Sasidharan M.V. v. Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **TUESDAY, THE 9TH DAY OF JULY 2013/18TH ASHADHA, 1935** **MFA.No. 18 of 2011 ( F ) -----------------------** **AGAINST THE ORDER IN WCC 98/2002 of W.C.C.,KOZHIKODE DATED 27-04-2010** **APPELLANT(S)/2ND OPPOSITE PARTY:** **--------------------------------** **THE ORIENTAL INSURANCE COMPANY LIMITED, CHALAKUDY NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI-18.** **BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW.** **RESPONDENT(S)/APPLICANT: -----------------------** **SASIDHARAN M.V., S/O.CHATHU, MARAM VETTIL HOUSE, CHOMBALA P.O., KOZHIKKODE-673308.** **BY ADV. SRI.M.SASINDRAN.** **THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 09-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **amk** ## **K.M.JOSEPH & A.HARIPRASAD, JJ.** ## **------------------------------------------------** ## **M.F.A(W.C.C) No.18 OF 2011** **------------------------------------------------Dated this the 9[th] day of July, 2013.** ## **J U D G M E N T** ## **K.M.Joseph, J.** The appellant is the 2[nd] opposite party insurer in a proceeding under Section 22 of the Workmen's Compensation Act, 1923 renamed as Employee's Compensation Act, 1923 (hereinafter referred to as 'the Act'). The Commissioner rendered the following finding : “Applicant's right leg was amputed above knee. After the operation applicant developed acute rinal failure, Segmental fracture both bones left leg was treated by external fixation. Applicant also suffering from renal failure after operation. As per schedule I Part II Sl.No.18 the permanent partial disablement of the applicant is 70%. But applicant sustained grievous injuries and his left leg, Both bones of left leg was broken and external fixation was done. Moreover the applicant is now suffering from renal failure also. From the above I hold the occupational disability of the applicant due to accident and injuries are 100%. Applicant claimed Rs.4500/- as his monthly wages at the time of accident. I took normal wages of Rs.4000/- as the monthly wages for the purpose of Act. Applicant produced no document to prove his age at the time **M.F.A(W.C.C) No.18 OF 2011 2** of accident. In the absence of proof I rely on the available medical records as A3 and A5 and took the completed age of applicant at the time of accident as 41 years. Therefore, the applicant is entitled to receive a lump sum amount towards compensation as shown below: Rs.4000x60x181.37 -------------------------- = Rs.4,35,288/-. 100 Applicant is also entitled to receive simple interest @ 12% per annum from the date of accident.” 2. Following questions of law have been raised:- “(1) “whether the Commissioner is justified in fixing 100% occupational disability for the applicant without seeing any medical certificate” and (2) “whether the Commissioner is justified in granting 12% interest on the compensation amount from the date of accident when the Supreme Court has held that the interest is payable not from the date of accident, but only from the date of adjudication of the claim.” 3. As far as the second substantial question of law which is purported to be raised is concerned, it is to be answered against the appellant being covered by the decision of the Supreme Court in ## _**Oriental Insurance Co. Ltd. v. Siby George (2012(3) K.L.T 544).**_ We do so. 4. Learned Senior counsel for the appellant no doubt **M.F.A(W.C.C) No.18 OF 2011 3** pointed out that the rendering the appellant liable to satisfy the liability and the interest in the facts of this case may not be just. According to him the matter was kept pending before the Commissioner and there was inordinate delay. 5. Section 4A(3) speaks liability to interest, in a case where there is default in payment. The fact that the matter was kept pending by the Commissioner cannot take away the statutory right which is vouchsafed to the claimant. Therefore we are not impressed by that argument. 6. As far as the question of law on the basis that the Commissioner was not justified in fixing of 100% occupational disability is concerned, learned Senior counsel would point out that in this case in fact there is no medical evidence. He would further submit that the concept of total disablement in the Act requires a situation where the injured workman is incapacitated from doing all work and it has to be assessed not with reference to the particular employment, the workmen was engaged in at the time of accident, but with reference to all the work he was capable of doing. In this connection he enlisted support of the Full Bench decision of this **M.F.A(W.C.C) No.18 OF 2011 4** . court reported in _**Vanajakshan v. Joseph (2003(2) K.L.T 462)**_ Therein, the Full Bench, inter alia observed as follows :- “A perusal of the C1.(1) of S.2 shows that the disablement has to be considered in the context of the injury incapacitating the workman “for all work” and not for the work for which he was actually employed. The reference is to the work, which the workman “was capable of performing at the time of accident” and not to that which he was actually doing. In other words, the disablement has to be determined with reference to the loss of ability to do any work, which the employee was capable of doing. The compensation is for loss of wages or the earning capacity and not for the physical suffering of pain or the expense on treatment etc. A cumulative consideration of the provisions contained in Ss.2, 3 and 4 clearly shows that the intention of the Legislature was to compensate the workman for loss of earning capacity and not for the failure to perform the duties of the particular post on which he was actually working. The compensation has to be determined with reference to the loss in earning capacity and not the ability to perform the duties of the job, which was being done by the workman at the relevant time. The compensation has to be assessed on the basis of the percentage of the loss of earning capacity. While determining the loss of earning capacity the authority has to keep in view the loss of capacity of a workman “for all work which he was capable of performing” and not for **M.F.A(W.C.C) No.18 OF 2011 5** the work which he was actually doing. The competent authority has to award compensation on the basis of evidence adduced by the parties during the proceedings. The compensation has to be assessed with reference to the loss in earing capacity and not on the basis of the ability to perform the duties of the particular job, which was being performed by the workman. If, in a given case a workman is able to prove that the was incapable of doing any other job, the competent authority shall consider and decide the matter in the light of the evidence as adduced by the parties.” 7. He would submit on the facts that the case though there was amputation of one leg above knee, the Commissioner ought not have taken the occupational disability at 100%, having regard to the fact that in regard to the other leg what is alleged is only that the workmen suffered a fracture. Certainly the workman who was working as a 'cleaner' in a lorry would have been engaged in other work runs the argument. Therefore, taking occupational disability at 100% and that too in the absence of clear medical evidence on the said lines is impermissible, it is contended. 8. We may notice that in the judgment of the Full Bench the decision of the apex court in _**Pratap Narain Singh Deo v. Shrinivas**_ **M.F.A(W.C.C) No.18 OF 2011 6** ## _**Sabata and another**_ ( _**A.I.R 1976 S.C 222)**_ was referred to and it was held as follows :- “ _Mr. Muhammed has also drawn our attention to the decision of Their Lordships of the 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. We also take note of the subsequent judgment of the two Judges bench in _**Janardhan v. United India Insurance Co. Ltd.**_ ( _**2008(2) K.L.T 995 (S.C))**_ , wherein the court was concerned with a **M.F.A(W.C.C) No.18 OF 2011 7** tractor driver who while driving his vehicle met with an accident and the Commissioner assessed 100% disability. He has suffered a loss of a leg on amputation and the Doctor opined that there was 65% disability. The court referred to _**Pratap Narain Singh Deo v. Shrinivas Sabata and another (A.I.R 1976 S.C 222)**_ and reiterated the principle there. The case which the Full Bench of this court relied on by the appellant was dealing with, was a case of visual disability, where the loss of earning capacity under the schedule is only 40%, whereas in this case, the case involves amputation above knee. At any rate there was the fracture of the other leg as well. It is found that both bones of left leg were broken which was treated by external fixation. But we may notice that there is no certificate as such. Even going by Sl.Nos.16 to 18 of Part I of Schedule I of the Act read as follows :- |“16.|Amputation at hip<br>|90| |---|---|---| |17.|Amputation below hip with stump|| ||not exceeding 12.70 Cms. in length|| ||measured from tip of great trenchanter<br>|80| |18.|Amputation below hip with stump|| ||exceeding 12.70 Cms. in length measured|| ||from tip of great trenchanter but not|| ||beyond middle thigh<br>|70”| **M.F.A(W.C.C) No.18 OF 2011 8** 10. We would think that in the absence of medical evidence as such, the interest of justice would be subserved, if we applied the following formula in regards to the facts of the case. Rs.4,000/- x 60/100 x 90/100 x 181.37. With the same we arrive at a sum of Rs.3,91,760/-. The appeal is partly allowed as above and the order is modified. The appellant will be liable to pay a sum of Rs.3,91,760/- with interest at 12% from the date of the accident till the date of deposit. Any amount which the appellant has deposited in excess of what we have ordered will be refunded to the appellant. Sd/- **K.M.JOSEPH, JUDGE.** **Sd/-** **A.HARIPRASAD, JUDGE.** amk //True Copy// P.A to Judge