Validity of disability certificate and its impact on compensation calculation

1. This appeal is filed by the applicant in ECC 379/2017 on the file of the Employees Compensation Commissioner, Thiruvananthapuram, as per order dated 27.5.2020, awarding a compensation of Rs.2,57,025/- along with interest at the rate of 12% per annum to the appellant/applicant.

2. The appellant herein filed the above application before the Employees Compensation Commissioner, claiming compensation on account of the injury sustained by him while working as paid driver of the autorickshaw bearing No.KL-01/AX 7463 owned by the 1st respondent in the claim petition. In the incident the appellant/applicant sustained fracture Calcaneum and fracture left fibula. After evaluating the available evidence, the Commissioner found that he is entitled to get a compensation of Rs.2,57,025/-. While arriving at the above amount, the Commissioner has taken the monthly income of the appellant as Rs.8000/- and also on the basis that the appellant sustained 30% loss of earning capacity.

3. In Ext.A5 disability certificate produced by the applicant, the disability of the appellant is shown as 45%. The Commissioner observed that the disability assessed was on higher side. The above finding of the Commissioner, disbelieving Ext.A5 and fixing the disability at 30% was seriously challenged by the learned counsel for the appellant. According to him, the Commissioner ought to have accepted the disability as noted in Ext.A5 and also that without assigning valid grounds, Ext.A5 was discarded. On the other hand, the learned counsel for the respondent would argue that there is nothing wrong in limiting the disability at 30%. Therefore, he prayed for dismissing the appeal.

4. Now the point that arise for consideration is the following: Whether the Employees Compensation Commissioner was justified in ignoring Ext.P5 disability certificate and the same has resulted in miscarriage of justice? 5. The point:- In support of his argument, the learned counsel for the appellant relied upon the decision of the Hon'ble Supreme Court in Chanappa Nagappa Muchalagoda v. Divisional Manager, New India Insurance Company Limited, AIR 2020 SC 166. In the above case, the appellant was working as driver of a truck with sand which met with accident resulting in serious injuries in his right leg. Thereafter he could not continue his avocation as a driver of a heavy motor vehicle. He was required to use a walking stick and could not lift heavy objects. The Doctor certified that he has suffered 37% disability in his whole body and could not perform the work of a truck driver any longer. While distinguishing the actual physical disability and loss of future earning capacity, the Apex Court held that in the above case though the physical disability assessed is only 37%, the functional disability was assessed as 100%. For arriving at the above conclusion, the Apex Court held that :

“.......The aforesaid judgments are instructive for assessing the compensation payable to the Appellant in the present case. As a consequence of the accident, the Appellant has been incapacitated for life, since he can walk only with the help of a walking stick. He has lost the ability to work as a driver, as he would be disqualified from even getting a driving license. The prospect of securing any other manual labour job is not possible, since he would require the assistance of a person to ensure his mobility and manage his discomfort. As a consequence, the functional disability suffered by the Appellant must be assessed as 100%.”

6. In the decision in Indra Bai v. Oriental Insurance Company Ltd and Ors, AIR 2023 SC 3478, the appellant was employed as loading and unloading labourer with the respondent Company. During the course of employment she sustained compound fracture of her left arm as well as damage to the nerves. As per the certificate issued by the Doctor, she had permanent disability to the extent of 50% with a declaration that she is unfit for labour work. The Commissioner as