Dismissed

United India Insurance Co. Ltd., Kothagudem. v. Shaik Jeelani and Another

Telangana HC25 Oct 2021CMA/4479/2004

Case brief

AI extract

What is this about?

Appeal against workmen's compensation award dismissed. Commission-er correctly assessed 100% loss of earning capacity for a driver who lost foot grip, displacing him from employment.

What did the court decide?

Appeal dismissed confirming the award dated 30.06.2004; claimant permitted to withdraw balance deposit.

What the court decided

United India Insurance Co. Ltd… — Pension and Retirement Benefits | Telangana HC (2021)

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HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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MONDAY, THE TWENTY FIFTH DAY OF OCTOBER TWO THOUSAND AND TWENTY ONE

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PRESENT

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THE HONOURABLE DR. JUSTICE G.RADHA RANI

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C.M.A. NO:4479 oF 2004

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Appeal under Section 30 of W.C.Act, against the Order/ decree in vn.c.No.27l12l(NE) dated 3010612004 on the file of the court of the commissioner for Workmen's Compensation and Assistant Commissioner of Labour, Khammam.

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Between:

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United lndia lnsurance Co..Ltd., Div_ Office, Kothagudem rep. by its Div. N,4anager through its Regional Office, Hyderabad rep. by its Asstl Managei.

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...APPELLANT/OPPOSITE PARTY NO.2

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AND

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1 Shaik Jeelani, S/o. late Meera, Ex.driver of Lorry bearing No.Ap. j6N-7448, R/o.H.No.3-88, Hamali Colony, Kothagudem, Khammam District, A.p.,

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Z. [aj{Lyg1 ttttandhani, S/o. Satyanarayana lVaniyar, Owner of lorry bearing No.AP.16/V-7448 and business RJo. H,No.7-7-i84, tMedhar Basthi, Kothigudem, Khammam District.

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...RESPONDENTS/APPLICANT/ RESPONDENT NO.1

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CMAMP NO: 15853 OF 2004

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Petition under Section^'1 51 CPC praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to grant stay of Award passed in W.C.No.27 of 2002 dated 30-6-2004 by Commissioner for Workmen,s Compensation and Asst. Commissioner of Labour, Khammam.

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For the Appellant : SRI A.V.K.S.PRASAD, Advocate

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Forthe Respondent No.1 : SRI R.NAGESWARA RAO, Advocate for SRI P.V.MAHESH, Advocate

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The Court delivered the following: JUDGT\4ENT

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THE TION,BLE DT. JUSTICE^{G. RADHA RANT} CNILMISCELLANEOUS^{APPEALNo.4479 of 2004}

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JUDGMENT:

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This appeal is filed by the Insurance^Company -^{Opposite Party} No.2 aggrieved by the Award^{passed by the Commissionerfor} Workmen's Compensation^{and Assistant Commissioner of Labour,} Khammam, in W.C. Case^No.27 of^{2002 (N.E.), dated30.06.2004.} Respondent No.1 is the applicant^{and the respondentNo.2 is the} Opposite Parly No.1.

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The parties are hereinafter referred^{to as they u'ere arrayed} in the WC case.

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The case of the applicant -^{respondentNo.1 was that he was} employed by the Opposite Party^No.1 -^{respondent No.2as a Driver} and worked for four^years as driver on the^{lorry bearingNo.AP16 V} 1448 and was^paid Rs.4,000/-^per month.^{On 31.12.1999at 1.00} P.M., he drove the vehicle to the^godown of Opposite^PartyNo.1 situated in Collagudem Basthi of Kothagudem^{and loadedempty} plastic bags of 25,000 in the lorry, out of which two bundles could^not be loaded as the lorry was filled in full^{capacity and kept those two} bundles in the cabin. The cleaner of the^{lorry.Mohd.Azeez Khan,} while attempting to throw the empty bundles from the cabin into the body of the lorry, accidentally came into contact rvith I I K.V. live electric wire and sustained severe burnt injuries. The applicant tried

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1 DT.GRR,J C,VA lio.4479^of2004

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to rescue the cleaner^{but, the electric shock transmitted throughthe} iron body of the^{lorry, pulled him towards the lorry without allowing} him to be released.^{Due to this, the applicantsustained grievous} injuries on the^{left and right feet and hand fingers'The cleaner died} due to the electric^{shock.The applicant submitted that he lost grip of} his left foot totally^{and partially of right foot fingers andbecame} useless in driving.^{He claimed compensationof Rs'3,00,000/- against} the Opposite^{PartiesNo.1and 2, who were the owner and Insurer of} the lorry, resPectivelY.

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The applicant^{examinedhimselfas PW'1and examinedthe} Doctor, who treated^{and issued the disabilitycertificate,as PW'2 and} got marked Exs.Al to^{A7 on his behalf'Opposite partiesNo'l and 2} had not adduced^{any oral evidencebut, Opposite Party No'l got} marked ExsB.l^{andB2 and Opposite PartyNo'2got markedEx'R-l} - copy ofpolicY.

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On considering^{the oral and documentary evidenceon} record, the Commissioner^{awarded an amountof Rs'3'10'748/-'more} than the amount^{claimed, along with interest'Aggrievedby the said} Award, the Insurance^Company -^{Opposite Party No'2 prefenedthis} appeal contending^{that the Doctor, who issued the disability certificate} was not a^{qualified doctor,therewas no evidence from the applicant's} sideaboutthetreatmenttakenbyhimfromthedateofinjuryon 31.l2.lggg till^{19.03.2003, as such,the disabilitycertificateissued by} the doctor^{oughtnot to have been taken into consideration'the}

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3 Dr.GRR,l CMA No,4479 of 2004

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Commissioner erroneously assessed the loss of eaming capacity at 100% even though PW.2 assessed the disability at 20oh, and prayed to allow the appeal.

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Heard the leamed counsel for the appellant and the learned counsel for the respondent No. I -claimant.

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Learned counsel for the appellant contended that there rvas no nexus betueen the injuries sustained b1, the applicant and the accident. The disability certificate was issued by P'W'.2-Ductor in the year 2003, PW.2 examined the applicant on the datr-- of accident on 31.12.1999, but had not stated about the amputation of toes and no other doctor was examined. The Commissioner wrongly assessed the loss of eaming capacity af l00yo when there was no evidence that the applicant could not do any other work. He t'urther submitted that the applicant was permitted to withdraw Rs.2,00,000/- during rhe pendency of the appeal, and hence, the award may be limited to the said extent and prayed to allow the appeal.

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Sri R. Nageswara Rao, leamed counsel representing Sri P.V. Mahesh, learned counsel on record for r.espondent No.l -claimant submitted that the injury certificate-Ex.A5 was issuecl by pW.2 himself, which would disclose amputation of toes. The evidence of PW.2 would disclose that the applicant could not operate clutch or brakes and he lost grip of both feet, the applicant was removed from service, as such, he sustained 100% functional disability due to loss of

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.1 DT.GRR,J CMA No.4479 of 2004

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employment. The assessment made by the Cornrnissioner was propsr and would need no interference and prayed to dismiss the appeal.

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On perusal of the record, there was no dispute about the employment of the applicant with Opposite Party No.l and with regard to wages accepted by the Commissioner as Rs.2,653/- per month as per the G.O. under Minimum Wages Act, 1948, the age of the claimant and the factor taken. The only dispute was with regard to the assessment of the disability by the Commissioner as 100% when the doctor assessed the disability at20Yo. The applicant was a driver and he sustained burnt injuries during the course of his employment with the Opposite Party No. l. As per the evidence of PW.2, the applicant could not drive the vehicle because of the injuries which resulted in lack ofgrip ofboth feet. The doctor assessed the disability as 20oh basing on Schedule-l Part-ll at serial No.24 of the Employees Compensation Act, 1923 as the 3'd and 4th toes of left foot of the applicant were amputated completely and right foot 5 toes were amputated partially and resulted in permanent partial disablement.

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The leamed counsel for the applicant relied upon the judgments of the Hon'ble Apex Court in Jakir Hussein v. Sabir & Others (Civil Appeal No.2006 of 2015) and Sri Chanappa Nagappa Muchalagoda v. Divisional Manager, Nerv India Insurance Company Limited (Civil Appeal No.9306 of 2019). The Hon'ble Apex Court in both the above cases, relied upon its earlier^judgment

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DnGRR,J CMA No.4479 of2001

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in Raj Kumar v. Ajay Kumar and Others t(2011) I SCC 3431,

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wherein it was held in paragraph 10 of the said.iudgment as follows:

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"Ascertainment ofthe effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to tirst ascenain uhat activities the claimant could carry on in spite ol the permanent disability and what he could not do as a result of the pemanent ability lthis is also relevant for awarding compensurion under the head of loss of amenities ol life). The second step is to ascertain his avocation, profession and nature of work heftlre the accident, as also his age. The third step is to find out whether (r) the claimant is totally disabled from earning any kind oflivelihood, or (ii) whether in spite ol the permanent disability, the clairnant could still effectively carry on the activities and functions, which he rvas earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to eam or can continue to eam his livelihood.

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For example, if the left hand of a claimant is amputated, the permanent physical or functional disablernent may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of eaming capacity may virtually be hundred percent, if he is neither able to dnve or do carpentry. On the other hand, if the claimant was a clerk in govemment service, the loss of his left hand may not result in loss of anployment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of eaming capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. ln fact. there may not be any need to award any compensation under the head of 'loss of future eamings', if the claimant continues in government service, though he may be awarded compensation under the head ol loss of amenities as a consequence of losing his hand. Sontetilnes the injured claimant may be continued in service, but rna1, not fbund suitable firr discharging the duties attached to the posr orlob which he rvas earlier holding, on account olhis disability, and mav therelirre be shifted to some other suitable but lesser post with lesser ernolurnents. in uhich case there should be a limited award under the head ot'loss of lLrture caming capacity. taking note ol the reduced eirming capacity. lt may be noted that when compensation is arvarded by treating the loss of future earning capacity as 100% (or er en anvthing lnore than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount ma).have to be awarded uncler the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may."

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By referring to various other judgments, particularly, pertaining to the workmen working as drivers who met with accidents and were unable to eam their living as drivers due to amputation of

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6 DnCRR,J CMA No,4479 of2004

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legs, it was held that the functional disability has to be assessed as 100%.

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The applicant lost his ability to work as a driver, lost his employment due to lack ofgrip ofboth feet as per the evidence ofthe doctor - PW.2. PW.2 is a Deputy Civil Surgeon working in the Area Hospital Kothagudem, Khammam District. He treated the applicant in the Govemment Area Hospital, Kothagudem and issued disability certificate under Ex.A6 and Medical certiflcate under Ex.A5. Ex.A5 would disclose that the applicant sustained burnt injuries to both feet due to the electric shock and sustained amputation of 3'd and 4th toes of left foot and partial amputation of five toes of right foot. PW.2 - doctor was the competent person to issue the disability certificate as per the definition under Section 2(i) of the Workmen's Compensation Act,1923.

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Considering the evidence of PWs.1 and 2 and the exhibits marked as Exs.A5 and 4,6, the loss of earning capacity is rightly taken as 100% by the Commissioner. The contention of the leamed counsel for the appellant - Insurance company that the applicant can take up any other alternative employment, is not^justified as what is material to be considered is whether the applicant is capable of performing the work which he was doing at the time of accident but not whether he has capacity enough to perform any other work. Hence, I do not find any merit in the contention of the leamed counsel for the appellant -

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DT.GRR,J ('MA n'o.4179 of 2004

Insurance company that the assessment was not made correctly.^As such, the appeal is liable to be dismissed.

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Accordingly, the appeal is dismissed, confirming^the award, dated 30.06.2004, passed in W.C. Case No.27 of^{2002 (N.E.),} by the Commissioner for Workmen's Compensation and Assistant Commissioner of Labour, Khammam. The applicant is^permitted to withdraw the balance amount deposited before the Court below. No order as to costs.

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Miscellaneous Petitions pending, if any, shall stand closed.

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Sd/-K.ISRINIVASA RAO JOiNT REGISTRAR i //TRUE COPYII Go

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SECTION OFFICER

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