Amputation of a leg below the knee of a driver results in permanent total disablement and entitles the claimant to compensation at 100%.

JUDGMENT

Pushpendra Singh Bhati, J. - The appellant insurance company has preferred this appeal under Section 30 of the Workmen's Compensation Act, 1923 (for short 'WC Act') challenging the judgment dated 1.10.2005 passed by the Workmen's Compensation Commissioner, Sirohi.

2. Brief facts of this case as noticed by this Court are that the claimant/respondent no.1 Chand Mohd. was working as driver on the jeep no.RJ 24/T-0653 owned by the respondent no.2. The said jeep met with an accident and the claimant sustained several injuries resulting into amputation of leg of the claimant below knee.

3. The substantial question of law raised by learned counsel for the appellant insurance company in the matter is that the claimant's leg was amputated below the knee and thus, the percentage of loss of earning capacity was to be taken as 50% as per the WC Act. The medical certificate issued by the District General Hospital, Sirohi was showing the permanent disability to the tune of 70% with respect to the injuries caused to the claimant. The learned authority below computed the loss of income taking into consideration 100% disability. Thus, the substantial question is whether the injury in question which falls under Section 4(1)(c)(i) of the WC Act can be treated as permanent total disablement or would be treated as permanent partial disablement. The question also is as to how the loss in earning capacity shall be computed. Section 4(1)(c) of the WC Act reads as follows :-

"4. Amount of compensation:-

(1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:--

...

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 purposes of sub- clause (ii), the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in relation to different injuries specified in Schedule I;

4. This Court requested learned counsel Mr.Sanjeev Johari, Mr.Jagdish Vyas and Mr.Anil Kaushik appearing for the various insurance companies to assist in this matter as it related to an important issue. Similarly, this Court requested the assistance of advocates Mr.Tribhuvan Gupta, Mr.M.C. Bishnoi and Mr.Rishabh Shrimali to assist in this matter on behalf of the claimants.

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5.1 Learned counsel appearing for the insurance companies submit that since the injury in question is mentioned at S.No.20 and 21 in Schedule-I, Part-II of the WC Act, it cannot be taken beyond the prescribed percentage of loss of earning capacity i.e. 50%.

5.2 Learned counsel appearing for the insurance companies submit that the WC Act has a welfare scheme which is separated from the Motor Vehicles Act and the concept of just compensation arising out of Section 168 of the Motor Vehicles Act will not be applicable in the present case but only the concept of computing the compensation as per Section 4(1) of the WC Act will be taken into consideration. Learned counsel app