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1996 Supreme(MP) 190
1996 JLJ 252
S.K. Dubey and Shambhoo Singh, JJ.
United India Insurance Co. Ltd. v. Balmat Singh and another
M.A. No. 202 of 1993; Decided on 9.2.1996.
H.S. Ruprah for appellant; S.K. Rao for respondent No. 1.
Headnote:Workmen‘s Compensation Act,1923 --Ss. 2 (g), 2 (1) and4 (1) (c) -- Sch. IV and Sch. I Pt. II entry 20 -- one leg of cleaner/workman imputed -- employer not engaging workman in some other job -- workman can prove the disablement to be of 100% -- such workman cannot do the job he was doing before accident u workman can claim more damages than provided in the schedule.
It is not disputed that because of the amputation the respondent workman has been incapacitated to perform the duties of Cleaner/Conductor in the truck and has suffered total disablement, in the absence of the evidence that the employer of the respondent has given any alternative employment or the respondent is doing some other job, the finding recorded by the Commissioner that after the accident the injured workman has become permanently disabled, it being a case of total disablement, in the opinion of this Court, workman is not debarred from claiming compensation more than the specified in the Schedule for the loss of earning capacity. [Para 10]
In case of specified instances in the Schedule, without any proof percentage of loss of earning capacity as specified in the Schedule should be accepted and compensation should be awarded, but on that basis a claimant is not debarred from proving that he had suffered higher percentage of loss of earning capacity then the specified in the Schedule. 1950 NLJ 415 dissented from. AIR 1976 SC 222 followed. 1984 ACJ 739, 1992 ACJ 590 and 1993 ACJ 1095 relied on. [Para 11]
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vuqlwph esa fofufnZ"V n`"Vkarksa dh n‘kk esa] fcuk fdlh lcwr ds] vuqlwph esa fofufnZ"V miktZu&lkeFZ dh gkfu dh çfr‘krrk Lohdkj dh tkuk pkfg, vkSj çfrdj vf/kfu.khZr fd;k tkuk pkfg,] fdarq ml vk/kkj ij dksbZ nkosnkj ;g lkfcr djus ds fy, fooftZr ugha gSa fd mls vuqlwph esa fofufnZ"V vf/kd çfr"kr miktZu&lkeFZ dh gkfu gqbZ gSA 1950 ,u ,y ts 415 folEer] , vkb vkj 1976 ,l lh 222 vuqlfjrA 1984 , lh ts 739 1992 , lh ts 590 ,oa 1993 , lh ts 1095 voyafcrA ¿iSjk 11
S.K. Dubey, J.--1. The appellant Insurance Company has filed this appeal under section 30 of the Workman's Compensation Act, 1923 (for short 'the Act') against the order dated 22.2.1993 in W.C. Case No. 78/92 passed by the Commissioner for Workman's Compensation cum, Labour Court, Jabalpur (for short 'the Commissioner').
2. The facts are not in dispute. Respondent No.1, the claimant was employed as a Cleaner/Conductor in Truck No. MPQ-3495 owned by respondent No.2 and insured by the appellant. The said truck met with an accident on 22nd June 1992 wherein respondent No. 1 received multiple injuries as a result of which leg of the claimant was amputated 4" below the knee. The Commissioner after recording evidence determined the loss of earning capacity at 100 percent as respondent was not able to perform his duties which he was discharging, hence awarded the compensation of Rs. 1,05,895/- with interest at the rate of 12 percent from the date of accident till the date of deposit.
3. The only contention raised in this appeal is that the nature of the injury suffered is described at serial No. 20 of Part II of the Schedule I of the Act of which the percentage of loss of earning capacity is statutorily provided as 50 percent. Therefore, according to 50 percent loss of earning capacity, the calculation of the compensation in the manner prescribed in Schedule IV of the Act, which is statutorily fixed by the Legislature ought to have been awarded which cannot be more than Rs. 62,000/- in respect of the injury which caused permanent/partial disablement, particularly when no evidence is adduced that the workman has become unfit for doing any work, reliance was placed on decision of the Nagpur High Court in General Manager, G.I.P. Railway v. Shanker Paltoo (1950 NLJ 415).
4. On evident adduced by the parties, the Commissioner has recorded a categorical finding of fact to the affect that workman is not in a: position to walk, to move nor he can do his job or duties which he was performing prior to the accident. He has been rendered unfit for the work of Cleaner/Conductor. There is no evidence adduced that after amputation the employer has given the injured workman some lighter work or the workman is doing any other job for his livelihood. In the circumstances, the Commissioner following the decision of the Supreme Court in Pratap Narayan Singh Deo v. Shrinivas Sabata and another (AIR 1976 SC 222), determined the percentage of loss of earning capacity as 100 percent, which is a finding of fact.
5. Section 2 (g) of the Act defines 'partial disablement' which means that where the disablement is of a temporary nature, such disablement as reduces the earning capacity of a workman in any employment in which he was engaged at the time of the accident resulting in the disablement, and, where the disablement is of a permanent nature, such disablement as reduces his earning capacity in every employment which he was capable of undertaking at that time; provided that every injury specified in Part II of Schedule I shall be deemed to result in permanent partial disablement.
6. 'Total disablement' is defined in section 2 (1) of the Act, means such disablement, whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement.
Provided that permanent total disablement shall be deemed to result from every injury specified in Part I of Schedule I or from any combination of injuries specified in Part II thereof where the aggregate percentage of the lose of earning capacity, as specified in the said Part II against those injuries, amounts to one hundred per cent or more.
7. Section 4 of the Act deals with the amount of compensation, relevant for the case in hand is clause (c) which is extracted thus:
"4. Amount of Compensation--(1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely ;-
(a) xxx xxx
