New India Assurance Company Limited v Santosh K.A.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 8TH MARCH 2011 / 17TH PHALGUNA 1932 MFA.No. 60 of 2006 -------------------------WCC.40/2002 of W.C.C.,ERNAKULAM .................... APPELLANT/2ND OPPOSITE PARTY: THE NEW INDIA ASSURANCE COMPANY LIMITED, NOW REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, M.G. ROAD, KOCHI-11. BY SR.ADV. SRI.MATHEWS JACOB SRI.P.JACOB MATHEW RESPONDENT/PETITIONER: SANTHOSH K.A., S/O. ARAVINDAKSHAN, KOTTARATHIL HOUSE, KUNDANNOOR, MARAD P.O. (NO RELIEFS ARE CLAIMED AGAINST THE 1ST OPP.PARTY IN THE ABOVE CASE AND HENCE HE IS NOT MADE PARTY IN THIS APPEAL). BY ADV. SRI.JOSWIN THAMBI KUNNATH SRI.T.K.KOSHY THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 08/04/2010, THE COURT ON 08/03/2011 DELIVERED THE FOLLOWING: ## A.K. Basheer & P.Q. Barkath Ali, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - MFA.No. 60 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8[th] day of March, 2011 Judgment ## Basheer, J: The short question that arises for consideration in this appeal is whether loss of vision in one eye of the driver of a transport vehicle can be reckoned as permanent total disablement as contemplated in Part I Schedule I of the Workmens' Compensation Act, 1923. 2. Appellant-Insurance Company had admittedly issued a policy cover in respect of the goods vehicle in which the respondent herein was employed as a driver. The vehicle in question had been converted as a tanker to carry inflammable and other hazardous materials. On the ill fated day, the respondent was engaged as the driver in the tanker lorry by its owner V.B.Gopinathan who was arrayed as opposite party No.1 in the claim petition before the Commissioner for Workmens' Compensation, Ernakulam. Sulphuric acid was brought in the tanker lorry to be MFA.60/2006. : : unloaded at Fertilisers and Chemicals Travancore Ltd. (FACT). While the sulphuric acid was being unloaded, a few drops of the acid fell into the eyes of the respondent/ claimant, resulting in severe burn injuries. It is on record that ultimately respondent lost vision in his left eye. Respondent filed the claim petition before the Commissioner seeking compensation from the owner and insurer of the vehicle , as provided under the Act. 3. The claim was resisted by the appellant contending, inter alia, that there was no employer-employee relationship between the claimant and the insured/owner of the vehicle and that the injury was not caused in the course of employment. However it was admitted by the appellantInsurance Company that the vehicle was covered under a valid insurance policy at the time of the accident. 4. The claimant was examined before the Commissioner as AW.1 and the owner of the vehicle MFA.60/2006. : : (opposite party No.1) was examined as DW.1. Exts.A1 to A4 were marked on the side of the claimant and Exts.D1 to D3 on the side of the opposite party. 5. The Commissioner held that the mishap occurred in the course of employment of the claimant as a driver. While considering the quantum of compensation payable to the claimant the Commissioner noticed that the claimant being a driver by profession he had lost sight in his left eye totally and that thereby he had become disabled permanently to continue his avocation in life. The Commissioner therefore assessed the loss of earning capacity of the claimant as 100%. The monthly earning of the claimant was reckoned as Rs.3,500/- and applying the relevant multiplier the total compensation payable to the claimant was calculated as Rs.4,32,495/-. The appellant Insurance Company was directed to pay the said amount to the claimant with 12% interest. MFA.60/2006. : : 6. It is contended by the learned senior counsel who appears for the appellant that the Commissioner committed serious illegality and irregularity in reckoning the disability of the claimant as 100% though the Medical Board in Ext.A1 certificate had assessed his disability as 40%. Learned senior counsel further submits that there is no rhyme or reason to ignore and overlook the report of the Medical Board which consisted of qualified Medical Practitioners who had expertise in the subject concerned. It is further contended by him that even assuming the claimant may not be in a position to drive a tanker lorry or such other heavy vehicle, his loss of earning capacity could not have been fixed as 100%. According to the appellant this is not a case of total disablement, since loss of vision in one eye will not incapacitate him for “all work”, which he might have been capable to perform at the time of the accident. MFA.60/2006. : : 7. The Commissioner has of course assessed the disability as 100%, keeping in view the relevant entry contained in Schedule I of the Act. Item No.4 in the above schedule is extracted hereunder: Sl.No. Description of Injury Percentage of loss of earning capacity 1 2 3 4 Loss of sight to such an extent as to render the claimant unable to perform any work for which eyesight is essential. 100 8. Undoubtedly the job of a driver in a heavy vehicle, especially a tanker lorry which carries inflammable articles, calls for high degree of skill, expertise and fitness. Most of the time, the drivers of these vehicles may have to undertake inter-State overnight journeys covering long distances. No employer will, under normal circumstances, engage a driver with one eye to drive such heavy vehicles. It will be hazardous for a driver with one eye to undertake long MFA.60/2006. : : distance overnight drive on highways, particularly if it is a heavy transport vehicle like a tanker lorry with a huge load. The contention of the appellant that the claimant can not be considered to be totally disabled for “all work”, which he might have been capable to perform at the time of the accident, is totally preposterous, to say the least. 9. “Partial disablement” as defined under Section 2 (1)(g) defines disablement of a temporary nature which reduces the earning capacity of a workman in any employment in which he was engaged at the time of the accident resulting in disablement which is of a permanent nature and which reduces his earning capacity in every employment which he was capable of undertaking at that time. Part II of Schedule I shall be deemed to result in permanent partial disablement. 10. Section 2(1)(l) defines total disablement, whether of a temporary or permanent nature, as incapacitates a MFA.60/2006. : : workman for all work which he was capable of performing at the time of the accident resulting in such disablement. It is further provided in the above definition clause 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, amounts to one hundred per cent or more. The statutory protection available to such a workman cannot be denied on some hypothetical assumptions or arguments. 11. Even assuming that the claimant may be able to get some other employment, which need not necessarily be that of a driver, it cannot be said that he will have to be satisfied with whatever he gets as remuneration from such an employment. The claimant had been working as a professional driver of heavy transport vehicles. Loss of one MFA.60/2006. : : eye has obviously resulted in permanent disablement as far as he is concerned. In that view of the matter, there can be no doubt that the Commissioner was justified in assessing the disability of the claimant as 100%. We are supported in our view by the decisions rendered by their Lordships of the Supreme Court in S. Suresh v. Oriental Insurance Co. Ltd. (JT 2009 (14) SC 359) and also in Janardhan v. United India Insurance Co. Ltd. ((2008) (2) KLT 995 (SC). Therefore the contentions raised by the appellant are repelled. The appeal is dismissed. A.K. Basheer Judge. P.Q. Barkath Ali Judge. an.