MFA (WCC) No.40 of 2011

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE B.KEMAL PASHA TUESDAY, THE 30TH DAY OF JULY 2013/8TH SRAVANA, 1935 M. F. A. (WCC). No. 40 of 2011 -------------------------------------------- (AGAINST THE ORDER IN WCC.NO.242/2005 DATED 13.09.2010 ON THE FILE OF THE COMMISSIONER FOR WORKMEN'S COMPENSATION, PALAKKAD). ................................... APPELLANT(S)/RESPONDENT NO.2: -------------------------------------------------- M/S.NEW INDIA ASSURANCE COMPANY LTD., BRANCH OFFICE, M.A.LANE, T.B. ROAD PALAKKAD, REP.BY ITS DEPUTY MANAGER. BY ADVS.SRI.KKM.SHERIF SRI.A.A.ZIYAD RAHMAN RESPONDENT(S)/APPLICANT AND OPPOSITE PARTIES: ------------------------------------------------------------------------------ 1. SRI.SATHEESH,S/O.KRISHNAN, THONIPARAMBU HOUSE, PUTHIYANKAM POST, TRIPPALUR ALATHUR TALUK, PALAKKAD DISTRICT. 685 051. 2. VIJAYAN,S/O.ANDIYAPPU, THONIYAPARAMBU HOUSE, PUTHIYANKAM PO, TRIPPALUR ALATHUR TALUK, PALAKKAD DISTRICT.685 051. R1 BY ADV. SRI.A.R.GANGADAS THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 30-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K. M. JOSEPH & B. KEMAL PASHA, JJ.** ## **----------------------------------------------------M. F. A. (WCC) NO.40 OF 2011 -----------------------------------------------------** ## **Dated this the 30th July, 2013** ## **JUDGMENT** ## **K. M. Joseph, J.** Appellant is the second opposite party/insurer in a proceeding under Section 22 of the Workmen's Compensation Act, 1923 (renamed as the Employees' Compensation Act and hereinafter referred to as the Act). First respondent herein was the claimant (hereinafter referred to as the claimant). The claimant laid the claim alleging an employment accident and he contended that he suffered the following injuries: - “1) Head injury - Fracture base of skull. 2) Left eye lost. - 3) Fracture of both bones left hand. - 4) Lacerated wound 1x1/2 x ½ cm. Over the forehead above left eye brow. - 5) Lacerated wound 1x1/2x1/2 cm. Over the chin. - 6) Laceration over left knee - patient restless. - 7) Pain and tenderness over left forearm. 8) Linear injury abdomen lower. - 9) Abrasions and contusions all over the body.” _**2**_ _**MFA.(WCC).NO.40/2011**_ The Commissioner by the impugned order found his wages as ₹. 4,000/= per month. Placing reliance on Ext.X2 Medical Report, his loss of earning capacity was taken as 100% and accordingly ₹. 5,20,584/= was ordered to be paid as compensation with simple interest at 12% from the date of the accident (24.01.2005). It is feeling aggrieved by the same, the appellant is before us. 2. We heard the learned counsel for the appellant and the learned counsel for the claimant. 3. Learned counsel for the appellant would submit that the finding and the order passed by the Commissioner is insupportable. He would contend that this is a case where the injury suffered by the claimant which is the basis for the Medical Board's Report and the order of the Commissioner, is that the claimant was having visual loss of left eye due to optic atrophy. The Report further states that his right eye is normal. His percentage of disability is 30%. The Report further recites that the loss of earning capacity as _**MFA.(WCC).NO.40/2011**_ _**3**_ a driver is 100% due to the accident. He would contend that the Commissioner was not justified in taking the loss of earning capacity as 100%. According to him, this is against the scheme of the Act. He would elaborate by pointing out that the definition of the word “total disablement” in Section 2(l) of the Act does not support his finding. Rule 2(l) of the Act reads as follows: _“_ _**2. Definitions.-** (1) In this Act, unless there is anything repugnant in the subject or context,-_ _(l) “total disablement” means such disablement, whether of a temporary or permanent nature, as incapacitates an 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 against those injuries,_ _**MFA.(WCC).NO.40/2011**_ _**4**_ _amounts to one hundred per cent, or more.”_ According to him, unless there is disablement which is of a permanent nature which incapacitates an employee for all work he was capable of performing at the time of accident, he cannot rest the case within the four corners of Section 4(1)(b) of the Act. According to him, even Ext.X2 medical report only states that the claimant has suffered loss of earning capacity as a driver to the tune of 100% and it does not show that the claimant was incapacitated to do all work which he was capable of performing at the time of accident. According to him, the Commissioner ought to have considered the fact that he was capable of doing other work. He drew our attention to the following case law: - (i) _**Pratap Narain Singh Deo**_ v. _**Srinivas Sabata And Another**_ ((1976) 1 SCC 289). - v. - (ii) _**Vanajakshan Joseph**_ (2003 (2) KLT 462 FB). - (iii) _**Janardhan**_ v. _**United India Insurance Co. Ltd.**_ (2008 (2) _**MFA.(WCC).NO.40/2011**_ _**5**_ KLT 995 (SC)). ## (iv) _**Alagadurai**_ v. _**Immanuel**_ (2009 (2) KLT 368). (v) _**National Insurance Co. Ltd.**_ v. _**Jose**_ (2011 (3) KLT 781). - (vi) _**Mohan Soni**_ v. _**Ram Avtar Tomar and Others**_ (2012 KHC 4012). (vii) _**National Insurance Co. Ltd.**_ v. _**Jose**_ (2011 (3) KLT 781). - (ix) _**United India Insurance Co. Ltd.**_ v. _**Abdul Razak**_ (2012 (1) KLT 818). He would contend that actually this is a case which would fall within the boundaries of Section 2(1)(g) of the Act which defines partial disablement. It reads as follows: _“_ _**2. Definitions:-** (1) In this Act, unless there is anything repugnant in the subject or context, -_ _(g) “partial disablement” means, where the disablement is of a temporary nature, such disablement as reduces the earning capacity of an employee in any employment in which he was engaged at the time of the accident resulting in the disablement,_ _**6**_ _**MFA.(WCC).NO.40/2011**_ _and, where the disablement is of a permanent nature such disablement as reduces his earning capacity in which he was every employment 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.”_ He points out that under the Act, partial disablement under Section 2(1)(g) when it is of a permanent nature contemplates his loss of earning capacity in every employment he was capable of doing. He would submit that it may be true that the claimant may not have been in a position to pursue his former calling, namely as a driver. But, it should not be the end of the enquiry by the Commissioner and this Court. He would contend that this is only a case of loss of earning capacity and not incapacitation. 4. Per contra, the learned counsel for the claimant would support the order. 5. As far as the decision in v. _**Pratap Narain Singh Deo**_ _**7**_ _**MFA.(WCC).NO.40/2011**_ _**Srinivas Sabata And Another**_ ((1976) 1 SCC 289) is concerned, that was a case of a carpenter who suffered injuries resulting in the amputation of his left arm from the elbow. The Apex Court had before it the finding by the Commissioner that by the loss of the left hand, he was evidently been rendered unfit for the work of carpenter. The Court concluded that it was a case of total disablement. The said dictum came to be considered by the Full Bench of this Court in _**Vanajakshan**_ v. _**Joseph**_ (2003 (2) KLT 462). Therein, the Full Bench dealt with a case of loss of eye sight of one eye. The medical evidence was to the effect that the claimant had suffered permanent partial disability of 45%. The Court considered the matter at length and held as follows, with reference to the v. Judgment of the Apex Court in _**Pratap Narain Singh Deo Shrinivas Sabata**_ (AIR 1976 SC 222): _“18. Mr. Muhammed has also drawn our attention to the decision of Their Lordships of the_ _**MFA.(WCC).NO.40/2011**_ _**8**_ _Supreme Court in Pratap Narain Singh Deo v. Shrinivas Sabata (AIR 1976 SC 222). In this case, a carpenter had lost his hand. The Commissioner had found that “by loss of his left hand above the elbow he has evidently been rendered unfit for the work of carpenter as the work of carpentry cannot be done by one hand only.” Their Lordships, while hearing an appeal filed by the employer, had taken the view that the finding recorded by the Commissioner was “reasonable and correct”. The judgment is not an authority for the proposition that the compensation has to be determined only with reference to the work that was being done by the workman and not the loss in earning capacity. It may also be mentioned that amputation of hand below the shoulder falls under Entry 2 of Part II, Schedule I. This entry raises a presumption that the loss of earning capacity shall be 80%. However, in case of loss of only one eye, the loss of earning capacity fixed under the Schedule is only 40%. Thus, the appellant cannot claim parity with the case of amputation of hand.”_ _**9**_ _**MFA.(WCC).NO.40/2011**_ We may also notice paragraph 19 which reads as follows: _“19. In fact, as pointed out by Mr. Shyam Kumar, learned counsel for the respondent, the decision in Deo's case has been considered by Their Lordships of the Supreme Court in Amar Nath Singh v. Continental Constructions Ltd. (2001) 10 Supreme Court Cases 760. While dealing with the judgment it was observed that in a case where “there is a loss of one eye and the earning capacity of the appellant has been reduced from what he was capable of earning at the time of the accident, as a result of disablement” the claim for total disablement could not be sustained. The decision of the High Court in that behalf was sustained.”_ 6. The next decision which we must notice, is the Judgment of the Apex Court in _**Janardhan**_ v. _**United India Insurance Co. Ltd.**_ (2008 (2) KLT 995). That again, we notice, was a case of amputation of right leg upto knee joint. Therein, the Apex Court relied on the decision in _**Pratap Narain Singh Deo**_ v. _**Shrinivas**_ _**MFA.(WCC).NO.40/2011**_ _**10**_ _**Sabata**_ & _Another_ ((1976) 1 SCC 289) and took the view that the claimant had suffered 100% disability and incapacitating him from earning as a tanker driver as his right leg was amputated from the knee. 7. In _**Alagadurai**_ v. _**Immanuel**_ (2009 (2) KLT 368), a Bench of this Court has referred to the provisions and considered the scope of compensation for total disablement and held as follows: _“S.4 deals with four different specific segments - (a), (b), © and (d). S.4(a) of the W.C. Act deals with instances where the injury results in death. In this case, we are not concerned with that. Cl.(b) deals with injuries which result in permanent total disablement. Cl.(c) deals with injuries which result in permanent partial disablement. Cl.(d) deals with the injuries which result in total or partial temporary disablement. The scheme and the methodology of the statute clearly show that if an injury comes in cl.(b), it is not necessary at all to go to cl.(c). If the body of S.2(1)(l)_ _**MFA.(WCC).NO.40/2011**_ _**11**_ _is answered by the nature of disablement, such a case has to be dealt with under cl.(b) and not cl.(c) at all. Only if no permanent total disablement total disablement - either actual or deemed, has resulted and only permanent partial disablement has resulted need one go to cl.(c) at all. Only then it need be considered whether cl.(l) or cl.(ii) of S.4(1) would apply. In this view of the matter, we are convinced that in a case where injuries do not result in deemed total disablement under the proviso to S.2(1)(l) the functionaries are obliged to consider whether such injury, whether scheduled in Part II of Schedule I or not, has resulted in total disablement. If it has resulted in total disablement, we repeat that the body of S.2(1) (i) would apply, consequently only S.4(1)(b) of the W.C. Act and not S.4(1)(c) will apply.”_ Still further, we notice the following observations to be found at pages 370 and 371: _“The question to be considered under S.2(1)(l) is not what work the employee was actually doing at_ _**MFA.(WCC).NO.40/2011**_ _**12**_ _the time of the accident; but the question to be decided is what work “he was capable of performing at the time of the accident.” The question is not what a person can possibly do; but the question is whether he is capable of doing any other work at the time of accident. There is a difference between the two concepts. Merely because a person may be able to (and can possibly) perform certain other functions, it cannot lightly be assumed that he is capable of performing such work. Capability of performance, as stated earlier, must certainly bring with it the elements of competence, qualification, ability, expertise, experience and prior practice. It would be irrational to assume that because a driver who has lost his leg can perhaps operate a computer or work as a shop keeper (for which work he has no competence, qualification or experience) he will not be entitled to claim that he is totally disabled under S.2(1)(l) of the W.C. Act. We repeat that the question is whether despite his disability he is able to do any work which he was “capable of performing” at the time of the_ _**MFA.(WCC).NO.40/2011**_ _**13**_ _accident. To assign a meaning to the expression “capable of performing” to include all work which a can his person (or possibly) perform ignoring qualification, competence and experience would be negation of the very purpose and scheme of S.2(1)(l) of the W.C. Act. The fact that an unfortunate victim of the accident may or can acquire different capabilities in future is no reason to assume that he has such capabilities on the date of the accident and hold consequently that he has no permanent disablement under S.2(1)(l) of the W.C. Act.”_ 8. No doubt, a Bench of this Court had occasion to consider the concepts underlying S.4(1)(a) to (d) in the Judgment in _**National Insurance Co. Ltd.**_ v. _**Jose**_ (2011 (3) KLT 781). Then, there is the Judgment of the Apex Court in _**Mohan Soni**_ v. _**Ram Avtar Tomar and Others**_ (2012 KHC 4012). Therein, again, we may immediately notice that the claimant was a cart-puller and his left leg was amputated below the knee. The Apex Court took note _**MFA.(WCC).NO.40/2011 14**_ of the age of the claimant which was 55 years at the time of the accident, and noted that at that age, it was impossible for the claimant to do any job. We may notice that the Court referred to the v. Judgment of the Apex Court in _**Raj Kumar Ajay Kumar and Another**_ ((2011) 1 SCC 343) which, no doubt, arose under the Motor Vehicles Act and therein, the Apex Court made the following observations: _“10. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage f economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, the percentage of loss of earning capacity, arising from a permanent disability will be different from the_ _**MFA.(WCC).NO.40/2011**_ _**15**_ _percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation._ _11. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the tribunal may find that the percentage of loss of_ _**16**_ _**MFA.(WCC).NO.40/2011**_ _earning capacity as a result of the permanent disability is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation (See for example, the decisions of this Court in Arvind Kumar Mishra v. New India Assurance Co. Ltd. (2010) 10 SCC 254 and Yadava Kumar v. National Insurance Co. Ltd. (2010) 10 SCC 341)._ _13. 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 disability (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_ _**MFA.(WCC).NO.40/2011**_ _**17**_ _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.”_ 9. Let us now look at the facts which are not in dispute. The claimant was 25 years as on the date of the accident. He was working as a driver. He lost vision of one eye. He is incapacitated from carrying on the vocation of driving. It would not be a case of reduction of loss of earning capacity qua, the said calling. In fact, he cannot earn anything at all on account of the disability. But, it may be true that as far as permanent partial disability is concerned, unlike temporary partial disability, the reduction in earning capacity must not only be qua the particular vocation which he was _**MFA.(WCC).NO.40/2011 18**_ following at the time of the accident, but every employment he is capable of undertaking. As far as total disablement, that is the concept embedded in Section 2(1)(l) is concerned, there must be incapacitation. It may be temporary or it may be permanent. But, it must be incapacitation for all work, the person was capable of performing at the time of the accident and not the particular calling that he was following. 10. We may notice that from the decided cases which we have seen above that broadly they fall into two categories. The decisions of the Apex Court which we have referred to were all cases of amputation. On the other hand, the decision of the Full Bench in v. _**Vanajakshan Joseph**_ (2003 (2) KLT 462) was a case which relates to loss of vision. In fact, we notice that the Full Bench has dealt with the argument based on the principle laid down in the _**Pratap Narain Singh Deo**_ v. _**Srinivas Sabata And Another**_ ((1976) _**MFA.(WCC).NO.40/2011 19**_ 1 SCC 289) (supra). The Court has declared that the Apex Court has not laid down the proposition that the compensation is to be determined only with reference to the work that was being done by the workman, and not his loss of earning capacity. We are not unmindful also of the subsequent Judgment of the Apex Court in _**Amar Nath Singh**_ v. _**Continental Constructions Ltd.**_ ((2001 (10) SCC 760) which also dealt with a case of loss of one eye and where the Court took the view that it would be a case of the earning capacity being reduced from what he was capable of earning at the time of accident and the claim for total disablement was repelled. 11. In this case, the Medical Report addressed the issue of loss of earning capacity only with reference to the impact of the injury, in relation to the employment of the claimant as driver. Certainly, this is not the way it should have been done. In such matters, the Medical Board is expected to report the loss of earning capacity keeping in view the concepts which are relevant to the act, _**MFA.(WCC).NO.40/2011 20**_ namely if it is a case of total disablement, the medical practitioner/medical practitioners must bear in mind the concept of incapacitation, qua all the work he was capable of doing at the time of accident. This is absolutely indispensable for grant of compensation under Section 4(1)(b) relatable to Section 2(1)(l) in so far as it provides for total permanent disability. 12. We have already noticed the injuries which have been referred to in the order. Learned counsel for the claimant emphasises that apart from the loss of vision in one eye, the claimant suffered fracture of his left hand and even now he feels the impact of the same. We cannot also be totally unmindful of the observations of the Division Bench in _**Alagadurai**_ v. _**Immanuel**_ (2009 (2) KLT 368) (supra). Having regard to all circumstances, rather than remanding the matter, we think that we can fix the loss of earning capacity at 80% in place of 100%. So calculated, the compensation payable by the _**MFA.(WCC).NO.40/2011**_ _**21**_ appellant would be ₹.4,16,468/=. The appellant will be liable to pay the said amount in place of the amount ordered by the Commissioner. The appellant will be liable to pay interest on the aforesaid amount. The Appeal will stand allowed as above. The appellant will be entitled to refund of any amount deposited in excess of what we have ordered the appellant is liable to pay. Sd/= **K. M. JOSEPH JUDGE** **Sd/= B. KEMAL PASHA JUDGE** **kbk.** _**//True Copy//**_