Ravi v. Subash S/o. Shanmughhan and The National Insurance Company Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` WEDNESDAY, THE 20[TH] DAY OF DECEMBER 2023 / 29TH ``` ``` AGRAHAYANA, 1945 ``` ## **`MFA (ECC) NO. 55 OF 2020`** ``` AGAINST THE ORDER/JUDGMENT DATED 14.02.2020 IN ECC NO.68 ``` ``` OF 2017 OF INDUSTRIAL TRIBUNAL & EMPLOYEES COMPENSATION ``` ## **`COMMISSIONER, KOZHIKODE`** ## **`APPELLANT/APPLICANT:`** ``` RAVI, AGED 45 YEARS S/O.RARU, VIRUPPADATH POTTABASANTH HOUSE, VAZHAYUR P.O., MALAPPURAM-673 633. ``` ``` BY ADV K.P.ANIL KUMAR ``` ## **`RESPONDENTS/OPPOSITE PARTIES:`** - **`1 SUBASH S/O. SHANMUGHAN, THALAYAMBALATH HOUSE, RAMANATTUKARA P.O., KOZHIKODE-673 633.`** - **`2 THE NATIONAL INSURANCE COMPANY LTD., BUILDING NO.III/193-G, NEAR SBI ATM COUNTER, THOTTADA, KANNUR-670 007.`** ``` BY ADV SEBASTIAN VARGHESE ``` - **`THIS MFA (ECC) HAVING BEEN FINALLY HEARD ON`** - **`26.03.2021, THE COURT ON 20.12.2023 DELIVERED THE FOLLOWING:`** M.F.A.(ECC) No. 55 of 2020 -:2:- ## **MARY JOSEPH, J.** - - - - - - - - - - - - - - - - - - - - - - - - M.F.A.(ECC) No. 55 of 2020 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20[th] day of December, 2023 ## **JUDGMENT** This appeal is originated from an order passed by the Industrial Tribunal and Employees’ Compensation Commissioner, Kozhikode (for short 'the Commissioner') on 14.02.2020 in ECC No.68/2017. The appellant is the claimant for compensation the under Employees' Compensation Act, 1923 (for short 'the Act'). 2. His grievance was that though the Commissioner has found him entitled to get compensation under Section 4(1) (c) (ii) of the Act, compensation was denied to him under Clause (d) of sub-section (1), which also he is entitled to get under the Act. The learned counsel has cited **Mohammed v. Cochin Port Trust** [2001 (3) KLT 166] to fortify his contention. The question that requires consideration in the appeal on hand is whether an insured who suffers permanent partial disablement and was granted compensation under Section 4(1)(c) is also entitled to get compensation under Clause (d) of sub-section(1) of Section 4 of the Act. M.F.A.(ECC) No. 55 of 2020 -:3:- 3. Before dealing with the merits involved in the argument, it is relevant to have a discussion about the facts of the case in brief. As per the pleadings of the petitioner while employed as a driver of an autorickshaw bearing registration No.KL-11-AD-5420 under one Mr.Subash on 05.10.2015, he lost control over the vehicle and thereby it overturned and he sustained injuries narrated hereunder: - “1. Left Ear Bleed. 2. Abrasion of size 6x4x0.5 cm over right knee 3. Abrasion of size 4x3x0.5 cm below right knee 4. Abrasion of size 6x0.5x0.5 cm over right dorsum of foot 5. Abrasion of size 5x4x0.5 cm over left knee 6. Abrasion of size 0.5x0.5x0.5 cm left elbow 7. Abrasion of size 6x4x0.5 cm over left Hip 8. Abrasion of size 0.5x0.5x0.5 cm right dorsum of hand 9. Abrasion of size 2x4x0.5 cm over dorsum of 3[rd] , 4[th] and 5[th] toe 10. Abrasion of size 0.5x0.5x0.3 cm over lateral aspect of left dorsum of foot” 4. According to him, the motor accident has arisen out of and in the course of his employment. According to him, he was getting `17,000/- as monthly income and is entitled to get a sum of `3,10,000/- as compensation from the opposite parties, who are none other than his employer as well as insurer of the autorickshaw. M.F.A.(ECC) No. 55 of 2020 -:4:- 5. Written Statement was filed by both parties. The first opposite party in his written statement did not deny the employer-employee relationship among himself and the petitioner. The motor accident and insurance coverage of the vehicle with the second opposite party were admitted by him. The second opposite party in the written statement filed admitted the insurance coverage of the Autorickshaw with them at the relevant time of the motor accident, but denied the employer-employee relationship. 6. Before the Commissioner, petitioner was examined as AW1 and Exts.A1 to A15 series were marked in evidence. The opposite parties did not adduce any evidence. 7. On appreciation of the evidence, the Commissioner found the petitioner entitled to get compensation under Section 4(1) (c) (ii) of the Act and `2,61,173/- was arrived at. Simple interest at the rate of 12% per annum for the sum, from 05.10.2015 till the date of its deposit was also ordered. `16,514/-, being the expenses incurred by the petitioner for his treatment was also allowed. The second opposite party was directed to deposit the amount by way of Demand Draft drawn in the name of the petitioner, within 30 days from the date of the M.F.A.(ECC) No. 55 of 2020 ## -:5:- order. In case of failure on the part of the second opposite party, the petitioner was permitted to get the amount realised through revenue recovery proceedings. 8. It is pertinent to note that the Commissioner on appreciation of the evidence found that a motor accident was occurred on 05.10.2015 with the involvement of an autorickshaw bearing registration No.KL-11-AD-5420 that belongs to the first opposite party. Since it was admitted by both opposite parties that the vehicle was insured with the second opposite party as on date of the motor accident, after arriving at the compensation payable, liability was fastened on the latter to pay it in favour of the claimant. None of the opposite parties challenged the above finding in appeal. Petitioner alone raised a challenge against. 9. It is pertinent to note that medical records describing the injuries sustained by him in the motor accident occurred on 05.10.2015 were not produced by the petitioner. The motor accident was admitted by all the opposite parties. But, the injuries sustained by the petitioner and the disability allegedly suffered by him were denied by the opposite parties. The injuries were extracted from the application filed before the Commissioner. It is noted by the Commissioner in paragraph 4 M.F.A.(ECC) No. 55 of 2020 -:6:- that a preliminary enquiry was conducted into the allegations and a prima facie case was found existing. Even if it is taken for granted that the petitioner had sustained the injuries described in the application seeking compensation, those are only minor ones being abrasions. Ext.A10 series are medical bills disclosing the expenditure incurred by the petitioner towards his treatment and those incorporate, bills for the years, 2015, 2016 and 2017. It is discerned from the O.P. tickets of the year 2015 that at the time of admission at Government Medical College Hospital, Kozhikode on 22.11.2015, petitioner had undergone parietal craniotomy. It is revealed from Ext.A3 that during the course of the treatment at Government Medical College Hospital, Kozhikode, EDH, SDH and fracture of parietal bone were diagnosed on 05.10.2015. Parietal craniotomy, evacuation of EDH and wound debridement were done and he was discharged on 29.10.2015. His condition improved with the above procedural managements. He was advised to continue medication for some more time and to review further. Exts.A4 and A5 are O.P. Tickets respectively dated 12.11.2015 and 02.01.2016. It is revealed that the petitioner was advised to continue medication and physiotherapy. Ext.A6 is also an O.P. M.F.A.(ECC) No. 55 of 2020 ## -:7:- Ticket dated 07.04.2016 which shows that the petitioner had reviews on 05.05.2016, 06.06.2016, 07.07.2016, 04.08.2016, 08.09.2016 and 22.12.2016. He was advised to continue medication except tablet Eptoin which was administered all throughout his treatment. Ext.A12 is an O.P. Ticket which discloses that the petitioner attended emergency department of Government Medical College Hospital, Kozhikode on 27.08.2017 with pain on back of chest, radiating to both arms and therefore was advised to have some medication. As per Ext.A13, an O.P. Ticket dated 26.03.2018, petitioner attended the very same hospital with a complaint of deafness for last three years. Hearing assessment was done and the wax in the left ear was removed. As per Ext.A14, an O.P. Ticket, the petitioner attended the very same hospital with complaints of pain over left upper back and medication was advised. As per Ext.A15, an O.P. Ticket dated 02.09.2017 petitioner attended the hospital for pain on neck and left arm and was advised medication. Ext.A8 is a certificate of assessment of his hearing capacity issued from Speech and Hearing Center, Department of of ENT, Government Medical College Hospital, Kozhikode. It was certified after examination that patient was neither “hard of hearing” nor M.F.A.(ECC) No. 55 of 2020 -:8:- “deaf” as per Rights of Persons With Disabilities Act, 2016 and Guidelines, issued thereunder. Hearing loss was certified as 10.63%. Ext.A11 is a certificate issued by a consultant Orthopaedic Surgeon certifying 30% as his occupational disability. It is evidenced from the O.P. Tickets referred to above that the petitioner had continuous treatment after the motor accident occurred on 05.10.2015 till 2018. Though he had sustained head injury, tablet Eptoin was seen advised only till 22.12.2016. Further reviews appear to be for backache and hearing loss. There is nothing on record to co-relate the treatment for the period after discontinuation of tablets Eptoin by the petitioner as per medical advice. It was in the year 2018 that the claimant had raised complaints of hearing loss. Though the petitioner claimed that hearing loss was there for him since three years prior to 2018 itself, none of the O.P. Tickets pertaining to the treatment undergone by him during 2015 to 2017 referred about any complaint made by the petitioner on hearing loss. Ext.A11 was issued by a consultant Orthopaedic Surgeon in the year 2017, where 30% was certified as the occupational disability of the petitioner. Assessment of disability as above in Ext.A11 was not substantiated with reasons. The M.F.A.(ECC) No. 55 of 2020 ## -:9:- hospital to which the Orthopedic Surgeon who issued Ext.A11 belongs to was also not stated there. However, the Commissioner on the basis of Ext.A11 reached a conclusion that the claimant had sustained permanent total disablement on account of the injuries sustained in the motor accident on 05.10.2015. Thus, the compensation payable to him was assessed by the Commissioner. 10. In the above context this Court finds it relevant to refer the statutory provision in the Act that defines permanent partial disablement. Clause (g) of Section 2(1) of the Act defines partial disablement and Clause (l), total disablement. In order to have an idea about partial and permanent disablement, Clause (g) of Section 2(1) is extracted hereunder : “(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, 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; ” Therefore, when the disablement reduces the earning capacity of an employee in an employment in which he was M.F.A.(ECC) No. 55 of 2020 ## -:10:- engaged at the time of the motor accident causing the disablement, it is partial disablement and where the disablement reduces his earning capacity in every employments which he was capable of undertaking at that time, the disablement is of permanent nature. A proviso was appended to the above definition to make it clear that every injuries specified in Part II of Schedule I shall be deemed to cause permanent/partial disablement. Therefore, for being eligible for getting compensation for permanent partial disablement, a claimant must establish either that he had sustained an injury specified in Part II of Schedule I or that by virtue of the injury sustained by him, his earning capacity in every kinds of employments which he was capable of doing at that point of time is reduced. Clause ## (l) of Section (2) defines total disablement as follows: “(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, amounts to one hundred per cent. or more;]”** ## Therefore, disablement, either of a temporary or M.F.A.(ECC) No. 55 of 2020 ## -:11:- permanent nature, that incapacitates an employee from doing works of every kind, which he was capable of performing at the time of the accident resulting in such disablement and of injuries specified in Part I of Schedule I or from any combination of injuries in Part II thereof and also includes permanent total disablement resulting from every injuries specified in Part I of Schedule I or from any condition of injury specified in Part II thereof where an aggregate percentage of loss of earning capacity as specified in the said Part II against those injuries amounts to 100% or more. 11. In the case on hand, the petitioner had sustained head injury in the motor accident and had undergone parietal craniotomy and evacuation of EDH. He was on medication for a considerably long period but lateron he was advised to disctoninue the tablet Eptoin, he was taking for head injury, throughout till date. Thereafter he had reviews as out patient based on his complaints of back pain and hearing loss. In the year 2017, he managed to obtain a certificate through an Orthopedic Surgeon assessing his occupational disability as 30%. As already stated, reasons for arriving at 30% as his occupational disability were not stated in Ext.A11. M.F.A.(ECC) No. 55 of 2020 ## -:12:- 12. The Act contemplates in Section 4(1) (b) that only a person having permanent total disablement that results from the injuries sustained by him during the course of employment alone, is entitled to get a sum equal to 60% of the monthly wages of the injured (employee) multiplied by the relevant factor or an amount of `1,40,000/-, whichever is more. Therefore, in order to be entitled to get compensation as above under Section 4(1) (b) of the Act, the claimant must establish that permanent total disablement was caused to him on account of the injuries sustained in the motor accident. It is pertinent to note that apart from Ext.A11, other medical documents assessing permanent disablement for him on account of the injuries sustained in the motor accident are not forthcoming. Occupational disability is certified in Ext.A11. But, the medical practitioner who had issued Ext.A11 was not examined. The petitioner has no case in the application seeking compensation that the injuries sustained had made him permanently and totally disabled or that in view of the injuries sustained, all kinds of jobs which he was capable of performing at the time of the motor accident that resulted in such disablement or that his earning capacity in every employment which he was capable of M.F.A.(ECC) No. 55 of 2020 -:13:- undertaking, was taken away. It is in that context that the Commissioner was pleased to find him entitled to get compensation under Section 4 (1) (c) (ii) of the Act. 13. In the decision relied on by the learned counsel for the appellant, the factual context is entirely different. It was a case where, after arriving at `12,833/- as compensation for partial permanent disability of 20%, he was found ineligible to get the same for the reason that his employer had already paid `17,356/- towards the hospital leave salary during the period of treatment, relying on Rule 39 of the Cochin Port Trust Employees Leave Regulations. In the case relied on, the claimant had obtained his permanent partial disability got assessed as 20% through the Chief Medical Officer of Cochin Port Trust and on its basis, compensation was fixed as `12,833/- for partial permanent disablement. For the reason that the employer had paid an amount towards the hospital leave salary as per the Regulations applicable to them, the compensation arrived at by the Commissioner was appropriated in the sum already paid and the balance was ordered to be recovered by proceedings initiated by them. In the above context, the Division Bench of this Court held : M.F.A.(ECC) No. 55 of 2020 ## -:14:- “In fact, the compensation allowable as per clause (d) is in respect of the period during which the injured was on temporary disablement by which he could not attend to his duties whereas clause (c) deals with the compensation for the permanent partial disablement suffered by the injured as a result of the employment injury. In fact, clauses (b) and (c) of sub-s.1 would entitle the injured to compensation for permanent disablement whereas clause (d) would entitle the worker for compensation for the period during which he could not attend to the duty due to temporary disablement as a result of the injury. Sub-s.(2) of S.4 would apply only to clause (d) of sub-s.1 of S.4 and the embargo as per sub-s.(2) shall not apply to clause (a), (b) and (c) of sub-s.1 of S.4.” In the case on hand, for want of evidence to establish that the petitioner had sustained disablement defined under Clause (g) of Section 2, the Commissioner found him entitled to get compensation under that head. Qualified medical practitioner is also defined in Clause (i) of Section 2 which reads : “(i) "qualified medical practitioner" means any person registered under any [Central Act, Provincial Act or an Act of the Legislature of a ] [State] providing for the maintenance of a register of medical practitioners, or, in any area where no such last-mentioned Act is in force, any person declared by the State Government, by notification in the Official Gazette, to be a qualified medical practitioner for the purposes of this Act; ” M.F.A.(ECC) No. 55 of 2020 -:15:- 14. In the case on hand, the claimant had produced only Ext.A11 certificate, where 30% disability was assessed by a consultant Orthopaedic Surgeon, but he will not come within the category of qualified medical practitioner as defined above. Moreover, permanent partial disability was also not assessed, so as to make the petitioner entitled even to get compensation under Section 4(1)(c)(ii) of the Act. But the Commissioner arrived at a finding that the petitioner is entitled to get compensation under Section 4(1)(c)(ii) of the Act and arrived at a sum of `2,61,173/- as the compensation payable. Since a challenge has not been raised against, by the opposite party this Court is not in a position to interfere with the same. When the award of compensation under Section 4(1)(c)(ii) itself was passed on a wrong appreciation of evidence, this Court is declined to hold that the claimant is also entitled to have compensation under Section 4(1)(d) of the Act. Appeal fails for the reasons and is dismissed. Sd/- ## **MARY JOSEPH, JUDGE** ttb