CIVIL APPEAL 15 of 2007 on 28 November 2012

1) Whether the applicant is a workman, the accident, occurred while onduty, during the course of employment or not?

2] What are the wage and age particulars to determine the quantum ofcompensation payable and liability ofO.Ps?

6. During the course of enquiry, on behalf of applicantAWs-1 and 2 were examined and got marked Ex.Alto A5.Whereas on behalf of the opposite parties, none examined, butmarked Insurance Policy as Ex.Bl.

7. The learned Tribunal, after hearing on bothsidespassed an order holding that the S-'d opposite party i.e appellanthereinisjointlyandseverallyheldliabletopaythecompensation of Rs. 2,04,379/- to the appellant. Assailing[the]same, the Insurance company i.e appellant has preferred[the]present C.M.A to set aside the impugned order passed by thelearned tribunal.

8. HeardSmt.A.Jayanthi,learnedCounselfortheAppellant and none represented for the respondents.

9. During hearing learned counsel for the appellant[would]contend that the learned tribunal ought to have held that the 4Dr.KMR, JCMA.No.220 of 2023

injured is not skilled person in any filed to assume the loss ofearnings of the injured as 100% and the injured suffered 40%disability as per disability certificate and ought[to][ have][ taken]the loss of earnings of injured as 40% loss of earnings onlyasper disability certificate issued by the medical board.Itisfurther contended the applicant is only a cleaner,butnotskilled person, but the learned tribunal erred in applying[and]relying on the decision in 1997 ACJ 529, which is not applicableto the facts of this case, in the above case the injuredwasadriver and he is a skilled person. Therefore granting[of][ loss][ of]earnings of injured as 100% is not tenable as per law.[But][ the]learned Tribunal granted compensation on mere surmises andnot onthe rational principles of law. Therefore requestedtoconsider the said facts and allow the appeal by relying[on][ the]substantial question of law, which readsas:

i) Whether the lower court is correct in taking theloss ofearnings of the injured as 100% though the disability is only40% as per disability certiifcate?earnings of the injured as 100% though the disability is only40% as per disability certiifcate?

ii) Whether the lower court is correct in applying[the][ decision]reported in 1997 ACJ 529 to the above case thoughtheinjured was not a skilled person and he was only a[cleaner?]

10. The respondents failed to argue the matter to disprove the contentions of the appellant herein.

Dr.KMR, JCMA.No.220 of 2023

11. As per decision of this Court in “National InsuranceCompanyLimited,Ananthapurvs.D.Sivasankarandanother"^ wherein the learned Single Judge, held as[follows:]

"21.Thereisabsolutelynoquarrelwiththisproposition. The whole controversy would be, as to whetherdeviation from sucha percentageiswarranted,andanexercise contemplated under Explanation-II to Section 4(1) c00 was undertaken, before such deviation. In theinstantcase, except that the Commissioner had expressed hisownpersonalviewinthematter,notechnicalorscientificexaminationinthematterwasundertaken,Whenamputation of the leg, below knee, is to result in loss of 50%earning capacity, under Entry-21, of Part-II of Schedule-I,mere stiffness in the legcannot result,in 100%disability.The assessment must be realistic and not imaginary.

12. So also, as per decision of the Hon'ble Apex Court[in]

//IndraBaivs.OrientalInsuranceCompanyLtdand Another"^ wherein it was held as follows:

"28.Inlightof theaforesaiddecisionsandthedefinition of the term"total disablement" as provided byclause (I) of sub-section (1) of section 2 of the Act,itis thefunctional disability and not just thephysicaldisabilitywhichis the determining factor in assessing whether[the]claimant (i.e workman) has incurred total disablement. Thus,if the disablement incurred in an accident incapacitatesaworkman for all work which he was capable of performing[at]

the time of the accident resultingin suchdisablement,thedisablement would be takenastotal forthepurposesofawardof compensationunder section4(l)(b)of theActregardless of the injury sustained being not one as speciifedin Part I of Schedule I of the Act. The proviso to clause (I) of subsection (IJ of Section 2 of the Act does not dilute the import ofthe substantiveclause.Rather,it addstoit by specifyingcategories wherein it shall be deemed that there is permanenttotal disablement

13. Perused the record.

14. The proviso under Section 4 (c] of the Employees Compensation Act, 1923, where reproduced hereunder:

4. Amount of compensation:

a)....

bj

c) Where permanent partial disablement resultfrom the injury,

(i) inthe case of aninjury speciifed in Part II ofScheduleI, such percentage of thecompensationwhichwould have been payablein the case of permanent totaldisablement asis speciifed therein as being the percentageof the loss of earning capacity caused by that injury;[and]

(ii) in the case of an injury not speciifed in Schedule /,such percentage of the compensation payable in the case ofpermanent total disablement as it proportionate to the loss ofearningcapacity(asassessedbythequaliifedmedicalpractitioner) permanently caused by the injury; Dr.KMR, JCMA.No.220 of 2023

15. In the instant case, the learned tribunal taken intoconsiderationof 40%disability,theapplicantworkerispermanentlydisabledandlostearningsascleaner,henceentitled100%lossofearnings.ThereforeassessedthecompensationatRs.2,04,379/-. However,as per disabilitycertificate, which is an admitted fact that the applicant[suffered]40% disability, therefore the loss of earnings also[taken][ into]consideration at 40% only as contended by the learned[counsel]for the appellant and whereas, the learned tribunal has decided100% loss of earnings, which is untenable.

16. Therefore the quantum of compensation payableto the applicant i.e1** respondent under the Act is. Agefactor X 40% of wages= 218.47 x Rs. 1871/- (Basic wages[+]VDA)X40/100Rs.1,63,502.94(roundedoffRs.1,63,503/-), which the 1*^ respondent is entitled to.

17. Having regard to the facts and circumstances of thecase, perusing the record and considering the submissions[of]the both the counsel, this Court is inclinedtoallowedtheappealin-part tothe extent of 40% of disability andalsoconsidered the loss of earnings also at 40% only, instead[of]

100%. The rest of ratio taken by the court below for calculationfor awarding the compensation amounts needs no interferenceby this Court.

18. Accordingly, the C.M.A is partly allowed, while directing therespondent/ applicant to withdrawanamountofRs.1,63,503/-only.The1** respondent/applicantis permitted to withdraw the same, without anyfurther delay, as the claim of the 1®* respondent is[of][ the]year 2007, which is oldest one, so also, the appellant[is][ also]permitted to withdraw the whatever the amountexcesslying in the court deposit, after deducting theamountclaimed by therespondent/ applicant. There shall benoorder as to costs.

Asasequelthereto,miscellaneouspetitions,ifany,pending shall stand closed.

SDI- K. TATA RAODEPUTY REGISTRAR

Note: Para Nos.16 and 18 of the Order Dt.29.09.2023 are modified as per CourtOrder Dt.05.03.2024 made in I.A.No.1 of 2023 in C.M.A.no. 2 of 2023

SDI- K. TATA RAODEPUTY REGISTRAR

//TRUE COPY//

To,

SECTION OFFICER

2. One CC to Smt. A Jayanthi, Advocate [OPUC]3.One CC to Sri G Ramesh Kumar, Advocate [OPUC]4.The Section Officer, V.R Section, High Court of A.P.[at][ Amaravati.]5.Three CD Copies3.One CC to Sri G Ramesh Kumar, Advocate [OPUC]4.The Section Officer, V.R Section, High Court of A.P.[at][ Amaravati.]5.Three CD Copies PsrPRK

vna

HIGH COURT

DATED:29/09/202305/03/2024

AMENDED JUDGMENTCMA.No.220 of 2023

PARTLY ALLOWING THE CMAWITHOUT COSTS