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Andhra Pradesh High Court
Judges : G.S.SINGHVI, C.V.NAGARJUNA REDDY
NEW INDIA ASSURANCE COMPANY LTD. - Appellant
Versus
ABDUL KHADER JILANI @ JILANI - Respondent
Decided On : 03/29/2007
C. M. A. 926 Of 2006
Workmens compensation Act, 1923 – Indian Penal Code, 1860 – Section 337 – Accident – Partial Disability / Total Disability – Loss of earning capacity – Compensation awarded – Unnatural offence – A Maruthi car dashed against auto rickshaw – Appeal filed by insurance company – Liability of insurance company – As a result of accident, respondent No. 1 suffered injuries – The police registered Crime under Section 337 IPC against driver of car – Same is pending trial before the competent Court – Whether entries contained in Parts I and II of Schedule ! of Act, 1923 are relevant for assessing the loss of earning capacity for non-schedule injuries, particularly in the context of requirement under explanation-ll to Section 4 (1) (c) (ii) – Respondent No. 1 was employed by respondent No. 2 for driving auto-rickshaw, which was owned by her – Held, As employer has to pay compensation even in respect of injuries sustained which are not mentioned in schedule I immediately after accident legislature thought it fit to confer on the medical practitioner power to assess loss of earning capacity also as that would serve purpose of act better – If employer accepts assessment made by qualified medical practitioner in respect of loss of earning capacity and pays compensation matter ends there – Such assessment is valid and legal and payment made on basis of such assessment is also legal and valid and object with which act was passed is fully achieved – In Vanajakshan (Decd.) v. M. D. Joseph, a Full Bench of Kerala High court held that compensation has to be assessed with reference to loss in earning capacity and not ability to perform duties of job, which was being done by workman at relevant time – In Shankaralal v. G. M. , Central railway, a learned Single Judge of Madhya Pradesh High Court interpreted above reproduced provisions, referred to various decisions and held – Therefore from definitions of partial disablement and total disablement and the decisions referred to above, in a case where injury is a non-scheduled one and there is no amputation, incapacity to work is to be judged in relation to work for which workman was engaged at time of accident and not that such a workman could work on another job of lighter duties assigned to him after accident, on the same pay and emoluments which he was drawing at time of accident – Compensation is to be paid keeping in view the loss of earning capacity as assessed by qualified medical practitioner and courts discretion to award compensation is not controlled by entries contained in parts I and II of Schedule I – Quantum of compensation to be awarded to workman will always depend on assessment made by qualified medical practitioner on issue of loss of earning capacity of workman – Directions issued – Order accordingly.
( 1 ) WHETHER the entries contained in Parts I and II of Schedule ! of the Workmens compensation Act, 1923 (for short, the Act)are relevant for assessing the loss of earning capacity for non-schedule injuries, particularly in the context of requirement under explanation-ll to Section 4 (1) (c) (ii) is the question, which arises for determination in this appeal filed by the New India Assurance company Limited against award dated 4-4-2006 passed by Commissioner for workmens Compensation and Assistant commissioner of Labour-IV, Hyderabad (hereinafter described as the Commissioner)in W. C. No. 15 of 2004. Background Facts:
( 2 ) RESPONDENT No. 1 Abdul Khader Jilani was employed by respondent No. 2 smt. Mulam Bee for driving auto-rickshaw bearing No. AP-11 V-9066, which was owned by her. On 7-2-2004, a Maruthi car bearing no. AP-10d-8730 dashed against the autorickshaw at Sangeet X Roads, Secunderabad. As a result of the accident, respondent No. 1 suffered injuries. The police registered Crime no. 34 of 2004 under Section 337 IPC against the driver of the car. The same is pending trial before the competent Court.
( 3 ) RESPONDENT No. 1 filed an application under Section 22 of the Act for award of compensation to the tune of Rs. 5 lakhs. Respondent No. 2 did not contest the application. The appellant-New India assurance Company Limited filed reply and denied its liability by asserting that respondent no. 2 did not give any information about the accident and also that respondent No. 1 did not have a valid licence to drive the vehicle.
( 4 ) ON the pleadings of the parties, the commissioner framed the following points for consideration:
1. Whether the applicant Abdul Khader jilani @ Jilani met with an accident on 7-2-2004 and sustained injuries in the accident, which arose out of and in the course of his employment as driver on auto bearing No. AP 11 v 9066 under O. P. 1? 2. If yes, what is the percentage of disability and consequent loss of earning capacity of the applicant? and; 3. What is the amount of compensation entitled by the applicant?
( 5 ) IN support of his claim, respondent no. 1 examined himself as A. W. 1 and dr. S. Vasudeva Rao, Civil Surgeon (Specialist Orthopaedician) as A. W. 2. The appellant examined A. " ". makrishna, administrative Officer as R.
( 6 ) AFTER considering the evidence of the parties, the Commissioner held that the applicant had suffered injuries in the accident, which took place on 7-2-2004. He further held that even though the applicant suffered only 45% physical disability, the loss of earning capacity was to the tune of 100%. Accordingly, he awarded compensation of rs. 3,46,904/- to the applicant (respondent no. 1 herein ).
( 7 ) THE appellant challenged the award of the Commissioner by filing an appeal under section 30 of the Act. The learned Single judge noticed the judgments of the Supreme court in Pratap Narain Singh Deo v. Shrinivas sabata of this Court in National Insurance company Ltd. v. Rajesh Heimandge, pasupu/eti Ramarao v. Pothinaboina durgarao, Charan Singh v. G. Vittal Redd/, new India Assurance Company Ltd. v. Sammayya, Gona Sivasankar v. K. Varaprasad, National Insurance Company limited v. D. Sivasankar, as also the judgment of Gujarat High Court in Punambhai khodabhai Parmar v. G. Kenel Construction and of Calcutta High Court in National insurance Company Ltd. v. Susanta Das and observed that in view of apparently conflicting views expressed by different High courts, the matter deserves to be considered by the Division Bench for an authoritative pronouncement. Accordingly, he referred the matter to the Division Bench.
( 8 ) SHRI Naresh Birapaneni, learned counsel for the appellant relied on the judgment of this Court in National Insurance Company limited v. D. Sivasankar and the Full Bench judgment of Karnataka High Court in s. S. Patil v. Erappa Basappa Bhavihala and argued that in the case of an unspecified injury, the Commissioner cannot award compensa
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