Important Point: It is not only the aspect of medical disablement i.e. required to be considered but taking into account the object and the spirit behind the provisions of the Workmen's Compensation Act and the definition of total disablement which means such a disablement whether of a temporary or permanent nature as incapacitates workman for all work, which he was capable of performing at the time of accident resulting in such disablement is required to be taken into consideration.

1. This appeal is directed against the judgment and order dated 18 February 2012 made by the Commissioner, under the Employee's Compensation Act, 1923 (said Act), the operative portion of which, reads thus :

“ORDER

1. The application is hereby partly allowed.

2. The respondents are hereby directed to jointly and severally pay Rs.5,27,880/- (Five Lakhs Twenty Seven Thousand Eight Hundred and Eighty Rupees Only) to the applicants along with interest thereon at the rate of 6% per annum w.e.f. 07/03/2011 from the date of registration of the application till its realization in full.

3. The opponent No.2 is further directed to pay penalty of Rs.2,63,940/- (Two Lakhs Sixty Three Thousand Nine Hundred and Forty Rupees Only) to the applicant with interest thereon at the rate of 6% per annum from the date of the accident i.e. w.e.f. 13/03/2009.

4. The parties to bear their own costs of litigation.”

2. Mr. Sathaye, learned counsel for the appellant (insurance company) submits that this is not a case of ‘total disablement’ but rather this could have been regarded as a case of ‘partial disablement’. Mr. Sathaye submits that in this case, the applicant, who was a driver may have lost the vision of his right eye and the movement of his right leg. However, that by itself, does not render him incapable of carrying on some other or lesser scale of activities and functions, in order to earn his livelihood. Mr. Sathaye submits that the Commissioner, has not at all addressed this issue and the conclusion drawn to the effect that the applicant had suffered total disablement is contrary to the law laid down in the case of Raj Kumar vs. Ajay Kumar & Anr., (2011) 1 SCC 343 Mr. Sathaye submits that compensation in the present case, was required to be determined in terms of section 4(1)(c) of the said Act and not under section 4(1) (b) of the said Act. Mr. Sathaye submits that this is a substantial question of law which is required to be decided in this appeal.

3. Mr. Ingale, learned counsel for the respondent (applicant) submits that the expression 'total disablement' has been statutorily defined under the said Act. In this case, there is no dispute that the applicant was a driver and on account of the permanent disability suffered by him, the applicant is incapable of discharging duties as a driver. Mr. Ingale submits that from this, it is quite clear that the applicant has suffered 'total disablement' as contemplated by section 2(1) (l) of the said Act. He relies upon the decision of the Hon'ble Supreme Court in the case of Pratap Narain Singh Deo vs. Shrinivas Sabata & Anr., AIR 1976 SC 222 and the decisions of this court in the case of Arjun Gangappa Kore vs. Nirmal Bhagchand Bothra & Ors., 2005 (1) Mh. L. J. 179 and Shaikh Salim Ramzan vs. Ashok Beniram Kothawade & Anr., 2011 (2) ALL. MR 301 to submit that there is no substantial question of law involved in this appeal and in any case the appeal warrants

dismissal.

4. The discussion on the aspect of total disablement is contained in paragraph 14 of the impugned judgment and order, which reads thus :

“14. Now, having calculated the age and wages of the applicant we have now to determine whether the applicant suffered permanent disability and total loss of earning capacity. It is an admitted fact that the applicant has suffered permanent disability of 60% as seen from the Permanent Disability Certificate at Exh. U-23, because said Certificate is admitted by the opponent No. 2. It is also elicited in the evidence that the applicant has lost vision of the right eye and movement of the right leg. So, he has sustained permanent total disability. He cannot bend his right at Hip Joint, Knee Joint and Ankle Joint. Now, the applicant was admittedly working as a “Driver”. So, the loss of vision and movement of the right leg due to the injuries would naturally disable him to perform the work of a Driver as he used to do it previously. Hence, it can be safely held that he has suffered total loss of earning cap