#functionaldisability

Indra Bai v. Oriental Insurance Company Ltd. & Another

Civil Appeal 4492/2023

Before Hon’ble Mr. Justice J B Pardiwala J & Hon’ble Mr. Justice Manoj Misra J

Appeal allowed on 17.07.2023

Fact:

Appellant Indra Bai, a loading and unloading laborer was under employment of M/s. Simplex Concrete Company was loading poles/pillars in the truck, the chain pulley broke and the poles fell on the left arm of the appellant resulting in a compound fracture of her left arm as well as damage to the nerves etc. on 03.10.2002. As no compensation was paid by the Company, the appellant filed petition before the Workmen’s Compensation Commissioner. Compensation Commissioner assessed that the appellant had incurred permanent total disability, on finding that her age was 30 years and monthly wages were Rs.3,000/- at the time of the accident, Commissioner computed the compensation payable as Rs. 3,74,364/-. Aggrieved by the order of the Commissioner, M/s. Simplex preferred appeal, before the Madhya Pradesh High Court at Jabalpur.

Workman Compensation Commissioner (WCC):

Workman Compensation Commissioner calculated compensation as per the age factor given in Schedule IV  of Section 4 of the Act which came to Rs. 3,74,364/-.

Appeal by M/s. Simplex before Madhya Pradesh High Court at Jabalpur against Compensation awarded

The High Court vide impugned order dated 31.10.2022, while not finding any fault with reference to any of the findings recorded by the WCC, reduced the compensation taking loss of earning capacity of the appellant Indra Bai at 40%. The amount of compensation was reduced to Rs.1,49,745.60/-.

Aggrieved by the order of the Jabalpur High Court reducing the amount of compensation awarded by the WCC instant Civil Appeal was filed.

Civil Appeal Before Supreme Court (SC) by Appellant Indra Bai

Argument of the Appellant Counsel before SC

1.    Appeal U/s 30 was not to be entertained by the High Court against order of the WCC unless there was substantial question of law.

2.    High Court fell in error by assessing the permanent disability as 40% instead of 100%.

3.    Total disablement, whether temporary or permanent, of a workman is to be adjudged on the basis of his incapacity to perform the work which he was capable of performing at the time of the accident resulting in such disablement.

4.    The evidence brought on record had clearly indicated that the appellant’s left hand was rendered useless therefore she was declared unfit for labor job.

Respondent Counsel didn’t appear before SC:

1.    Despite due service on the respondents, no counsel on behalf of either M/s Simplex or Oriental Insurance Company appeared.

Observation of the Apex Court:

1.     The kind of injury the appellant suffered resulted into permanent disability.

2.     It is the functional disability and not just the physical disability which is the determining factor in assessing compensation whether the appellant has incurred total disablement.

3.     If the disablement incurred in an accident incapacitates a workman for all work which she was capable of performing at the time of the accident resulting in such disablement, the disablement would be taken as total for the purposes of award of compensation.

4.     On the basis of medical certificate provided by the Board, the Commissioner found the appellant unfit for labor in as much as there was complete loss of grip in appellant’s left hand.

5.      Prior to the accident, the appellant worked as a loading/unloading laborer. Even if she could use her right hand, the crux is whether she could be considered suitable for performing her task as a loading/unloading laborer.

6.     Such a task is ordinarily performed by using both hands. There is no material on record from which it could be inferred that the appellant was skilled to perform any kind of job by use of one hand.

7.     It is also not a case where the appellant had the skill to perform her job by using machines which the appellant could operate by using one hand.

8.     In such circumstances, when the Board had certified that the appellant was rendered unfit for labor, there was no perversity in the decision of the Commissioner in awarding compensation by treating the disability as total on account of her functional disability.

9.     Consequently, no question of law, much less a substantial one, arose for consideration by the High Court so as to allow the appeal in exercise of power under Section 30 of the Act.

10.  In our considered view, the High Court erred in partly setting aside the order of the Commissioner and assessing the disability as 40% instead of 100%, as assessed by the Commissioner

Decision:

The appeal filed by the appellant is allowed. The impugned order passed by the High Court is set aside and the award passed by the Workman Compensation Commissioner is restored.

Sarnam Singh v. Shriram General Insurance Company Ltd. & Others

Civil Appeal 3900/2023

Before Hon’ble Mr. Justice Abhay S Oka J & Hon’ble Mr. Justice Rajesh Bindal J

Appeal allowed on 04.07.2023

Fact:

Appellant Sarnam Singh, a gunman at Bharti Hotel Ltd. met with an accident with a tempo on 24.11.2013. He underwent treatment but injury being severe his lower limb was amputated leaving him permanently disabled for the job for which he was employed. At the time of accident, he was aged about 50 years and 05 months drawing salary of Rs. 20,774/- pm and Rs. 800/- towards conveyance allowance.

On account of his inability to discharge his duties for which he was employed his services were terminated w.e.f. 31.5.2015.

Motor Accident Claim Tribunal:

The Motor Accident Claims Tribunal, South District, Saket New Delhi, vide its award dated 18.4.2016, awarded a compensation of ₹ 34,29,800/- as the vehicle was insured, the liability was put on the insurance company. The Tribunal awarded a sum of ₹ 1,50,000/- on account of pain and suffering, ₹ 95,000/- on account of diet, conveyance and attendant charges. In addition, a sum of ₹ 1,00,000/- was awarded on account of loss of amenities.

Appeal before Delhi High Court against award of MACT by Insurance Co.

Shriram General Insurance Company filed appeal before the Delhi High Court against the order of the Tribunal. The High Court vide impugned order dated 25.8.2017, while not finding any fault with reference to any of the findings recorded by the Tribunal, reduced the compensation taking loss of earning capacity of the appellant Sarnam Singh at 80%. The amount of compensation was reduced by ₹ 4,92,205/- and finally the amount determined was ₹ 28,43,000/-. The compensation awarded under other heads was not disturbed.

Aggrieved by the order of the Delhi High Court reducing the amount of compensation awarded by the Tribunal instant Civil Appeal was filed.

Civil Appeal Before Supreme Court (SC) by Appellant Sarnam Singh

Argument of the Appellant Counsel before SC

The order of the High Court reducing the loss of earning capacity to 80% is erroneous as the appellant had suffered amputation of his right lower limb. the functional disability could not be taken as 80%. It should be taken as 100%.

Argument of the Respondent Counsel before SC:

There was error in calculation of the compensation by the Tribunal The same has been corrected by the High Court. There is no error in the order passed by the High Court.

Observation of the Apex Court:

The kind of injury the appellant suffered resulted into permanent disability.

Medical Certificate issued by Board of Doctors is showing disability as 85% with no further possibility of improvement.

Any physical disability resulting from an accident has to be judged with reference to the nature of the work being performed by the person who suffered disability.

The same injury suffered by two different persons may affect them in different ways.

Loss of leg by a farmer or a rickshaw puller may be end of the road as far as his earning capacity is concerned.

Whereas, in case of the persons engaged in some kind of desk work in office, loss of leg may have lesser effect.

Appellant suffered functional disability.

The Tribunal was right in assessing the loss of earning capacity of the appellant at 100% and assessing the compensation accordingly.

The High Court was in error in reducing the loss of earning capacity to 80%,

There is another error in order passed by the High Court in calculating the compensation. The compensation awarded by the Tribunal was taken on ₹ 33,34,800/-.  Whereas, total compensation awarded by the Tribunal was ₹ 34,29,800/- and not ₹ 33,34,800/-

Decision:

The appeal filed by the appellant is allowed. The impugned order passed by the High Court is set aside and the award passed by the Tribunal is restored.