B. Amit Sthalekar ORDER
B. Amit Sthalekar, J.
1. Heard Sri. Prabhakar Tandon, learned counsel for the appellant and Sri. S.K. Mehrotra, learned counsel for the respondent-Insurance Company.
2. This appeal has been filed challenging the award of the Commissioner, Workmen's Compensation Act, Kanpur Region Kanpur dated 20.2.2002 in Claims Compensation Petition no. 27 of 2001 (Kailash Chandra Gupta Vs. Vinod Kumar Bhatia and another).
3. In this appeal, question no. D raises substantial question of law, which reads as under:-
"(D) Whether the appellant is entitled his claim in accordance with the finding not recorded that the injured person has loss his earning capacity upto the extent of 100% because he is no more capable of doing his job which he was performing upto the date of accident?"
4. Briefly stated the facts of the case are that on the night of 8.12.2000 at about 9'o clock, the appellant was driving truck no. U.P. 077/A-0967 belonging to the Opposite party no. 1-Vinod Kumar Bhatia and met with an accident. During the accident, the vehicle caught fire and the appellant was seriously injured and was taken by the cleaner of the vehicle to the Primary Health Centre where he was admitted and from there he was taken to the SLR Hospital, Kanpur where he was under treatment for three to four days and when there was no improvement he was admitted to the D.S. Nursing Home where his left arm below the elbow was amputated. An FIR was lodged by the cleaner-Joginder Singh. The case of the appellant was that he was being paid a salary of Rs. 2100/- per month plus Rs. 600 per day towards food. His case is that the vehicle was insured with M/s. Oriental Insurance Company Limited which was valid on the date of the accident and that his driving license was also valid. His contention was also that though he recovered from his injuries but he was not taken back in service. The case was contested before the Workmen's Claim Compensation Tribunal and the Commissioner, Workmen's Compensation taking the appellant's age to be 35 years and his salary to be Rs. 1500/- per month calculated the compensation at Rs. 197.60x800 and computing the loss of employment etc. to be 55% awarded him Rs. 97544.70/- with cost of Rs. 2000/-.
5. The contention of the appellant is that the loss of employment suffered by him should have been treated to be a 100% and not 55% since he was the Driver of the truck and by losing his one arm below the elbow he had suffered a permanent disability.
6. In rebuttal, Sri. S.K. Mehrotra, learned counsel for the respondent no. 2-Oriental Insurance Company relied upon a judgment of the Supreme Court reported in MANU/SC/0899/2009 : 2009 (3) T.A.C. 598 (S.C.) Oriental Insurance Co. Ltd. Vs. Mohd. Nasir and Another in which the Supreme Court held that the High Court was not correct in determining the loss of income at 100% since there was nothing on record to show that the respondents therein had suffered 100% loss of earning capacity. Paragraph 16 and 17 of the judgment is extracted below:-
"16. In determining the amount of compensation, several factors are required to be taken into consideration having regard to the Note. Functional disability, thus, has a direct relationship with the loss of limb.
Mohd. Nasir was a driver. A driver of a vehicle must be able to make use of both his feet. It was the case of the claimant that he would not be in a position to drive the vehicle and furthermore would not be able to do any other work. He was incapable of taking load on his body. It, however, appears that in his cross-examination, he categorically stated that only Chief Medical Officer had checked him in his office. No disability certificate had been granted. He admitted that he had not suffered any permanent disability. He, even according to the Chief Medical Officer who had not been examined, suffered only 15% disability. The Tribunal has arrived at the following findings:
"On page 16 original of disability certificate the prescription of medicine X-Ray report of Sarvodaya and of Mohan X-Rays have been produced which reveals the fracture of right leg. CMO certificate O/M 9/2003 dated 21.3.2005 has also been produced which is alleged to be false by insurance Co. I have perused them carefully which bears signature of Deputy CMO officer of disability Board, Moradabad had it shown that the applicant had appeared before them for medical check up and whose examination was done by senior orthopedics surgeon Dr. R.K. Singh on the basis of recommendation of Dr. Bansal operation was done on 2.10.2004 the applicant walk with the help of the support and is not competent to drive the heavy motor vehicle the said certificate was issued with recommendation that after six months his condition is to be reviewed.
That document was filed on 29.3.2005. Insurance company has stated the doctor who has issued disability certificate has not been produced in the court. But looking into the aftermath situation the plea of insurance company that the said certificate is forged and the same has not been issued by any MBBS doctor, carries no force."
17. The learned Tribunal had held that there has been a 15% disability but then there was nothing to show that he suffered 100% loss of earning capacity. The Commissioner has applied the 197-06 as the relevant factor, his age being 35. He, therefore, proceeded on the basis that it was a case of permanent total disablement. However, his income was taken to be at Rs. 1,920/- per month. There is nothing on record to show that the qualified medical practitioner opined that there was a permanent and complete loss of use of his right leg or that he became totally unfit to work as a driver. In that situation, the High Court, in our opinion, was not correct in determining the loss of income at 100%.
In Ramprasad Balmiki v. Anil Kumar Jain & Ors. [MANU/SC/8096/2008 : (2008) 9 SCC 492], wherein upon referring to the evidence of the Doctor who did not say that any permanent disability had been caused, this Court held:
"Be that as it may, the High Court, in our opinion, correctly proceeded on the assumption that the extent of permanent disability suffered by the appellant is only 40% and not 100%."
We, therefore, are of the opinion that the extent of disability should have been determined at 15% and not 100%. The appeal is allowed to the aforementioned extent."
7. Reference has also been made to the judgment of the Supreme Court in the case of Pal Raj Vs. Divisional Controller, NEKRTC, 2010 (4) T.A.C. 79 (S.C.) wherein also a claim for treating loss of income as 100% was rejected. Paragraphs 3, 4, 6, 11, 13 and 14 of the judgment read as under:-
"3. The Appellant was employed as a Bus Driver in the Karnataka State Road Transport Corporation. On 10th October, 1998, the vehicle being driven by the Appellant, met with an accident in which he sustained grievous injuries. The Medical Officer who examined the Appellant came to the conclusion that the Appellant had suffered 65% of total body disability and 20% of functional disability. The Commissioner, Workmen's Compensation, however, took 85% as functional disability for quantifying the compensation payable to the Appellant, who was admittedly drawing a salary of Rs. 15,000/- per month on the date of the accident.
4. It was also admitted that on account of the injuries suffered by him, the Appellant was no longer able to drive a vehicle and the Corporation accordingly appointed him as a Peon in the Corporation where he is drawing the same salary. Taking the above percentage of disability, both permanent and functional, the Commissioner made an Award granting compensation amounting to Rs. 1,75,970/-, together with interest @12% per annum from 10.11.1998 till the date of deposit, to the Appellant.
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6. On behalf of the Appellant it was contended that the doctors had certified that the Appellant was 100% disabled as far as his functioning as a Driver was concerned and that his total disability had been found to be 65% while his functional disability was assessed at 20%. Taking the two together the Commissioner, Workmen's Compensation had found the Appellant to have acquired 85% disability that entitled him to a sum of Rs. 1,75,970/- in accordance with Schedule IV of the Workmen's Compensation Act, 1923, by taking his monthly income as Rs. 2,000/- in view of Explanation 2 to Section 4 of the above Act and multiplying it with the multiplier of 172.52.
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11. In the Appellant's case, by virtue of the injuries suffered by him, his disablement as far as driving a vehicle is concerned is 100%, but that is not the measure of loss of his earning capacity. The Commissioner, Workmen's Compensation, seems to have confused the issue by combining both functional disability and permanent disability in arriving at the figure of 85% by way of loss of earning capacity and has, therefore, arrived at a sum of Rs. 1,75,970/- towards compensation. The High Court, on the other hand, realizing the mistake committed by the Commissioner, assessed the loss of earning capacity as 20% instead of 85% and reduced the compensation payable from Rs. 1,75,970/- to Rs. 41,404.80p. and awarded interest on the compensation amount only after 30 days of passing of the Award.
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13. The aforesaid provision would indicate that where a workman suffers injury which is not specified in Schedule I to the Act, compensation is to be assessed on such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity, permanently caused by the injury as assessed by a qualified medical practitioner. Since in the instant case, the nature of injury suffered by the Appellant is not specified in Schedule I, the compensation has necessarily to be assessed on the basis of the loss of earning capacity caused by the injury which could amount to 100% disablement in a given case. In the instant case, however, although the Appellant has lost the use of his legs for the purpose of driving a vehicle, which could be said to be total disablement so far as driving of a vehicle is concerned, he is in a position to earn a living other than by functioning as a driver, which, in fact, he is currently doing, having been posted as a Peon by the Respondent.
14. Accordingly, apart from the fact that the Commissioner, Workmen's Compensation, had confused the concept of functional disablement with permanent disablement in arriving at the figure of 85% loss of earning capacity, we also have to take into consideration the fact that the injury suffered by the Appellant did not disable him permanently from earning his living other than as a driver. We, therefore, are of the view that the percentage of functional disablement has to be modified, since the Appellant is permanently disabled as far as earning a livelihood as a driver is concerned.
8. Reliance has also been placed on a Division Bench judgment of the Karnataka High Court reported in MANU/KA/0162/2004 : II (205) ACC 858 (DB), Vittal Poojary Vs. S.J. Yatish & Another and also a Full Bench decision of the same Court reported in MANU/KA/0692/2003 : 2004 ACJ 333, Shivalinga Shivanagowda Patil and another Vs. Erappa Basappa Bhavihala as well as on a judgment of the Andhra Pradesh High Court reported in MANU/AP/0141/2013 : 2013 LawSuit (AP) 148, N. Shree Ramulu and others Vs. B. Lakshmi Narayana (Died) and Others.
9. No doubt in the judgments referred to by the learned counsel for the respondent, thrust has been on the loss of earning capacity and in that context the Supreme Court has held that the loss of earning capacity could not taken to be 100% if the injured employee was given an alternative employment. In the present case, what I find is that the appellant (injured employee) was discharged from service which fact has also been noted by the Claims Commissioner referring to the statement of the truck owner that because the left hand of the driver had been amputated, there was no further requirement of his services. That being so, in my opinion, on these facts the appellant had completely lost his job since the owner of the vehicle himself declared that there was no further requirement of his services as a result of the injuries suffered by him and that his services had in fact been dispensed with. Therefore, in the case of the present appellant there was no question of him being adjusted against an alternative employment. The learned counsel for the appellant has relied upon a judgment of the Supreme Court in MANU/SC/1018/2010 : 2011 (10) SCC 343, Raj Kumar Vs. Ajay Kumar & Another wherein the Supreme Court while illustrating various claims held that 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. Paragraph 10 of the judgment reads as under:-
"10. 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."
10. In my opinion, the judgment of the Supreme Court in the case of Raj Kumar (supra) and the observations made in paragraph 10 thereof would be squarely applicable to the facts of the present case inasmuch as in the present case the appellant has not only suffered amputation of his left hand but his services as driver have been dispensed with and the loss of employment is complete, therefore, in the facts of the present case, the loss of earning capacity of the appellant must be determined at 100%.
11. For reasons aforesaid, the impugned award dated 20.2.2000 is quashed.
12. The appeal is allowed.
13. The matter is remitted to the Commissioner, Workmen's Compensation Act, Kanpur to redetermine the compensation payable to the appellant in the light of the observations made hereinabove and pass appropriate order within a period of two months from the date of receipt of a certified copy of this order.
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