The present appeal is directed against the final order dated 07.08.2018 passed by the High Court of Karnataka, Kalaburgi Bench (hereinafter referred to as “ High Court ”) in Miscellaneous First Appeal No 202250/2017
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(WC) filed by the Appellant praying to call for the records and set aside the judgment and award dated 02.06.2017 passed by Additional Senior Civil Judge and Commissioner for Employees Compensation at Bidar (hereinafter referred to as “ Commissioner ”) in E.C.A No 12/2016.
The appellant filed compensation application being E.C.A No 12/2016 under Section 10 of Employees Compensation Act, 1923 (hereinafter referred to as “ 1923 Act ”) before the Commissioner seeking compensation of Rs. Though it is claimed that the respondent has not seriously disputed the income of the claimant, under these circumstances, the claimants are entitled for enhanced income of Rs.
4,800 X 184.17 which comes to Rs.8,86,560/-. Hence the calculation is Rs.8,86,560 X 20%, which comes to Rs.1,77,312/- and same is awarded. It was also submitted that the appellant was doing the construction work and given the injury suffered by the petitioner, she would not be able to do any other work by which she can earn her livelihood, therefore, the grant of compensation of Rs.2,19,512/- for permanent disability is inadequate and deserves to be enhanced. Under t he Workmen’s Compensation Act, 1923, it is mandatory for the employers to pay compensation to their employees or workmen for a work-related accident, fatality, injury, or illness. An injury sustained by an employee during work that leads to total or partial disability iii.
This also includes any occupational disease or industrial accident that the employee may encounter arising out of or during the course of employment which leads to disability or death.
According to Section 2(1) (g) of the Act ‘ Partial Disablement ’ means, where the disablement is of a temporary nature, such disablement reduces the earning capacity of an employee 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. Whereas, “ Total Disablement ” is defined under Section 2(1)(l) to mean 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 7 accident resulting in such disablement and every injury specified in Part I of Schedule I or combination of injuries specified in Part II of Schedule I where aggregate percentage, as specified in Part II against those injuries amounts to 100% or more. Whilst no amount of money or other material compensation can erase the trauma, pain and suffering that a victim undergoes after a serious accident, (or replace the loss of a loved one), monetary compensation is the manner known to law, whereby society assures some measure of restitution to those who survive, and the victims who have to face 8 their lives.
The percentage of permanent disability is expressed by the Doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity.
This means that the tribunal should consider and decide with reference to the evidence: (i) whether the disablement is permanent or temporary; (ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement, (iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning 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. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity.”
In the case at hand, the appellant is a skilled labour, who was involved in the work of construction of hospital building. But i feel it proper to consider the whole-body disability @ 20% (Rs. 663012 X 20(permanent disability)/100 = Rs. ”
Further, the appellant filed an appeal before the High Court seeking enhancement of compensation and same was allowed in part. The High Court enhanced the compensation to Rs.
Therefore, the Commissioner for Workmen’s Compensation was wrong in holding that the disability of the appellant will have to be treated as 20% disability as the work of an appellant involves lifting heavy weights and the appellant has been rendered incapable from doing such work due to her disability. The Tribunal has to first ascertain what activities the claimant 14 could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life).
On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning 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. , this Court held that :- “Th e loss of earning capacity in the case of tanker driver who had met with an accident, and lost one of his legs due to amputation. The High Court, however, referred to Schedule 1 to the Workmen’s Compensation Act, 1923, and held that loss of a leg on amputation resulted in only 60% loss of earning capacity. This Court set aside the judgment of the High Court, and held that since the workman could no logner earn his living as a tanker driver due to loss of one leg, the functional disability had to be assessed as 100%.” This Court in the case of S.Suresh Vs.
The respondent Insurance Company is directed to pay the enhanced amount of compensation to the appellant along with 9% interest, calculated from the date of making of the application till the date of payment within six 17 weeks from today. Ordered accordingly.
Case Title: CHANDRAMMA Vs. MANAGER REGIONAL OFFICE NCC LIMITED (2022 INSC 1265)
Case Number: C.A. No.-009069-009069 / 2022
