IMPORTANT POINTS
(1) It is functional disability and not just physical disability which is determining factor in assessing whether claimant-workman has incurred total disablement.
(2) If disablement incurred in an accident incapacitates a workman for all work which he was capable of performing at the time of accident resulting in such disablement, disablement would be taken as total for the purposes of award of compensation.

JUDGMENT :

(Manoj Misra, J.)

1. Leave granted.

2. This appeal assails the judgment and order of the High Court of Madhya Pradesh at Jabalpur (in short, “the High Court”), dated 31.10.2022, in Misc. Appeal No. 2369 of 2003, whereby the High Court partly allowed the appeal preferred by Oriental Insurance Company Ltd. (R-1 herein) against the order of the Workmen’s Compensation Commissioner/Labour Court, Jabalpur dated 03.09.2003 passed in Case No.134/2002/WC/NonFatal and, thereby, reduced the compensation awarded to the appellant from Rs.3,74,364/- to Rs.1,49,745.60/- by treating the permanent disability of the appellant as 40% in place of 100 %.

FACTS:-

3. The appellant was employed as loading and unloading labourer with M/s. Simplex Concrete Company (R-2 herein) for Truck No. MPF 7567, which was insured with R-1. On 03.10.2002, while the appellant was loading poles/pillars in that truck, the chain pulley broke and the poles fell on the left arm of the appellant resulting in a compound fracture of her left arm as well as damage to the nerves etc. By claiming that due to the injury, the appellant has suffered permanent total disablement, as there was no grip left in her left arm, compensation was sought from R-2. R-2 claimed itself to be insured with R-1 and requested the appellant to claim compensation from R-1. As no compensation was paid, the appellant filed petition before the Workmen’s Compensation Commissioner (in short, “the Commissioner”) under the provisions of the Workmen’s Compensation Act, 1923, now known as “the Employee’s Compensation Act, 1923” (in short, “the Act”).

4. Before the Commissioner, R-2 did not dispute the facts set up in the claim petition, rather he claimed the benefit of insurance cover under a policy issued by R-1.

5. R-1 (the Insurer), though did not deny existence of an insurance cover in favour of R-2, took usual pleas to defeat the claim which need not be elaborated here, as there is no appeal by R-1 against the order of the High Court fastening liability on it under the insurance policy.

6. During the course of the proceedings before the Commissioner, the appellant examined herself. She proved that, – she was working as a loading /unloading labourer of Truck No. MPF 7567, owned by R-2 and insured with R-1; on the fateful day while she was loading poles/pillars on the said truck along with other labourers, the chain pulley broke and the poles fell on her, resulting in severe injuries to her left hand; she was admitted to the hospital for a period exceeding 10 days and due to the injuries sustained in that accident, her left hand has become completely ineffective because of no movement in the fingers of her left hand on account of nerve damage. Various documents including salary certificate (Exh. P-5), discharge card (Exh. P-7) and disability certificate issued by Medical Board (Exh. P-8) were produced to support her claim.

7. The appellant also examined Dr. Ravi Shankar Chowdhary, an Orthopaedist and a member of the District Medical Board (in short, “the Board”), who deposed that on 22.10.2002 the appellant gave an application to the Board to ascertain the percentage of her disability. Whereupon, she was examined and it was found that there was a compound fracture in her left arm and plates and screws were installed in her radial and ulna bone after operation, as a result, the fingers of her left hand had lost movement and the muscles had become thin. The doctor proved that a certificate indicating permanent disability to the extent of 50% with a declaration that she is unfit for labour work has been issued by the Board.

8. Neither R-1 nor R-2 produced evidence to rebut the evidence led by the appellant.

COMMISSIONER’S FINDINGS

9. The Commissioner upon consideration of the evidence on record found the appellant rendered permanently unfit to do labour work, which she was doing at the time of the accid