Gauhati High Court
MFA/48/2006 on 6 January, 2025
GAHC010178362006
THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
MFA No. 48/2006
M/S National Insurance Company Ltd.,
G.S. Road, Bhangagarh, Guwahati,
Represented by its Regional Manager, Guwahati,
Assam.
......Appellant.
-Versus-
1. Shri Laldhari Choudhury,
S/o Shri Ram Murat Choudhury;
Village:- No.3 Baluchar,
Dhubri Town, P.O., P.S. and Dist. Dhubri.
2. Shri Sawarmal Tantia,
S/o Late Sankar Lal Tantia,
Ward No.3, Baluchar, Dhubri Town,
P.S. & Dist.-Dhubri.
......Respondents.
BEFORE
HON'BLE MR. JUSTICE ROBIN PHUKAN
For the Appellant : Mrs. S. Roy. ......Advocate.
Page 1 of 26
For the Respondent : MR. J. P. Sharma. ......Advocate.
Date of Hearing : 17.12.2024
Date of Judgment : 6th January, 2025
JUDGMENT AND ORDER (CAV)
Heard Mrs. S. Roy, learned counsel for the appellant and
also heard Mr. J.P. Sharma, learned counsel for the respondent.
2. This appeal, under Section 30 of the Workmen's
Compensation Act, 1923, is directed against the Judgment and
Award dated 22.02.2006, passed by the learned Commissioner,
Workmen's Compensation, Dhubri in WC Case No. 02/2002. It is to
be noted here that vide impugned Judgment and Award, the
learned Commissioner had directed the appellant herein to pay a
sum of Rs. 3,78,355/, being the compensation to the respondent
No.1/claimant herein.
3. The back ground facts leading to filing of the present appeal
are briefly stated as under:-
"The respondent No.1 herein was employed as driver of
respondent No.2, namely, Sawarmal Tantia. Respondent
No.2 had one Maruti Car, bearing Registration No. AS-
19/7711. On 23.08.2001, at about 4 pm the respondent No.1
was proceeding from Golokganj to Dhubri. While he reached
Dumardaha, N.H. 31, under Golokganj P.S., the car met with
an accident, wherein he sustained grievous injuries. The
Page 2 of 26
respondent No.1 was taken to Dhubri Civil Hospital and from
there he was referred to Gauhati Medical College Hospital
and there he was admitted for 18 days and thereafter, also
he continued treatment at Nishiganj and thereafter, at
Dhubri Civil Hospital. He lost one of his eyes, in the said
accident and also both bone of his left arm got fractured. In
connection with the accident Golokganj P.S. Case No.
111/2001 was also registered. Thereafter, respondent No.1
had served a Notice, under Section 10 of the Workmen's
Compensation Act with the respondent No.2. But, the
respondent No.2 paid no heed to the same, instead he
advised him to claim compensation from the present
appellant as the vehicle was insured with the appellant, vide
policy No. 200701/31/2000/61/00991 and the same was
valid upto 20.12.2001. The respondent No.1, became
unemployed on account of the injuries sustained by him and
then being left with no option he filed a claim petition,
enclosing relevant documents, before the learned
Commissioner, Dhubri claiming a sum of Rs. 4,00,000/ being
the compensation.
The appellant and the respondent No.2 had contested
the said claim petition by filing written statements denying
their liabilities to pay compensation to the respondent No.1.
Thereafter, the learned Commissioner had framed
following issues:-
Page 3 of 26
1. Is there any cause of action for the
claimant petitioner?
2. Whether the claim petition is maintainable
in its present form?
3. Whether the O.P. are liable to pay
compensation as claimed by the claimant
petitioner?
4. If yes, what relief is the claimant
petitioner entitled to?
Thereafter, hearing both the parties, the learned
Commissioner had decided all the issues in favour of the
respondent No.1/claimant herein and directed the appellant
herein, to pay compensation as stated herein above.
4. Being aggrieved, the appellant has preferred this appeal,
which was admitted vide order dated 23.06.2006, without,
however, framing any substantial question of law.
4.1. But, subsequently, following substantial question of law
were framed:-
I. Whether, the learned Commissioner under the
Workmen's Compensation Act, 1923 can pass an
award in respect of a non-schedule injury
without there being any assessment of loss of
earning capacity by the medical practitioner
as required under Section 4(1)(C) (ii) of the
Act ?
Page 4 of 26
II. Whether the learned Commissioner under the
Workmen's Compensation Act, 1923 has the
jurisdiction to assess the loss of earning
capacity?
5. Mrs. Roy, the learned counsel for the appellant, submits that
the injuries sustained by the respondent No.1 are non-schedule
injury. Further, Mrs. Roy submits that under Section 4(1)(C) (ii) of
the Workmen's Compensation Act, 1923 in respect of a non-
schedule injury there must be an assessment of loss of earning
capacity by the registered medical practitioner. But, in the case in
hand, the learned Commissioner had himself assessed the loss of
earning capacity of the respondent No.1 and thereafter, assessed
compensation, which is beyond the jurisdiction of Commissioner
and on such count, Mrs. Roy contended to allow this appeal by
setting aside the impugned judgment and award.
5.1. Mrs. Roy in support of her submission, has referred following
decisions:-
(i) New India Assurance Co. Ltd. vs. Sanjit Kumar
reported in 2000(2) GLT 567;
(ii) United India Insurance Co. Ltd. vs.
Manoranjan Das and Anr. reported in 2008(Suppl) GLT
329;
(iii) M/S Oriental Insurance Co. Ltd. vs. Md. Nur
Zamal Sk. &Anr. reported in 2016 0 Supreme (Gau)
165;
Page 5 of 26
(iv) New India Assurance Co. Ltd. vs. Sri Gopal
Shill & Anr. reported in 2018 5 GauLR 305;
6. Per contra, Mr. Sharma, learned counsel for the respondent
No.1 submits that there was no infirmity or illegality in the
impugned judgment and award of the learned Commissioner and
no jurisdictional error is committed by the learned Commissioner
and therefore, Mr. Sharma has contended to dismiss the appeal.
6.2. Mr. Sharma has also relied upon following decisions:-
(i) Md. Ameeruddin and Another vs. United India
Insurance Company Limited and Another; reported
in (2011) 1 SCC 304;
(ii) National Insurance Co. Ltd. vs. Mubasir
Ahmed and Another reported in (2007) 2 SCC 349;
7. Having heard the submission of learned Advocates of both
the parties, I have carefully gone through the memo of appeal and
the grounds mentioned therein and also perused the impugned
judgment and award so passed by the learned Commissioner, as
well as the decisions referred by learned counsel for both the
parties.
8. It appears from the record of the learned Commissioner that
the respondent No.1, as claimant in the WC Case No.2/2002, had
examined himself and the doctor who had examined him in Dhubri
Civil Hospital. That perusal of the evidence of the respondent No.1
Page 6 of 26
and of the doctor reveals that the respondent No.1 had sustained
grievous injuries on his person in the accident that took place on
23.08.2001, at about 4 pm while he was proceeding from
Golokganj to Dhubri and while he reached Dumardaha, N.H. 31,
under Golokganj P.S. Immediately, he was taken to Dhubri Civil
Hospital and from there he was referred to Gauhati Medical
College Hospital and there he was admitted for 18 days.
Thereafter, also he continued treatment at Nishiganj and
thereafter, at Dhubri Civil Hospital. In the said accident, he had
lost his right eye, also got injury over his nose and lip and also got
injury over his left eye and as a result, his eye sight of left eye also
got diminished. Besides, both bone of his left arm got fractured
and he got injury over his left leg. Further it appears that in
connection with the accident Golokganj P.S. Case No. 111/2001,
was also registered.
9. The evidence of the respondent No.1 stands corroborated
from the evidence of witness Madhav Das, who had shifted the
respondent from the place of occurrence to Dhubri Civil Hospital in
an unconscious state and also reported the incident to his family
members. He is the eye witness to the accident. His evidence also
reveals that the respondent No.1 is sitting idle and now he is
unable to drive vehicle.
10. The evidence of doctor also reveals that during examination
of the respondent No.1 herein he found following injuries:-
(i) Head injury (Unconscious with vomiting);
Page 7 of 26
(ii) Compound fracture of both bone of left forearm;
(iii) Penetrating injury in the right eye ball causing phthisis of
the eye ball;
(iv) Fracture of nasal bone with gross depression of the nasal
bridge;
(v) Gross laceration of the orofacial region involving both
upper and lower lops, cheek, forehead and nose;
(vi) lacerated injury in the left leg size- 2" x 1" by bone deep;
He also opined that injury No. (i),(ii),(iii), (iv), and (v) are
grievous in nature and injury No.(vi) is simple in nature.
10.1. His evidence also reveals that the compound facture of left
forearm bone led to malunion which led to bending of the left
forearm causing difficulties in working and gross orofacial injury
has led to disfiguration. These injuries are permanent by 60%. His
evidence also reveals that because of the eye injury the patient
would not be able to drive vehicle. The material part of the
evidence of the doctor remained unrebutted and undisputed. He is
categorical in stating that the disability of the patient was 60 %.
11. These are the basic fact and there is no dispute about the
same. The dispute is regarding assessment of the loss of earning
capacity by the Commissioner himself since the injuries sustained
by the respondent No.1 herein are claimed to be non-schedule
injury, which as per provision of Section 4(1)(C) (ii) of the
Page 8 of 26
Workmen's Compensation Act, 1923 is the function of the medical
practitioner.
12. Section 4(1) (C) (ii) of the Workmen's Compensation Act,
1923 read as under:-
4. Amount of compensation.-
(1) Subject to the provisions of this Act, the
amount of compensation shall be as follows,
namely:--
................
(c) where permanent partial disablement result
from the injury:
…………….
(ii) in the case of an injury not specified in
Schedule I, such percentage of the compensation
payable in the case of permanent total
disablement as is proportionate to the loss of
earning capacity (as assessed by the qualified
medical practitioner) permanently caused by the
injury;
Explanation I.–Where more injuries than one are
caused by the same accident, the amount of
compensation payable under this head shall be
aggregated but not so in any case as to exceed
the amount which would have been payable if
permanent total disablement had resulted from the
injuries.
Explanation II.–In assessing the loss of earning
capacity for the purpose of sub-clause (ii), the
qualified medical practitioner shall have due
regard to the percentages of loss of earning
Page 9 of 26
capacity in relation to different injuries
specified in Schedule I;
SCHEDULE – I :
[See sections 2(1) and (4)]
PART – I :
LIST OF INJURIES DEEMED TO RESULT IN PERMANENT TOTAL DISABLEMENT
Sl. Description of Injury Percentage
No. of loss of
earning
capacity
1. Loss of both hands or amputation at 100
higher sites,
2. Loss of a hand and a foot, 100
3. Double amputation through leg or 100
thigh, or amputation through leg or
thigh on one side and loss of other
foot,
4. Loss of sight to such an extent as to 100
render the claimant unable to perform
any work for which eye-sight is
essential,
5. Very severe facial disfigurement, 100
6. Absolute deafness, 100
13. Admittedly, and indisputably, the respondent No.1 was a
driver by profession. Indisputably also, for a driver, eye sight is
very essential, without which he cannot drive a vehicle. And in no
uncertain terms the doctor herein this case had stated that due to
eye injury the patient would not be able to drive vehicle. And at no
point of time and nowhere in cross-examination of the doctor,
neither the appellant herein and nor the respondent No.2 hadPage 10 of 26
disputed this piece of evidence of the doctor, which, to the
considered opinion of this Court, is a Schedule -I injury, as per
Serial No.4. Besides, his evidence also reveals that the respondent
No.1 had sustained gross orofacial injury, which led to
disfiguration. And this injury is also a Schedule I injury as per
serial No.5. And the evidence of the doctor in this regard also not
disputed by the appellant and respondent No.1. And as such, as
per the Schedule- I the loss of percentage of earning capacity is
100 percent. In holding so, this Court derived authority from a
decisions of Hon’ble Supreme Court in Pratap Narain Singh
Deo vs. Srinivas Sabata, reported in (1976) 1 SCC 289.
13.1. In the aforementioned case, the claimant had lost his left
arm in an accident during the course of his employment. The
Commissioner had held that the injury had resulted in the
amputation of the left arm of the respondent above the elbow. He
held further that the claimant was a carpenter by profession and-
‚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‛.
The Commissioner therefore, adjudged him to have lost ‚100 per
cent of his earning capacity‛. On that basis, he calculated
the amount of compensation at Rs 9800 and ordered the payment
of penalty to the extent of 50 per cent, together with interest at 6
per cent per annum, making a total of Rs 15092.
Page 11 of 26
13.2. The aforesaid finding is challenged by filing one Special
Leave Petition, before the Hon’ble Supreme Court, wherein Hon’ble
Supreme Court has dealt with the issue as under:-
‚4. It has not been disputed before us that the
injury in question was caused to the respondent
by an accident which arose out of and in the
course of his employment with the appellant. It
is also not in dispute that the injury resulted
in amputation of his left arm at the elbow. It
has however been argued that the injury did not
result in permanent total disablement of the
respondent, and that the Commissioner committed
a gross error of law in taking that view as
there was only partial disablement within the
meaning of Section 2(1)(g) of the Act which
should have been deemed to have resulted in
permanent partial disablement of the nature
referred to in Item 3 of Part II of Schedule I
of the Act. This argument has been advanced on
the ground that the amputation was from 8″ from
tip of acromion and less than 4½″ below tip of
olecranon. As will appear, there is no force in
this argument.
5. The expression ‚total disablement‛ has been
defined in Section 2(1)(e) of the Act as
follows:
‚(1) ‘total disablement’ means such
disablement whether of a temporary or permanent
nature, as incapacitates workman for all workPage 12 of 26
which he was capable of performing at the time
of the accident resulting in such disablement.‛
It has not been disputed before us that the
injury was of such a nature as to cause
permanent disablement to the respondent, and the
question for consideration is whether the
disablement incapacitated the respondent for all
work which he was capable of performing at the
time of the accident. The Commissioner has
examined the question and recorded his finding
as follows:-
“The injured workman in this case is carpenter
by profession …. By loss of the 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.”
This is obviously a reasonable and correct
finding. Counsel for the appellant has not been
able to assail it on any ground and it does not
require to be corrected in this appeal. There is
also no justification for the other argument
which has been advanced with reference to Item 3
of Part II of Schedule 1, because it was not the
appellant’s case before the Commissioner that
amputation of the arm was from 8‛ from tip of
acromion to less than 4 below the tip of
olecranon. A new case cannot therefore be
allowed to be set up on facts which have not
been admitted or established.‛
13.3. Subsequently, this ratio was followed by Hon’ble Supreme
Court in the case of K. Janardhan v. United India
Page 13 of 26
Insurance Co. Ltd., reported in (2008) 8 SCC 518. In the
said case, the claimant was a tanker driver and while driving his
vehicle he met with an accident with a tractor, which was coming
from the opposite side. As a result of the accident, the claimant
suffered serious injuries and also an amputation of the right leg up
to the knee joint. On an application being filed before the
Commissioner for Workmen’s Compensation praying that as he
was 25 years of age and earning Rs 3000 per month and had
suffered 100% disability, he was entitled to a sum of Rs 5 lakhs by
way of compensation.
13.4. The Commissioner, found that as the claimant had
suffered an amputation of his right leg up to the knee, he was said
to have suffered a loss of 100% of his earning capacity as a driver
and accordingly, determined the compensation payable to him at
Rs 2,49,576 and interest @ 12% p.a. thereon from the date of the
accident. The finding of the Commissioner was challenged by the
insurance company before the High Court and the High Court
accepted the plea raised in appeal that as per the Schedule to the
Workmen’s Compensation Act, the loss of a leg on amputation
amounted to a 60% reduction in the earning capacity and as the
doctor had opined to a 65% disability, this figure was to be
accepted and thereafter reduced the compensation. The matter
then reached the Hon’ble Supreme Court and Hon’ble Court has
dealt with the issue as under:-
‚5. The learned counsel for the appellant has
raised only one argument during the course of
Page 14 of 26
the hearing. He has submitted that the
appellant claimant being a tanker driver, the
loss of his right leg ipso facto meant a total
disablement as understood in terms of Section
2(1)(l) of the Workmen’s Compensation Act and
as such the appellant was entitled to have his
compensation computed on that basis. In
support of this plea, the learned counsel has
placed reliance on Pratap Narain Singh
Deo v. Srinivas Sabata reported in (1976) 1
SCC 289. The cited case pertained to a
carpenter who had suffered an amputation of
his left arm from the elbow and this Court
held that this amounted to a total disability
as the injury was of such a nature that the
claimant had been disabled from all work which
he was capable of performing at the time of
the accident. It was observed as under:
‚5. The expression ‚total disablement‛ has
been defined in Section 2(1)(l) of the Act
as follows:
‘2. (1)(l) ‚total disablement‛ means
such disablement, whether of a temporary
or permanent nature, as incapacitates a
workman for all work which he was capable
of performing at the time of the accident
resulting in such disablement;’It has not been disputed before us that the
injury was of such a nature as to cause
permanent disablement to the respondent, and
the question for consideration is whether the
disablement incapacitated the respondent forPage 15 of 26
all work which he was capable of performing at
the time of the accident. The Commissioner has
examined the question and recorded his finding
as follows:
‘The injured workman in this case is
carpenter by profession…. By loss of the
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.’
This is obviously a reasonable and correct
finding. Counsel for the appellant has not
been able to assail it on any ground and it
does not require to be corrected in this
appeal. There is also no justification for the
other argument which has been advanced with
reference to Item 3 of Part II of Schedule 1,
because it was not the appellant’s case before
the Commissioner that amputation of the arm
was from 8″ from tip of acromion to less than
4½″ below the tip of olecranon. A new case
cannot therefore be allowed to be set up on
facts which have not been admitted or
established.‛
6. Applying the ratio of the cited judgment to
the facts of the present case we are of the
opinion that the appellant herein has also
suffered a 100% disability and incapacity in
earning his keep as a tanker driver as his
right leg had been amputated from the knee.
Additionally, a perusal of Sections 8 and 9 of
the Motor Vehicles Act, 1988 would show that
the appellant would now be disqualified from
even getting a driving licence.
Page 16 of 26
14. In the case in hand, the respondent No.1/claimant had
suffered loss of his right eye. Indisputably, a scheduled injury,
which appears as serial No.25 of Part II of Schedule I. As per the
said Schedule, the percentage of loss of earning capacity has to be
taken as 40%.
14.1. But, the respondent No.1/claimant being the driver, would
not be able to drive vehicle because of loss of one his right eye.
The evidence of the doctor is clear and cogent in this regard. In no
uncertain term the doctor stated that the claimant would not be
able to drive vehicle. As he lost his one eye, he was disqualified
even from getting a driving licence as per Sections 8 and 9 of the
Motor Vehicles Act, 1988. Here in this case, the Commissioner had
found that the Doctor had assessed of the claimant at 60 %, and
consequently, the Commissioner had assessed the loss of earning
capacity at 80%. As loss of his right eye rendered the claimant
unfit to drive vehicle and to opt for his previous avocation for
which eye-sight is essential, his loss earning capacity ought to
have been assessed at 100% as it comes under the purview of
serial No.4 of the Schedule-I. Besides, he also suffered gross
orofacial injury, which led to disfiguration. And this injury is also a
Schedule-I injury as per serial No.5. Also he suffered from
compound fracture of left forearm bone led to malunion which led
to bending of the left forearm causing difficulties in working.
Page 17 of 26
14.2. Thus, in the conspectus of given factual situation and also
applying the law laid down by Hon’ble Supreme Court in the case
of Pratap Narain Singh Deo (supra) and in the case of K.
Janardhan (supra), to the aforesaid factual situation, the loss
of earning capacity has to be assessed at 100%.
15. But, unfortunately, this aspect had eschewed consideration of
the learned Commissioner and no discussion was directed towards
the evidence of the doctor, who had examined the respondent
No.1. This being the position, this Court is of the considered
opinion that none of the substantial question of law, so framed,is
involved herein this appeal.
16. Even for the sake of argument, if we accept that there is
substantial question of law, yet, this Court is unable to accept the
argument of the learned counsel for the appellant in as much as if
such a restricted meaning is given to the provision of Section 4(1)
(ii) of Workmen’s Compensation Act, 1923 then it would defeat the
legislative intent.
17. Though, it is stated that only the qualified medical
practitioner has to assess the loss of earning capacity of the
injured claimant, yet in the case of Raj Kumar v. Ajay Kumar
reported in (2011) 1 SCC 343, while dealing with similar claim
petition of injured claimant, however, under Motor Vehicles Act,
Hon’ble Supreme Court had the occasion to dealt with the issue of
assessment of loss of earning capacity of the injured claimant.
Page 18 of 26
18. In the aforesaid decision, Hon’ble Supreme Court has held
that 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 to the extent of permanent
disability. The loss of earning capacity is something that will have
to be assessed by the learned Tribunal with reference to the
evidence in entirety.
19. It is fact that the above observation was made while dealing
with a claim petition under the Motor Vehicles Act. The present
case is under the Workmen’s Compensation Act. But, both the
case relates to claim for compensation in respect of injuries
sustained in motor vehicle accident. Both are beneficial piece of
legislation. Therefore, construction of a provision in the Act has to
be made in such a way so that the object sought to be achieved
by the legislature is not defeated. That being so, I find no reason
as to why the ratio laid down in the said cases so referred by Mrs.
Roy, learned counsel for the appellant, cannot be applied in given
facts and circumstances here in this case. In the case of Raj
Kumar (supra) Hon’ble Supreme Court has held as under:-
‚10. Where the claimant suffers a permanent
disability as a result of injuries, the
assessment of compensation under the head of loss
of future earnings would depend upon the effect
and impact of such permanent disability on his
earning capacity. The Tribunal should not
mechanically apply the percentage of permanent
disability as the percentage of economic loss orPage 19 of 26
loss of earning capacity. In most of the cases,
the percentage of economic loss, that is, the
percentage of loss of earning capacity, arising
from a permanent disability will be different
from the percentage of permanent disability. Some
Tribunals wrongly assume that in all cases, a
particular extent (percentage) of permanent
disability would result in a corresponding loss
of earning capacity, and consequently, if the
evidence produced show 45% as the permanent
disability, will hold that there is 45% loss of
future earning capacity. In most of the cases,
equating the extent (percentage) of loss of
earning capacity to the extent (percentage) of
permanent disability will result in award of
either too low or too high a compensation.
11. What requires to be assessed by the Tribunal
is the effect of the permanent disability on the
earning capacity of the injured; and after
assessing the loss of earning capacity in terms
of a percentage of the income, it has to be
quantified in terms of money, to arrive at the
future loss of earnings (by applying the standard
multiplier method used to determine loss of
dependency). We may however note that in some
cases, on appreciation of evidence and
assessment, the Tribunal may find that the
percentage of loss of earning capacity as a
result of the permanent disability, is
approximately the same as the percentage of
permanent disability in which case, of course,
the Tribunal will adopt the said percentage for
determination of compensation. (See for example,
the decisions of this Court in Arvind KumarPage 20 of 26
Mishra v. New India Assurance Co. Ltd. [(2010) 10
SCC 254 : (2010) 3 SCC (Cri) 1258 : (2010) 10
Scale 298] and Yadava Kumar v. National Insurance
Co. Ltd. [(2010) 10 SCC 341 : (2010) 3 SCC (Cri)
1285 : (2010) 8 Scale 567] )
12. Therefore, the Tribunal has to first decide
whether there is any permanent disability and, if
so, the extent of such permanent disability. This
means that the Tribunal should consider and
decide with reference to the evidence:
(i) whether the disablement is permanent or
temporary;
(ii) if the disablement is permanent, whether
it is permanent total disablement or
permanent partial disablement;
(iii) if the disablement percentage is
expressed with reference to any specific
limb, then the effect of such disablement
of the limb on the functioning of the
entire body, that is, the permanent
disability suffered by the person.
If the Tribunal concludes that there is no
permanent disability then there is no question of
proceeding further and determining the loss of
future earning capacity. But if the Tribunal
concludes that there is permanent disability then
it will proceed to ascertain its extent. After
the Tribunal ascertains the actual extent of
permanent disability of the claimant based on the
medical evidence, it has to determine whether
Page 21 of 26
such permanent disability has affected or will
affect his earning capacity.
13. 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
disability (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 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.
14. 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 per cent, 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
Page 22 of 26
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 be 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 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.
………………………
19. 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 the percentage of permanent
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disability (except in a few cases, where
the Tribunal on the basis of evidence,
concludes that the percentage of loss of
earning capacity is the same as the
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 to 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.
20. Thus, having analysed the factual and legal position which is
discernible from the decision of Hon’ble Supreme Court, it cannot
be said that the learned Commissioner had ignored the relevant
provision of law. The undisputed and uncontroverted evidence of
the doctor is clear and cogent enough to show the extent of the
injuries sustained by the respondent No.1 and its impact upon his
earning capacity. He clearly stated that because of the eye injury,
he shall not be able to drive vehicle. Besides, due to malunion of
his fractured bone of left forearm, which led to bending of left
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forearm, causing difficulty in working. Thus, the loss of earning
capacity of the respondent No.1 is apparent on the face of the
record.
21. I have carefully gone through the decisions of co-ordinate
benches of this Court so referred by Mrs. Roy, learned counsel for
the appellant. And in view of the decision of Hon’ble Supreme
Court in the decisions referred herein above, I am in respectful
disagreement with the same. Notably, in the case of Md. Nur
Zamal Sk & Anr. (supra) referred by her, the claimant had not
examined any qualified medical practitioner.
22. Since the loss of earning capacity of the respondent
No.1/claimant is 100% as per the Schedule-I of the Act and since
the learned Commissioner had assessed the compensation taking
note of the loss of earning capacity at 80%, there is a requirement
of re-assessment of the compensation, by taking note of the loss
of earning capacity at 100%.
23. Section 4(1)(b) of the Workmen’s Compensation Act,
1923, prescribes the amount of compensation in case of
permanent total disablement. According to the said provision an
amount equal to 60% of the monthly wages of the injured
multiplied by the relevant factor or an amount of Rs.1,20,000/-
whichever is more shall be the compensation.
24. It is to be noted here that the Commissioner for Workmen’s
Compensation relied upon the medical Certificate of the Doctor,
had taken the age of the respondent No.1/claimant as 35 years as
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on the date of accident. The Commissioner correctly took the
relevant factor to be 197.06 and assessed the compensation using
the formula 60/100 x monthly wages x relevant factor x
percentage of loss of earning capacity 60/100 x 2400 x 197.06=
Rs.3,78,355/-.
25. The above said calculation made by the learned
Commissioner appears to be not correct. The correct calculation
herein this case would be 60/100 x 4000 x 197.06 = Rs.
4,72,944/
26. In the result, and in view of foregoing discussions and
findings, I find no substantial questions of law are involved in this
appeal and even if there is, the same has been answered
accordingly. In the result, the appeal stands dismissed leaving the
parties to bear their own cost.
27. The appellant herein shall pay the amount of compensation
assessed above, along with the interest @ 9% per annum from
the date of filing the claim petition i.e. 10.01.2022, to the
respondent No.1/claimant within a period of two months from the
date of receipt of certified copy of this judgment and order. Send
down the record of the learned Commissioner, with a copy of this
Judgment and Order.
JUDGE
Comparing Assistant
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