Suresh S v Oriental Insurance Company Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR** **WEDNESDAY, THE 27[TH] DAY OF MARCH 2024 / 7TH CHAITHRA, 1946 MFA (ECC) NO. 113 OF 2021** **ECC NO.379 OF 2017 OF EMPLOYEES COMPENSATION COMMISSIONER** **(INDUSTRIAL TRIBUNAL AND EMPLOYEES INSURANCE COURT),** ## **THIRUVANANTHAPURAM** ## **APPELLANT/APPLICANT** **SURESH S, AGED 47, S/O SUDHAKARA PANICKER, CHATHALAPATTUKONAM KIZHAKKUMKARA, PUTHEN VEEDU, VEDIVECHANKOVIL, THIRUVANANTHAPURAM DISTRICT, PIN695 501.** **BY ADV RINU. S. ASWAN** ## **RESPONDENT/2ND OPPOSITE PARTY** **ORIENTAL INSURANCE COMPANY LTD, REP BY ITS MANAGER, DIVISIONAL OFFICE, THAKARAPARAMBU, THIRUVANANTHAPURAM, PIN-695 501.** **BY ADVS. GEORGE CHERIAN (SR.) ALEXY AUGUSTINE GEORGE A.CHERIAN** **SC K.S.SANTHI** **THIS MFA (ECC) HAVING BEEN FINALLY HEARD ON 22.3.2024, THE COURT ON 27.03.2024 DELIVERED THE FOLLOWING:** _MFA (ECC).113/2021_ 2 ## **C.PRATHEEP KUMAR, J.** -------------------------------------M.F.A (ECC) 113 of 2021 ----------------------------Dated : 27[th] March, 2024 ## **JUDGMENT** 1. This appeal is filed by the applicant in ECC 379/2017 on the file of the Employees Compensation Commissioner, Thiruvananthapuram, as per order dated 27.5.2020, awarding a compensation of Rs.2,57,025/along with interest at the rate of 12% per annum to the appellant/applicant. 2. The appellant herein filed the above application before the Employees Compensation Commissioner, claiming compensation on account of the injury sustained by him while working as paid driver of the autorickshaw bearing No.KL-01/AX 7463 owned by the 1[st] respondent in the claim petition. In the incident the appellant/applicant sustained fracture Calcaneum and fracture left fibula. After evaluating the available evidence, the Commissioner found that he is entitled to get a compensation of Rs.2,57,025/-. While arriving at the above amount, the Commissioner has taken the monthly income of the appellant as Rs.8000/- and also on the basis that the appellant sustained 30% loss of earning capacity. 3. In Ext.A5 disability certificate produced by the applicant, the disability of the appellant is shown as 45%. The Commissioner observed that the disability assessed was on higher side. The above finding of the Commissioner, disbelieving Ext.A5 and fixing the disability at 30% was seriously challenged by the learned counsel for _MFA (ECC).113/2021_ 3 the appellant. According to him, the Commissioner ought to have accepted the disability as noted in Ext.A5 and also that without assigning valid grounds, Ext.A5 was discarded. On the other hand, the learned counsel for the respondent would argue that there is nothing wrong in limiting the disability at 30%. Therefore, he prayed for dismissing the appeal. 4. Now the point that arise for consideration is the following: _Whether the Employees Compensation Commissioner was justified in ignoring Ext.P5 disability certificate and the same has resulted in miscarriage of justice?_ 5. **The point:-** In support of his argument, the learned counsel for the appellant relied upon the decision of the Hon'ble Supreme Court in **Chanappa Nagappa Muchalagoda v. Divisional Manager, New India Insurance Company Limited, AIR 2020 SC 166.** In the above case, the appellant was working as driver of a truck with sand which met with accident resulting in serious injuries in his right leg. Thereafter he could not continue his avocation as a driver of a heavy motor vehicle. He was required to use a walking stick and could not lift heavy objects. The Doctor certified that he has suffered 37% disability in his whole body and could not perform the work of a truck driver any longer. While distinguishing the actual physical disability and loss of future earning capacity, the Apex Court held that in the above case though the physical disability assessed is only 37%, the functional disability was assessed as 100%. For arriving at the above conclusion, the Apex Court held that : _“.......The aforesaid judgments are instructive for assessing the_ _MFA (ECC).113/2021_ 4 _compensation payable to the Appellant in the present case. As a consequence of the accident, the Appellant has been incapacitated for life, since he can walk only with the help of a walking stick. He has lost the ability to work as a driver, as he would be disqualified from even getting a driving license. The prospect of securing any other manual labour job is not possible, since he would require the assistance of a person to ensure his mobility and manage his discomfort. As a consequence, the functional disability suffered by the Appellant must be assessed as 100%.”_ 6. In the decision in **Indra Bai v. Oriental Insurance Company Ltd and Ors, AIR 2023 SC 3478,** the appellant was employed as loading and unloading labourer with the respondent Company. During the course of employment she sustained compound fracture of her left arm as well as damage to the nerves. As per the certificate issued by the Doctor, she had permanent disability to the extent of 50% with a declaration that she is unfit for labour work. The Commissioner assessed the earning disability of the appellant as 100% which was reduced by the High Court as 40%. While restoring the earning disability of the appellant as 100%, the Apex Court held in paragraph 31 thus : _“In the instant case, on the basis of medical certificate provided by the Board, the Commissioner found the Appellant unfit for labour inasmuch as there was complete loss of grip in Appellant's left hand. Prior to the accident, the Appellant worked as a loading/unloading labourer. Even if she could use her right hand, the crux is whether she could be considered_ _MFA (ECC).113/2021_ 5 _suitable for performing her task as a loading/unloading labourer. Such a task is ordinarily performed by using both hands. There is no material on record from which it could be inferred that the Appellant was skilled to perform any kind of job by use of one hand. It is also not a case where the Appellant had the skill to perform her job by using machines which the Appellant could operate by using one hand. In such circumstances, when the Board had certified that the Appellant was rendered unfit for labour, there was no perversity in the decision of the Commissioner in awarding compensation by treating the disability as total on account of her functional disability. Consequently, no question of law, much less a substantial one, arose for consideration by the High Court so as to allow the appeal in exercise of power Under Section 30 of the Act. In our considered view, the High Court erred in partly setting aside the order of the Commissioner and assessing the disability as 40% instead of 100%, as assessed by the Commissioner.”_ ## 7. In paragraph 10 of **Raj Kumar v. Ajay Kumar and Anr. 2010 KHC 5021** , the Hon'ble Supreme Court held that : _“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_ _MFA (ECC).113/2021_ 6 _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_ _MFA (ECC).113/2021_ 7 _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._ 8. Relying upon the decision of a learned Single Judge of this Court in **Manikantan G. v. K.Janardhanan Nair and Others, 2021 (5) KHC 305,** the leaned counsel for the appellant would argue that the compensation Commissioner was not justified in refusing to accept the disability certificate for the reason that the Doctor was not examined. In paragraph 13 of **Rajkumar** (supra), the Hon'ble Supreme Court has summarised the principles to be followed for ascertaining the loss of earning capacity as follows : _“13. We may now summarise the principles discussed above :_ - _(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity._ _(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as_ _MFA (ECC).113/2021_ 8 _the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability)._ _(iii) The doctor who treated an injured - claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety._ _(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors. “_ 9. In the instant case, the appellant was working as driver of the autorickshaw owned by the 1[st] respondent in the claim petition. The contention of the appellant is that because of the injury sustained in the incident, he could not continue his job as autorickshaw driver. Admittedly in the incident, the appellant sustained fracture Calcaneum and fracture left fibula. Ext.A5 disability was issued by additional Professor in Orthopedic, Government Medical College, Thiruvananthapuram on 5.8.2019, more than 6[1] /2 years after the date of accident. In Ext.A5, the Doctor has stated that he had assessed the loss of earning capacity of the patient on the basis of the treatment records and after examining the patient on the date of the certificate on 5.8.2019. He noticed that the following problems are there with the patient : _MFA (ECC).113/2021_ 9 _1. He has recurrent left leg and foot pain._ _2. He has difficulty in squatting, climbing, stairs, running._ _3. Radiologically malunited fracture of left calcaneum and left fibula_ _4. Wasting of left quadriceps and leg muscles._ _5. Loss of termin_ al 25 degrees of plantar and dorsiflexion of left ankle. ## 10. Thereafter he concluded that : _“Considering the above factors, I certify that the loss of earning capacity assessed as per ECC act is 45% (Forty five)”_ ## 11. In the impugned order, the Employees Compensation Commissioner has stated that :- _“Exhibit A5 is the Certificate showing loss of earning capacity issued by the medical practitioner attached to Medical College hospital, Thiruvananthapuram. It shows that the loss of earning capacity is 45%. The Applicant was present before the tribunal during the examination. There is no follow up treatment as per the available documents. A close perception of the Applicant at the time of examination and the nature of injuries sustained by the Applicant it can be inferred that the Disability certificate issued by the concerned doctor is on higher side. The Applicant has not examined the Doctor who issued the certificate to prove how such percentage of disability was arrived without any follow up treatments. So in_ _MFA (ECC).113/2021_ 10 _the interest of justice and considering the facts and circumstances of the case I am of the view that the applicant has 30% loss of earning capacity will be reasonable for calculating the compensation.”_ 12. One of the reasons stated by the Commissioner is that there is no follow up treatment as per the available documents. However in Ext.A5, the Doctor specifically stated that the patient continued treatment as an outpatient (OP). Further, the Doctor who issued Ext.P5 has given detailed reasons for arriving at the conclusion that the appellant has sustained loss of 45% earning capacity. No valid grounds were given in the impugned order by the Commissioner for disbelieving Ext.A5 and for arriving at a conclusion that the loss of earning capacity is only 30%. In the above circumstances, I do not find any justification for the Commissioner to discard Ext.A5 and for limiting the loss of earning capacity of the appellant at 30%, which has considerably reduced the quantum of compensation payable to the appellant and thereby lead to miscarriage of justice. Therefore, the compensation due to the appellant is liable to be re-fixed taking into account his loss of earning capacity as 45%. Accordingly, the compensation payable to the appellant will come to Rs.3,85,538/- (8,000 x 60 x 45 x 178.49 /100 x 100). Point answered accordingly. Point answered accordingly. 13. In the result, the appeal is allowed. The amount of compensation payable to the appellant is fixed at a sum of Rs.3,85,538/-. All other findings are sustained. Sd/- ## **C.Pratheep Kumar, Judge** Mrcs/25.3.2024