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2012 Supreme(Mad) 3701
High Court of Judicature at Madras
ARUNA JAGADEESAN, J.
The Oriental Insurance Company Limited Chennai
Versus
R. Mahalingam & Another
CMA.Nos.2552 & 3087 of 2003
Decided On : 30-08-2012
For the Appellant:R. Sivakumar, Advocate.
For the Respondents:R1, U.M. Ravichandran, Advocate.
Headnote:WORKMEN’S COMPENSATION ACT - Section 2(1)(1), 4A, 30 - CMA filed by both parties against order of commissioner of WC - Held, where a person is employed by the employer to do a particular item of work, he must be held to be having the capability of performing such work and the burden is on person who asserts otherwise to establish that claimant was having capability or performing any other work. There is no such evidence in this case - Held, as per Section 2(1) (1), held even if a workman suffers physical disablement to a lesser extent say 20 per cent, 40 per cent, 50 per cent etc. if any physical disablement itself totally incapacitates the workman from doing any work which he was capable of performing before the accident, it can be treated as total disablement - Mere fact that an injury is included in Part II of Schedule I of Workmen Compensation Act does not and cannot, ipso facto, lead a functionary under the Workmen Compensation Act, to conclusion that no total disablement has resulted at all - Claimant is entitled to compensation on basis he suffered 100 per cent disability and the wages as computed by the labour Deputy Commissioner at Rs. 4000/- p.m. remain unaltered.
1. These Civil Miscellaneous Appeals are filed against the order dated 30.5.2003 made in WC.No.35/2002 by the Labour Deputy Commissioner-II for Workmen's Compensation, Chennai-6 by the Insurance Company and the claimant respectively.
2. The claimant, who is the Appellant in CMA.No.3087/2003, filed the above said claim petition, claiming a compensation of Rs.5 lakhs for the injuries sustained by him on 22.5.2001 at about 5.15 a.m., while he was driving the lorry bearing Reg.No.KA-01-A-3346 owned by the 1st Respondent in CMA.No.3087/2003 and insured with the Appellant Insurance Company. After conducting enquiry, with due notice to the opposite parties therein, the Labour Deputy Commissioner awarded a sum of Rs.2,99,491/-and directed the Insurance Company to deposit the award amount within a period of 30 days, in default, the amount would carry interest at 12 per cent p.a. from the date of the claim petition till the date of deposit.
3. The impugned award is assailed by the Appellant Insurance Company on the ground that the monthly wages taken by the Labour Deputy Commissioner at Rs.4000/-is erroneous and the loss of earning capacity fixed at 60 per cent by the Labour Deputy Commissioner is also not proper.
4. On the other hand, the claimant challenged the impugned award on the ground that the Labour Deputy Commissioner ought to have taken the total disablement as 100 per cent, as the physical disablement suffered by the claimant totally incapacitated him from doing any work, which he was capable of performing before the accident. It was further contended that the Labour Deputy Commissioner ought to have awarded interest at the rate of 12 per cent from the date of the accident under Section 4(A)(3) of the Workmen's Compensation Act without imposing any condition.
5. The Labour Deputy Commissioner has fixed the monthly income of the claimant at Rs.4000/- and taking into account the disability assessed by the Doctor at 60 per cent computed compensation at Rs.2,99,491/-, which is under challenge by both the Insurance Company and the claimant.
6. Mr. R.Sivakumar, the learned counsel for the Appellant Insurance Company has submitted that the impugned award passed by the Labour Deputy Commissioner is not correct and deserved to be set aside. It is submitted that the income of the claimant at the relevant point of time ought to have been fixed at Rs.2849/-, which is the minimum wages and that in the absence of definite evidence, the minimum wages ought to have been taken in to account while computing the compensation and the Labour Deputy Commissioner erred in fixing the monthly income at Rs.4000/- p.m. without any basis.
7. The learned counsel for the Appellant Insurance Company would submit that the Labour Deputy Commissioner erred in not assessing the functional disability before determining the loss of future earning capacity. He would submit that the court should ascertain the actual extent of permanent disability of the claimant based on the medical evidence and then, determine whether such permanent disability has affected his earning capacity and if so to what extent and then adopt such percentage for determination of compensation. In support of his contention, the learned counsel relied on the decision reported in 2011-ACJ-1 (Raj Kumar vs. Ajay Kumar and another).
8. Mr.U.M.Ravichandran, the learned counsel for the Appellant/claimant contended that the Labour Deputy Commissioner committed an error in not taking into consideration the permanent disability as 100 per cent. It is submitted that the claimant is not in a position to discharge his duty as a driver, as he sustained fracture of femur, due to which there was malunion of fractured bones and there is shortening of leg by 1 ½" and wasting fibrus left thigh muscles and hip flexion to an extent of 80 degree, abduction to an extent of 30 degree and left knee flexion to an extent of 60 degree as against normal 140 degree. He is able to walk only with a walking stick
