United India Insurance Co. Ltd. v. Abdul Razak and C.P. Marakkar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **MONDAY, THE 13TH DAY OF FEBRUARY 2012/24TH MAGHA 1933** **MFA.(WCC)No. 154 of 2011** **------------------------------------[AGAINST THE ORDER OF THE COMMISSIONER FOR WORKMEN'S COMPENSATION (DEPUTY LABOUR COMMISSIONER), KOZHIKODE]** **..........** ## **APPELLANT/2ND RESPONDENT:** **-----------------------------------------------** **UNITED INDIA INSURANCE COMPANY LTD., BRANCH OFFICE,VELIMANA BUILDING,THAMARASSERY, KOZHIKODE, NOW REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE,KOCHI-11.** ## **BY ADV. SRI.P.JAYASANKAR.** ## **RESPONDENTS/APPLICANT AND RESPONDENT NO.1:** **------------------------------------------------------------------------------** **1. ABDUL RAZAK,S/O.ABOOBACKER, CHOLAKKUMMUMMEL HOUSE,KODUVALLY.P.O, KOZHIKODE - 673 001.** **2. C.P.MARAKKAR,S/O.MOIDI,CHUNDIPONATHIL HOUSE,KOZHAKKOTH.P.O,KODUVALLY, KOZHIKODE - 673 001.** **BY ADVS. SRI.K.M.FIROZ, SMT.M.SHAJNA,** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 13-01-2012, THE COURT ON 13/02/2012 DELIVERED THE FOLLOWING:** **Prv.** ## Thottathil B.Radhakrishnan & ## C.T.Ravikumar, JJ. = = = = = = = = = = = = = = = = = = = = = = = = MFA(WCC).No.154 of 2011 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 13th day of February, 2012 ## Judgment **==> picture [39 x 13] intentionally omitted <==** ## Thottathil B.Radhakrishnan, J. - 1.This appeal by an insurer is against an award passed under the Workmen's Compensation Act, 1923 (since re-christened “the Employees' Compensation Act, 1923”). No such appeal shall lie unless a substantial question of law is involved in it, in view of the first proviso to Section 30(1) of that Act. - 2.Before the Commissioner, the insurer denied liability to indemnify the insured on the plea that the incident did not arise in the course of employment. It also disputed the lump sum payment claimed by the applicant and his plea as to the monthly wages. MFA(WCC)No.154/11 -: 2 :- 3.Appreciating the evidence, the Commissioner held that the applicant was driving the lorry of his employer and when it reached near a check post, a group of men manhandled him. FIR, accident-cumwould certificate, reference card to the Medical College Hospital, body mahazar, certificate issued by the Sub Inspector of Police etc. were taken on record. The accident was, thus, found as one that falls within the ambit of the provisions of the Act. 4.Supporting the appeal, it is argued, firstly, that the monthly wages ought to have been pegged at Rs.4,000/-, having regard to the provision in Explanation II to Section 4(1)(a) and (b) and the impugned award, treating the monthly wages as Rs.6,000/- is unsustainable in law. Secondly, it is argued that the percentage of loss of earning capacity has not been assessed by a qualified medical practitioner in terms of the decision of the Full Bench of this Court in New India Assurance Co. Ltd. v. Sreedharan[1995(1) KLT 275]. The further plea is that the Commissioner MFA(WCC)No.154/11 -: 3 :- awarded amounts in excess of that claimed. 5.We first proceed to consider the primary plea of the insurer that the monthly income of the workman ought to have been pegged at Rs.4,000/and the argument on its behalf with reference to Explanation-II occurring after clauses (a) and (b) of sub-section (1) of Section 4. A survey of the Act shows that the legislature visualised five contingencies, to start with. They are (1) death; (2) permanent total disablement; (3) permanent partial disablement; (4) temporary total disablement; and, (5) temporary partial disablement. We also see the legislation categorising the injuries as those included in the Schedules, also with deeming provisions. Section 4(1)(a) deals with cases where death results from the injury. Fortunately, this is not such a case. Section 4(1)(b) deals with cases where permanent total disablement results from the injury. To his fortune, the claimant in this case is not permanently totally disabled. It is a case of permanent “partial” disability. The determination of compensation due to the MFA(WCC)No.154/11 -: 4 :- applicant would not, therefore, fall within Section 4(1)(b). It falls, squarely under section 4(1)(c), which governs cases where permanent partial disablement results from the injury. The limit of Rs.4,000/- fixed in Explanation-II to Section 4(1)(a) & (b) is not applicable to cases which fall under Section 4(1)(c). The appealing insurer's plea that the Commissioner ought to have pegged the monthly income of the workman at Rs.4,000/- applying Explanation-II occurring after clauses (a) and (b) of Section 4(1) of the Act, therefore, fails. 6.As regards the appealing insurer's second plea based on New India Assurance Co.Ltd.(supra), the fact that the medical certificate has been issued by a qualified medical practitioner is not disputed. As noted supra, excluding death, disability, in the physical sense, could be permanent total disability, permanent partial disability, temporary total disability or temporary partial disability. These are the types on which the physical disability can be classified in terms of the status of the body. MFA(WCC)No.154/11 -: 5 :- When it comes to the loss of earning capacity, it has to be determined with reference to the occupation of the person concerned. This is the method of determination of loss of earning power or earning capacity. Though the statute uses the phrase “loss of earning capacity” quite often, medical practitioners and medical boards use different other terms to express what they would have, in fact, determined as loss of earning capacity. They are men of medicine; not of law. One way of expressing the loss of earning capacity is to state the percentage of what is called “occupational disability”. Such assessment is nothing but the determination of the loss of earning capacity qua the occupation of the injured at the time of accident. In the case in hand, this is determined at 30%, as per Ext.A7 disability certificate given by the Assistant Professor of Orthopaedics in the Medical College Hospital, Calicut. What has been so determined is nothing but the loss of earning capacity. We are, therefore, satisfied that the loss of earning capacity of 30% as was determined by the authorized medical practitioner and applied by MFA(WCC)No.154/11 -: 6 :- the Commissioner to determine the compensation is the measure of the loss of earning capacity of the injured in hand. The argument of the insurer to the contrary does not stand in law. 7.Another plea of the appellant/insurer is that while the applicant claimed lump sum payment of Rs.1,50,000/-, the Commissioner applied the multiplier and concluded that he is entitled to Rs.2,17,793/- as compensation with simple interest from the date of accident. The insurer points out that the Commissioner has made an award in excess of the amount claimed. The workman belongs to the marginalized sector of the society. He is a driver of a lorry. He was seriously injured in the accident that arose out of the course of his employment. It was an instance of assault using weapons. The legislation under which he has been granted compensation is a piece of social security legislation. As laid down by the Division Bench of this Court in Radhamony v. Secretary, Dept. of Home Affairs[1995 – 1 LLN 370], the workman having been found to be entitled to compensation, MFA(WCC)No.154/11 -: 7 :- as statutorily fixed, that cannot be denied merely on account of miscalculation or wrong calculation of the compensation amount by him. That settled proposition of law stands to advise against interference by this Court, on a ground that the impugned award gives rise to a substantial question of law to be answered in favour of the insurer, on that count. - 8.No substantial question of law has been made out as arising for decision and to be answered in favour of the appellant. Appeal fails. In the result, this appeal is dismissed. No costs. Sd/Thottathil B.Radhakrishnan, Judge. Sd/C.T.Ravikumar, Judge. Sha/090212 -true copy- P.S.to Judge. MFA(WCC)No.154/11 -: 8 :-