THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN
CMA.Nos.1714 and 1719/2005
1.D.Shanmuga Anand Appellant-CMA.1714/05 and
1.M.Balasubramanian R1-CMA.1714/05 and
2.Bajaj Allienze General Insurance Co. Limited
Chennai-6 R2-CMA.1714/05 and
Prayer:- These Civil Miscellaneous Appeals are filed against the Judgement and Decree dated 7.3.2005 made in WC.Nos.184/2004 by the learned Deputy Labour Commissioner I (Commissioner for Workmen's compensation I) Chennai-6.
For Appellant : Mr.U.M.Ravichandran-CMA.1714/05
For Respondent : Mr.N.Sampath-R2-CMA-1714/05
These Civil Miscellaneous Appeals are filed against the Judgement and Decree dated 7.3.2005 made in WC.Nos.184/2004 by the learned Deputy Labour Commissioner I (Commissioner for Workmen's compensation I) Chennai-6 by the claimant and the Insurance Company respectively.
2. The Appellant in CMA.No.1714/2005, while working as the driver of the lorry belonging to the 1st Respondent in CMA.No.1714/2005, which was insured with the 2nd Respondent in CMA.No.1714/2005/appellant in CMA.No.1719/2005, suffered injuries in an accident that occurred on 1.12.2003 at about 1.30 p.m. So, he filed an application under the Workmen Compensation Act 1923 (for short 'the Act') seeking compensation of Rs.7,00,000/- from the Respondents. 1st Respondent remained exparte. The 2nd Respondent Insurance Company filed its counter contesting the claim. In support of his case, the Appellant/claimant examined himself as PW.1 and examined the Doctor who assessed the disability suffered by the claimant as PW.2 and marked Exs.P1 to P14. On the side of the Insurance Company, RW.1 was examined and the disability certificate issued by the Doctor was marked as Ex.R1 with objection, as the Doctor, who issued the said certificate, was not examined.
3. The Deputy Labour Commissioner, having held that the Appellant/claimant sustained injuries out of and during the course of his employment with the 1st Respondent and suffered a permanent disability resulting in loss of earning capacity of 70 per cent, awarded Rs.3,64,409/- as compensation and directed the 2nd Respondent Insurance Company to deposit the amount within 30 days from the date of the award, failing which directing the 2nd Respondent to pay interest at the rate of 12 per cent p.a. from the date of the accident till the date of deposit.
4. It is contended by the 2nd Respondent Insurance Company that the employee and employer relationship has not been established by the claimant and in such circumstances, without considering this aspect, the Deputy Labour Commissioner's finding in favour of the claimant is unsustainable. The learned counsel for the Insurance Company would point out that the Deputy Labour Commissioner failed to take note of the fact that the claimant has not produced any records to establish that he was working as a driver under the 1st Respondent/owner.
5. It is the categoric case of the claimant that he was working as a driver under the 1st Respondent/owner and at the time of the accident, he was driving the Omni Van bearing Reg.No.TN-07-Q-4995 which belonged to the 1st Respondent/owner and the accident occurred in the course of his employment. Even though he has not produced any document to show that he was working as a driver under the 1st Respondent, however, he had issued a legal notice dated 3.3.2004 in Ex.A9 to the Respondents 1 and 2 stating the above facts. In spite of the receipt of the said notice, the Appellant and the 1st Respondent has not come forward to issue any reply repudiating the allegations referred in the said notice. Even in the counter filed by the 2nd Respondent Insurance Company, no serious dispute has been raised repudiating the averments made by the claimant. Taking note of the above facts and as there was no material or evidence in rebuttal of the claim of the Appellant/ claimant on this aspect, the Deputy Labour Commissioner has come to the conclusion that the employee and employer relationship was established and the accident had occurred in the course of employment of the claimant as driver.
6. The learned counsel for the Appellant/claimant placing reliance on the decision of this court in 2004-1-TNMAC-158-DB (M/s.Guptha Enterprises, Madras Vs. Irusappan and another) and 2007-2-TNMAC-49 (Anjaya and another Vs. L.Lakshmi and two others) contended that the said findings of the Deputy Labour Commissioner being based on evidence placed on record, this court cannot interfere with the said findings recorded by the Deputy Labour Commissioner.
7. There is every force in the submission made by the learned counsel for the Appellant/claimant. The findings of the Deputy Labour Commissioner that there was employee and employer relationship and the accident has occurred during the course of employment are arrived at based on evidence and moreover, they are findings of fact on appreciation of evidence and the same cannot be interfered with in an appeal filed under Section 30 of the Workmen Compensation Act, 1923.
8. The contention of the learned counsel for the Appellant/ claimant Mr.U.M.Ravichandran is that PW.2 Dr.J.R.R.Thiagarajan has certified that the Appellant was totally disabled as far as his functioning as a driver was concerned and therefore, the disability of the Appellant as driver was 100 per cent and the Deputy Labour Commissioner was in error in fixing the loss of earning capacity of the Appellant at 70 per cent. He would submit that the Deputy Commissioner ought to have fixed the disability of the Appellant as 100 per cent and relied on the decision rendered in the case of Pratab Narain Singh Deo Vs. Shrinivas Sabata and another (1976-ACJ-141).
9. On the other hand, Mr.N.Sampath, the learned counsel for the Insurance Company contended that inasmuch as the assessment of permanent disability is disputed by either of the parties, the Deputy Labour Commissioner ought to have referred the claimant to the Medical Board. He placed reliance on the decision of the Honourable Supreme Court reported in 2010-CIJ-219-SC-2 (Palraj Vs. Divisional Controller, NEKRTC) in support of his contention that while computing compensation for disabilities being suffered by a workman in the case of his employment, it is the functional disability resulting in loss of earning capacity, which is the criteria and when a workman suffered injury which is not specified in Schedule I to the Act, compensation has to be assessed on such per centage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity, permanently caused by the injury as assessed by a qualified medical practitioner.
10. The learned counsel for the Insurance Company would further contend that the physical disability of the claimant has been determined to be 70 per cent in the disability certificate Ex.A13, whereas it has been assessed as 10 per cent in Ex.R1 and in these circumstances, as the said injuries do not find place in the list of Schedule I of the Workmen Compensation Act, the Appellant is not entitled to contend that he has suffered total disablement under Section 2(1)(l). The learned counsel would submit that even according to the disability certificate submitted by the claimant, the total disablement of 100 per cent cannot be taken.
11. In this case, though the certificate produced by the Insurance Company shows that the Doctor has assessed the disability of the claimant as 10 per cent, but the Doctor, who issued the said certificate, has not been examined. It is not known on what basis and in what circumstances he had assessed the permanent disability of the claimant as 10 per cent.
12. In deciding the loss of earning capacity, the basic document is the certificate by a qualified medical practitioner. The Commissioner should adjudicate the percentage of loss of earning capacity after taking into consideration the medical certificate as well as other evidence. A medical certificate shall not be used without examining the medical officer who issued the certificate, unless the parties agreed to be bound by the certificate. In order to make the medical certificate legally admissible, the Doctor giving the same must come and give evidence in support of the certificate. The medical certificate is not a document which can be admitted in evidence without proof under any of the provision of the Evidence Act or under any of the provisions of the Workmen Compensation Act. In this case, no special reasons are shown to dispense with the examination of Doctor who issued Ex.R1 medical certificate. Therefore, the certificate having not proved in the manner known to law cannot have any probative value.
13. It is relevant to point out here that loss of earning capacity is different from loss of physical capacity. Earning capacity is capacity to earn money. The incapacity for work is to be ascertained by reference to his incapacity to earn wages. There is no difficulty in determining the loss of earning capacity in case of a scheduled injury. Where the injury is not included in the Schedule, the reduction or total incapacity to earn his wages has to be ascertained from the evidence placed on record.
14. The evidence on record indicated that the Appellant/claimant was unable to perform the work that he was earlier doing. The Appellant was employed as a driver. The accident has caused an injury to him which has resulted in malunited fracture of wrist and malunited tibia on the right leg, more particularly, there has been loss of bone segment on the right tibia. This handicap has resulted in decreasing the muscle power of the limbs as also its movements. The right leg is essential for driving and is used for accelerating the vehicle as well as for applying brakes. Likewise, the left arm is essential for holding and operating the steering wheel. In such circumstances, when there is evidence on record to show that the Appellant was unable to carry out the work of driving the vehicle, it obviously means that he had suffered an injury which resulted in complete disablement.
15. The only question that remains is whether there was any other work which he was capable of performing at the time of the accident. There is a significant absence of evidence to suggest or indicate that he had the capability of performing any other work at the time of the accident. In the absence of any such evidence, it cannot be presumed that he had the capability of performing any other work.
16. 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 the person who asserts otherwise to establish that the claimant was having the capability of performing any other work. There is no such evidence in this case.
17. Section 2(1)(l) of the Workmen Compensation Act defines 'total disablement" as such disablement, whether temporary or permanent nature as incapacitates a workman for all work which he was capable of performing at the time of accident resulting in such disablement. Therefore, even if a workman suffers physical disablement to a lesser extent say 20 per cent, 40 per cent, 50 per cent, etc.; if such 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.
18. In Pal Raj Vs. Divisional Controller, North East Karnataka Road Transport Corporation (2010-CIJ-SC-2) the decision cited by the learned counsel for the Insurance Company , although the claimant lost the use of his legs for the purpose of driving a vehicle, he was posted as a peon by the Respondent/owner. In the said view of the matter, the Honourable Supreme Court held that although the Appellant lost the use of his legs for the purpose of driving a vehicle, which could be said to be a total disablement as far as driving of a vehicle is concerned, he was in a position to earn a living other than by functioning as a driver, which in fact, he is currently doing, having been posted as a peon by the Respondent.
19. The learned counsel for the Appellant/claimant drew the attention of this court to the decision of the Four Judges Bench of the Honourable Supreme Court in Pratab Narain Singh Deo Vs. Shrinivas Sabata (1976-ACJ-141-s) which arose on the claim of compensation by a carpenter whose one arm was amputated. The Honourable Supreme Court was called upon to decide whether the injury, undoubtedly a scheduled injury to Part II, has resulted in total disablement as defined under Section 2(1)(l) of the Workmen Compensation Act to compute the compensation. The Honourable Supreme Court undoubtedly answered the question affirmatively and held that the workman had suffered total disablement.
20. A recent decision of the Honourable Supreme Court in K.Janardhan Vs. United India Insurance Company Limited (2008-ACJ-2039-SC), the Honourable Supreme Court was again called upon to consider this very question. That was a case where the employee, a driver, had suffered injuries which resulted in amputation of right leg upto knee joint. The Honourable Supreme Court took note of the fact that the claimant could not do the work of a driver. The Honourable Supreme Court extracted paragraph 5 of the Pratab Narain Singh Deo 's case (1976-ACJ-141-SC) and proceeded to observe as follows:- "4. Applying the ratio of the cited judgement to the facts of the present case we are of the opinion that the Appellant herein has also suffered a 100% disability and incapacity in earning his keep as a tanker driver as his right leg had been amputated from the knee. Additionally, a perusal of Sections 8 and 9 of the Motor Vehicles Act, 1988 would show that the Appellant would now be disqualified from even getting a driving licence."
21. It is to be noted that the Honourable Supreme Court in K.Janardhan's case (2008-ACJ-2039-SC) has conveyed an indication as to how the decision in Pratab Narain Sing Deo's case has to be understood and how the ratio has to be applied.
22. In another recent decision of the Honourable Supreme Court in the case of S.Suresh Vs. Oriental Insurance Company Limited and another (2010-ACJ-487) where the driver of truck suffered amputation of right leg just below knee and the Doctor stated that the workman suffered 93 per cent permanent disability in his right leg and he will not be able to do the job of driver or any other job, because he will not be able to stand or walk without support, the Commissioner found that workman suffered a loss of 100 per cent of his earning capacity, but the High Court held that injury being specified in Schedule I, medical opinion could not be relied and applying the percentage of loss of earning capacity, reduced compensation by 50 per cent. The Honourable Supreme Court disagreed with the High Court and held that the claimant was rendered unfit for work of a driver which he was performing at the time of the accident and therefore, lost 100 per cent of his earning capacity, more so, when he is disqualified from even getting a driving license under the Motor Vehicles Act and restored the award passed by the Commissioner.
23. It follows from the decisions cited supra that the mere fact that an injury is included in Part II of Schedule I of the Workmen Compensation Act does not and cannot ipso facto lead a functionary under the Workmen Compensation Act to the conclusion that no total disablement has resulted at all. In each case, the question will have to be considered whether the disablement has incapacitated the person to perform all work which he was capable of performing at the time of the accident. We have to see whether he had capability, experience, expertise and competence for performance of such other work also. Merely because a person may be able to and can possibly perform certain other works, it would be irrational to assume that a driver, who has been disabled to do driving, can perhaps work as a shop keeper or to do some other work (for which he has no competence or experience) he will not be entitled to claim that he is totally disabled under Section 2(1)(l) of the Workmen Compensation Act. In the circumstances of this case, I am satisfied that total permanent reduction in earning capacity to the extent of 100 per cent has resulted and not merely 60 per cent reduction in earning capacity as determined by the Deputy Commissioner of Labour.
24. The Appellant/claimant is 25 years old young person. The injuries sustained by him has resulted not only in permanent deprivation of his earning capacity, but has also resulted in impairment of the quality of life which the Appellant can aspire to lead hereafter.
25. The learned Deputy Commissioner for Labour has fixed the monthly income of the Appellant as Rs.4000/- which is not assailed by the Respondents. Therefore, the Appellant is entitled to the compensation of Rs.5,20,584/- (Rs.4000*216.91*60/100*100/100).
26. It was contended by the learned counsel for the Appellant that the Deputy Commissioner for Labour erred in not awarding interest at the rate of 12 per cent p.a. from the date of the accident under Section 4A(3) of the Workmen Compensation Act. Mr.U.M.Ravichandran, the learned counsel for the Appellant has relied on the decision of this court reported in 2010-2-TNMAC-80-DB (N.Ganesan and Thilagavathi and others) in support of his submission that the liability to pay interest on compensation is from the date of the accident. The Division Bench of this court has held after making a reference to the law laid in Larger Bench decision of the Honourable Supreme Court reported in Pratab Narain Singh Deo Vs. Srinivas Sabata and another (1976-1-SCC-289) and Kerala State Electricity Board Vs. Valsala K (2000-ACJ-5) that interest for compensation amount would accrue 30 days after the date of the accident and not from the date of quantification/orders passed by the Commissioner for workmen compensation.
27. In view of the settled position of law, it has to be held that the starting point for payment of compensation in the Workmen Compensation Act would be the date of the accident and not from the date of adjudication of the claim and therefore, the liability to pay the interest would arise from the date of accident and the interest on the amount of compensation as required to be paid under Section 4A(3) (a) of the Act, is required to be paid on completion of one month from the date of the accident and not from the date of adjudication.
28. For the reasons stated above, the appeal in CMA.No.1714/2005 filed by the claimant succeeds and the appeal in CMA.No.1719/2005 filed by the Insurance Company fails. The Appellant is entitled to the compensation of Rs.5,20,584/-. It is held that the Appellant Insurance Company would be liable to pay interest on compensation of Rs.5,20,584/- as contemplated under Section 4A(3)(a) of the Act from the date of the accident, more particularly, on completion of one month from the date of the accident. Accordingly, the appeal in CMA.No.1714/2005 filed by the claimant is allowed and the appeal in CMA.N0.1719/2005 filed by the Insurance Company is dismissed. However, in the facts and circumstances of the case, there will be no order as to costs.
1.The Deputy Labour Commissioner I (Commissioner for Workmen's compensation I) Chennai-6
2.The Record Keeper, VR Section, High Court,