SRI CHANAPPA NAGAPPA MUCHALAGODA versus DIVISIONAL MANAGER, NEW INDIA INSURANCE COMPANY LIMITED on 10 December 2019

SUPREME COURT REPORTS

[2019] 14 S.C.R.

ASRI CHANAPPA NAGAPPA MUCHALAGODA

v.

DIVISIONAL MANAGER, NEW INDIA INSURANCE

COMPANY LIMITED

B(Civil Appeal No.9306 of 2019)

DECEMBER 10, 2019

[UDAY UMESH LALIT AND INDU MALHOTRA, JJ.]

Workmen’s Compensation Act, 1923 – s.4 and relevant factorCof 201.66 as per Schedule IV – Enhancement of the compensation– The appellant-driver, while driving a truck lost control of it due toan axle cut and dashed against a rock on the side of the road – Asa consequence, the appellant suffered grievous injuries all overhis body – Appellant underwent hospitalization for 65 days – Hisright leg was permanently injured, which resulted in completeDdisability to continue his vocation as a driver of a heavy motorvehicle – Appellant filed claim against the truck owner and theInsurance Company – Commissioner awarded Rs.1,81,494/- ascompensation – High Court enhanced the compensation to Rs.2,90,390/- with interest @ 12% p.a. payable from one month afterEthe date of the accident – On appeal, held: The medical evidenceon record corroborated appellant’s inability to stand for a longperiod of time or even fold his legs – Appellant was incapacitatedfor life and lost his ability to work as a driver – The functionaldisability suffered was assessed as 100% and relevant factor was201.66 as per Schedule IV to the Act – Consequently, theFcompensation payable to the appellant worked out to Rs. 4,83,984/- – Further, a lump sum amount of Rs.1,00,000/- awarded towardshospitalization and medical expenses incurred by the appellant.

Allowing the appeal, the Court

GHELD: 1. Various Judgments of the Supreme Court areinstructive for assessing the compensation payable to theappellant in the present case. As a consequence of the accident,the Appellant has been incapacitated for life, since he can walkonly with the help of a walking stick. He has lost the ability towork as a driver, as he would be disqualified from even getting aHdriving license. The prospect of securing any other manual labour SRI CHANAPPA NAGAPPA MUCHALAGODA v. DIVISIONAL MANAGER,NEW INDIA INSURANCE COMPANY LIMITED

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job is not possible, since he would require the assistance of aperson to ensure his mobility and manage his discomfort. As aconsequence, the functional disability suffered by the Appellantmust be assessed as 100%. [Para 11][562 A-B]

Raj Kumar v. Ajay Kumar and Ors. (2011) 1 SCC 343: [2010] 13 SCR 179; K. Janardhan v. United IndiaInsurance Co. Ltd. (2008) 8 SCC 518 : [2008] 8 SCR157; S. Suresh v. Oriental Insurance Co. Ltd. & Anr.(2010) 13 SCC 777 : [2009] 14 SCR 990 - relied on.

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2. The judgment of the High Court affirmed on assessingthe income of the Appellant at Rs. 4,000/- p.m. as per the evidenceof his employer. The “functional disability” of the Appellant isassessed as 100%, and the relevant factor would be 201.66 asper Schedule IV to the Workmen’s Compensation Act, 1923.Consequently, the compensation payable to the Appellant wouldwork out to Rs. 4,83,984/- under Section 4 of the Act. [Para12][562 C-D]

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3. The Appellant has not been awarded any amount towardsreimbursement of the medical expenses incurred by him, eitherby the Commissioner, or by the High Court. The Appellantunderwent hospitalization for a period of 65 days’ for medicaltreatment and surgical operations. This Court deems it just andappropriate to award a lump sum amount of Rs. 1,00,000/- towardshospitalization and medical expenses incurred by the Appellant.[Paras 13][562 D-E]

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9306of 2019.

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From the Judgment and Order dated 06.10.2016 of the HighCourt of Karnataka, Dharwad Bench in M.F.A. No. 1569 of 2008 (WC).

H. Chandra Sekhar, Mrs. Rekha Chandra Sekhar, Karri VenkataReddy, Advs. for the Appellant.

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ADr. Meera Agarwal, Ramesh Chandra Mishra, Advs. for theRespondent.

The Judgment of the Court was delivered by INDU MALHOTRA, J.

B1. Leave granted.

2. The present Civil Appeal has been filed by the Appellant –Claimant for enhancement of the compensation awarded to him by theKarnataka High Court (Dharwad Bench) under the Workmen’sCompensation Act, 1923.

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3. The Appellant – a driver of heavy vehicles, was employed byone Sekar Santharam. On 13.05.2006, while he was driving a truck bearingNo. MH-08H-0390 loaded with sand from Islampura towards Ratnagiri,he lost control of the truck due to an axle cut, and dashed against a rockon the side of the road.

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As a consequence, the truck turtled thrice, and the Appellantsuffered grievous injuries all over his body. The truck was insured withthe Respondent – Insurance Company.

4. The Appellant suffered from serious injuries in his right leg byan Anterior Cruciate Ligament and a Collateral Ligament Tear. PlasticEsurgery was performed on his right leg. This led to his right leg gettingpermanently injured, which resulted in complete disability to continue hisvocation as a driver of a heavy motor vehicle.

The Appellant underwent hospitalization for a total period of 65days, first in Government Hospital, Ratnagiri between 13.05.2006 andF01.06.2006 and thereafter, in KIMS Hospital, Hubli between 17.06.2006and 26.08.2006.

5. The Appellant filed a Claim under the Workmen’s CompensationAct, 1923 (“the Act”) before the Labour Officer and Commissioner forWorkmen’s Compensation, Sub-Division 2 – Belgaum (“Commissioner”)Gagainst the Truck Owner and the Insurance Company, praying that anamount of Rs. 5,00,000/- be awarded to him as compensation.

6. The Truck Owner filed his Written Statement, wherein headmitted the factum of the accident and the injuries suffered by theAppellant. He submitted that he was paying Rs. 4,000/- p.m. and Rs. 30Hbatta per day to the Appellant.

7. Dr. S.D. Patil – a Knee Specialist from Belagavi who hadexamined the Appellant, deposed that the Appellant can neither standfor a long period of time, nor can he fold his legs. He was required to usea walking stick, and could not lift heavy objects. Dr. Patil opined that theAppellant suffered 37% disability in his whole body, and could not performthe work of a truck driver any longer.

8. The Commissioner assessed the Appellant’s income at Rs. 3,000/- p.m., and held that he had lost 50% of his earning capacity. Since theAppellant was 33 years old at the time of the accident, 201.66 wastaken as the relevant factor as per Schedule IV to the Act. Accordingly,the compensation was computed at Rs. 1,81,494/-. The Respondent –Insurance Company was held liable to pay the amount awarded.

9. The Appellant filed MFA No. 1569/2008 before the KarnatakaHigh Court (Dharwad Bench) for enhancement of the compensationawarded by the Commissioner.

The High Court accepted the income of the Appellant at Rs. 4,000/- p.m. as per the statement made by the employer. Insofar as thefunctional disability of the Appellant was concerned, the Court held theassessment by the Commissioner at 50% was on the lower side, andincreased it to 60%, since the Appellant could no longer earn his livelihoodas a driver, and could not even stand for a long time.

The compensation was accordingly enhanced to Rs. 2,90,390/-with Interest @12% p.a. payable from one month after the date of theaccident.

10. Aggrieved, the Appellant has filed the present Civil Appealbefore this Court for enhancement of the compensation awarded by theHigh Court.

We have heard the learned Counsel appearing for the parties, andperused the pleadings on record.

It is the admitted position that the Appellant can no longer pursuehis vocation as a driver of heavy vehicles. The medical evidence onrecord has corroborated his inability to stand for a long period of time, oreven fold his legs. As a consequence, the Appellant has got permanentlyincapacitated to pursue his vocation as a driver.

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This Court in Raj Kumar v. Ajay Kumar and Ors.,[1] held that:“10. Ascertainment of the effect of the permanent disabilityon the actual earning capacity involves three steps. TheTribunal has to first ascertain what activities the claimantcould carry on in spite of the permanent disability and whathe could not do as a result of the permanent ability (this isalso relevant for awarding compensation under the head ofloss of amenities of life). The second step is to ascertain hisavocation, profession and nature of work before the accident,as also his age. The third step is to find out whether (i) theclaimant is totally disabled from earning any kind of livelihood,or (ii) whether in spite of the permanent disability, the claimantcould still effectively carry on the activities and functions,which he was earlier carrying on, or (iii) whether he wasprevented or restricted from discharging his previous activitiesand functions, but could carry on some other or lesser scaleof activities and functions so that he continues to earn or cancontinue to earn his livelihood.

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For example, if the left hand of a claimant is amputated, thepermanent physical or functional disablement may be assessedaround 60%. If the claimant was a driver or a carpenter, theactual loss of earning capacity may virtually be hundredpercent, if he is neither able to drive or do carpentry. On theother hand, if the claimant was a clerk in government service,the loss of his left hand may not result in loss of employmentand he may still be continued as a clerk as he could performhis clerical functions; and in that event the loss of earningcapacity will not be 100% as in the case of a driver orcarpenter, nor 60% which is the actual physical disability,but far less. In fact, there may not be any need to award anycompensation under the head of ‘loss of future earnings’, ifthe claimant continues in government service, though he maybe awarded compensation under the head of loss of amenitiesas a consequence of losing his hand. Sometimes the injuredclaimant may be continued in service, but may not foundsuitable for discharging the duties attached to the post or jobwhich he was earlier holding, on account of his disability, E

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H1 (2011) 1 SCC 343.

SRI CHANAPPA NAGAPPA MUCHALAGODA v. DIVISIONAL MANAGER,NEW INDIA INSURANCE COMPANY LIMITED [INDU MALHOTRA, J.]

and may therefore be shifted to some other suitable but lesserpost with lesser emoluments, in which case there should be alimited award under the head of loss of future earning capacity,taking note of the reduced earning capacity. It may be notedthat when compensation is awarded by treating the loss offuture earning capacity as 100% (or even anything more than50%), the need to award compensation separately under thehead of loss of amenities or loss of expectation of life maydisappear and as a result, only a token or nominal amountmay have to be awarded under the head of loss of amenitiesor loss of expectation of life, as otherwise there may be aduplication in the award of compensation. Be that as it may.”

11. In K. Janardhan v. United India Insurance Co. Ltd.,[2] thisCourt examined the loss of earning capacity in the case of a tankerdriver who had met with an accident, and lost one of his legs due toamputation. The Commissioner for Workmen’s Compensation assessedthe functional disability of the tanker driver as 100% and awardedcompensation on that basis. The High Court however, referred toSchedule I to the Workmen’s Compensation Act, 1923, and held thatloss 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 sincethe workman could no longer earn his living as a tanker driver due toloss of one leg, the functional disability had to be assessed as 100%.

In S. Suresh v. Oriental Insurance Co. Ltd. & Anr.,[3] this Courtheld that :

“8. … We are of the opinion that on account of amputation ofhis right leg below knee, he is rendered unfit for the work ofa driver, which he was performing at the time of the accidentresulting in the said disablement. Therefore, he has lost 100%of his earning capacity as a lorry driver, more so, when he isdisqualified from even getting a driving license under theMotor Vehicles Act.”

2 (2008) 8 SCC 518.

3 (2010) 13 SCC 777.

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AThe aforesaid judgments are instructive for assessing thecompensation payable to the Appellant in the present case. As aconsequence of the accident, the Appellant has been incapacitated forlife, since he can walk only with the help of a walking stick. He has lostthe ability to work as a driver, as he would be disqualified from evengetting a driving license. The prospect of securing any other manualBlabour job is not possible, since he would require the assistance of aperson to ensure his mobility and manage his discomfort. As aconsequence, the functional disability suffered by the Appellant must beassessed as 100%.

12. We affirm the judgment of the High Court on assessing theCincome of the Appellant at Rs. 4,000/- p.m. as per the evidence of hisemployer. The “functional disability” of the Appellant is assessed as100%, and the relevant factor would be 201.66 as per Schedule IV tothe Act. Consequently, the compensation payable to the Appellant wouldwork out to Rs. 4,83,984/- under Section 4 of the Act.

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13. We find that the Appellant has not been awarded any amounttowards reimbursement of the medical expenses incurred by him, eitherby the Commissioner, or by the High Court. The Appellant underwenthospitalization for a period of 65 days’ for medical treatment and surgicaloperations.

EWe deem it just and appropriate to award a lump sum amount ofRs. 1,00,000/- towards hospitalization and medical expenses incurred bythe Appellant.

14. The Respondent – Insurance Company is directed to pay theenhanced amount of compensation to the Appellant along-with InterestF@6% p.a. to be calculated one month from the date of the accident tillthe date of payment within 4 weeks.

The Civil Appeal stands allowed in the aforesaid terms. All pendingApplications, if any, are accordingly disposed of.

Ordered accordingly.G

Ankit Gyan

Appeal allowed.

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