not made correctly. As

such, the appeal is liable to be dismissed.

14. Accordingly, the appeal is dismissed, confirming the

award, dated 30.06.2004, passed in W.C. Case No.27 of 2002 (N.E.),

by the Commissioner for Workmen's Compensation and Assistant

Commissioner of Labour, Khammam. The applicant is permitted to

withdraw the balance amount deposited before the Court below. No

order as to costs.

Miscellaneous Petitions pending, if any, shall stand closed.

_____________________ Dr. G. RADHA RANI, J Date:25-10-2021

KTL