CHANDRAMMA versus MANAGER, REGIONAL OFFICE, NCC LIMITED AND ANR. on 9 December 2022

[2022] 17 S.C.R. 713

CHANDRAMMA

v.

MANAGER, REGIONAL OFFICE, NCC LIMITED AND ANR.(Civil Appeal No. 9069 of 2022)

DECEMBER 09, 2022

[KRISHNA MURARI AND S. RAVINDRA BHAT, JJ.]

Employees Compensation Act, 1923 – s.2(1)(l) – TotalDisablement – When –Determination of quantum of compensation– Appellant, a skilled labour was involved in construction work,fell down from second floor to ground floor when the centeringplate collapsed on her head – Commissioner for Workmen’sCompensation while holding disability to the whole body at 20%,assessed compensation at Rs.1,75,000/- – High Court partly allowingthe appeal filed by the appellant enhanced the compensation toRs.2,19,512/- – Held: Appellant suffered from disablement ofpermanent nature which incapacitated her from doing the workwhich she was capable of doing, which is that of a laborer – Thus,the Commissioner was wrong in holding that the disability of theappellant will have to be treated as 20% disability as work of theappellant involves lifting heavy weights and she has been renderedincapable from doing such work due to her disability – Case of theappellant is covered by the definition of ‘total disablement’, being100% disabled – Functional disability of the appellant is liable tobe assessed as 100%, compensation determined accordingly – Totalcompensation works out to be Rs.9,26,216/- rounded of to Rs.9,30,000/- to be paid with interest @ 9% per annum from the dateof making the application till the date of actual payment –Respondent-Insurance Company to pay the enhanced amount ofcompensation as directed.

Employees Compensation Act, 1923 – Objective of –Discussed.

Employees Compensation Act, 1923 – s.2(1)(l) – TotalDisablement – Held: Total Disablement is defined u/s. 2(1)(l) tomean such disablement whether of a temporary or permanent natureas incapacitates a workman for all work which he was capable ofperforming at the time of accident resulting in such disablement

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Aand every injury specified in Part I of Schedule I or combination ofinjuries specified in Part II of Schedule I where aggregatepercentage, as specified in Part II against those injuries amountsto 100% or more – Further, two types of Total Disablement-Temporary Total Disablement & Permanent Total Disablement,discussed.B

Employees Compensation Act, 1923 – s.2(1)(g) – PartialDisablement – Temporary Partial Disablement & Permanent PartialDisablement – Distinction between – Held: Distinction between thetwo types of partial disablement depends on the fact whether thedisablement results in reduction of earning capacity in the particularCemployment in which the employee was engaged at the time of theaccident or in all employment which the employee was capable ofdoing – In the former case the partial disablement is called temporaryand in the latter case permanent – Every injury specified in Part Ilof Schedule I of the Employees’ Compensation Act shall be deemedDto result in permanent partial disablement.

Words and Phrases:

“Compensation”, “Just Compensation” – Discussed –Employees Compensation Act, 1923 – ss.3, 4.

E“Partial Disablement”, “Total Disablement”– Discussed –Employees Compensation Act, 1923 – ss.2(1)(g), 2(1)(l) .

Allowing the appeal, the Court

Conclusion

HELD : 1.1 The appellant is suffering from permanentpartial disablement which also implies that she will not be able toFdo anything manually such as unloading building materials or usinghand tools like shovels or picks or operating other machinery.Therefore, On the issue of disability, what is relevant is thestatement of the Dr. Mallikarjun who examined the appellant formaking an assessment of the disability. The disability reportshowed that there is Permanent Partial Disability of about 58%Gof the limb, which corresponds with 26% whole body. There isno dispute that the appellant suffered from disablement ofpermanent nature. The disablement has incapacitated her fromdoing the work which she was capable of doing. The said workwas of that of a laborer. Therefore, the Commissioner forHWorkmen’s Compensation was wrong in holding that the disability of the appellant will have to be treated as 20% disability as thework of an appellant involves lifting heavy weights and theappellant has been rendered incapable from doing such work dueto her disability. Hence, the case of the appellant will be coveredby the definition of ‘total disablement’, therefore, being 100%disabled. Thus, it is an admitted position that the appellant canno longer pursue the work of a labourer. [Paras 18-20][725-C-G]

1.2 The Accident incapacitated the appellant from carryingout her vocation as a labourer. The impugned order passed bythe High Court is not liable to be sustained. The functionaldisability of the appellant is liable to be assessed as 100% and,accordingly, the compensation is to be determined. The functionaldisability of the appellant being 100%, her age being 40 yearsand income being Rs.8000/-, 60% whereof works out to beRs.4800/- and applying the multiplier of 184.17, as per ScheduleIV of the 1993 Act, the compensation works out to be Rs.8,84,016/-. Adding an amount of Rs.42,200/- towards medical expensesfor which the bills were presented, the total compensation worksout to be Rs.9,26,216/- rounded of to Rs. 9,30,000/-. The appellantshall also be entitled for payment of interest @ 9% per annum,from the date of making the application till the date of actualpayment. The respondent Insurance Company to pay theenhanced amount of compensation to the appellant along with9% interest, calculated from the date of making of the applicationtill the date of payment within six weeks from today. [Paras 23,24][728-A-D]

Raj Kumar Vs. Ajay Kumar and Another (2011) 1 SCC343 : [2010] 13 SCR 179; K.Janardhan Vs. UnitedIndia Insurance Co.Ltd. & Anr (2008) 8 SCC 518 :[2008] 8 SCR 157; S.Suresh Vs. Oriental InsuranceCo. Ltd.& Anr. (2010) 13 SCC 777 : [2009] 14 SCR990 – relied on.

Case Law Reference

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ACIVIL APPELLATE JURISDICTION : Civil Appeal No. 9069of 2022.

From the Judgment and Order dated 07.08.2018 of the High Courtof Karnataka, Kalaburgi Bench in Misc. First Appeal No.202250/2017(WC).

BShankar Divate, Adv. for the Appellant.

Parijat Kishore, Adv. for the Respondents.

The Judgment of the Court was delivered by KRISHNA MURARI, J.

CLeave Granted.

2. The present appeal is directed against the final order dated07.08.2018 passed by the High Court of Karnataka, Kalaburgi Bench(hereinafter referred to as “High Court”) in Miscellaneous First AppealNo. 202250/2017 (WC) filed by the Appellant praying to call for theDrecords and set aside the judgment and award dated 02.06.2017 passedby Additional Senior Civil Judge and Commissioner for EmployeesCompensation at Bidar (hereinafter referred to as “Commissioner”)in E.C.A No. 12/2016. The High Court partly allowed the appeal of theAppellant and assessed the income as Rs.8000/- per month andaccordingly computed the compensation at Rs. 2,19,512/-.

E3. Briefly, the facts relevant for the purpose of this appeal are asfollows:

E3. Briefly, the facts relevant for the purpose of this appeal are asfollows:

3.1 The Appellant was engaged in the construction of governmenthospital at Bidar, Karnataka. Respondent No. 1 was the contractor andundertook the construction of upgradation of the hospital building. OnF22.07.2015, Appellant along with other laborers were attending the workof shifting the cement from ground floor to the second floor, the centeringplate collapsed on the head of the appellant who fell down from secondfloor to the ground floor.

3.2 Subsequently, the appellant was taken to the hospital whereinGit was established that she has sustained fracture of spinal bone andcompound fracture on various part of the body. After preliminarytreatment at government hospital at Bidar, the Appellant went toGurupadappa Nagmarpalli Hospital and was admitted as inpatient. Theappellant was informed by the Doctor that she would not be able to liftany kind of weight through rest of her life.H

4. 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 seekingcompensation of Rs. 20 Lakhs along with interest at 18% per annumfrom the date of accident. Vide judgment and award dated 02.06.2017,the Commissioner held that the Appellant has not proved that she waspaid Rs. 600 per day as cooli and accordingly computed notional incomeat Rs.6000/- per month. Further, it was held that the disability to thewhole body is at 20% and as such assessed the compensation atRs.1,32,600/-. Accordingly, the Appellant was held to be entitled forRs.1,75,000/- as compensation.

5. Being aggrieved, the Appellant filed an Appeal under Section30(1) of the 1923 Act before the High Court praying to call for therecords and set aside the judgment and award dated 02.06.2017. Videfinal order dated 07.08.2018, the High Court partly allowed the appeal.The Operative portion of the order reads as under: - “Heard both the learned counsel. The relationship betweenthe employee and employer has not been disputed. The onlygrounds taken by the counsel for the employee is in respectof income. Though it was the case that the income of Rs. 8,000/- is to be accepted, the same is disbelieved and thecommissioner has assessed the income at Rs. 6,000/- per monthwhich is lower in side. Though it is claimed that the respondenthas not seriously disputed the income of the claimant, underthese circumstances, the claimants are entitled for enhancedincome of Rs. 8,000/-. Accordingly, same is to be assessed. Asper Section 4(1)(b) of the Employees Compensation Act 1993,60% of the monthly wages of injured employee has to bemultiplied by relevant factor 184.17 which is applicable tothe age of 40 years. Accordingly, calculation is Rs. 8,000/- X60% = Rs. 4,800/-. Hence Rs. 4,800 X 184.17 which comesto Rs.8,86,560/-. PW2 the doctor’s evidence is that injuredsuffered 20% disability to the whole body and Tribunal assessedthe disability at 20%. Hence the calculation is Rs.8,86,560 X20%, which comes to Rs.1,77,312/- and same is awarded.Order of the E.C. Commissioner stands modified. Enhancedamount carries interest. Medical expenses of Rs. 42,200/- asordered by the Commissioner is retained. In total, the AB

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Acompensation would be Rs.2,19,512/- the same is awarded.Order stands modified. Appeal is partly allowed.”

6. We have heard Mr. Shankar Divate, Learned Counsel appearingon behalf of the Appellant and Mr. Parijat Kishore, Learned Counselappearing on behalf of the Respondents.B

7. Mr. Shankar Divate, Learned Counsel for the appellantvehemently submitted that the Courts below failed to note that thepetitioner suffered spinal injury and the doctor had clearly andcategorically observed that professional disability is 100%. It was furthersubmitted that the minimum wages as fixed under the WorkmenCCompensation Act cannot be lower than the actual wages earned by alaborer and that the courts below ought to have granted the compensationon the basis of the actual earning capacity and the appellant ispermanently disabled from working as labour at construction sites. Itwas also submitted that the appellant was doing the construction workand given the injury suffered by the petitioner, she would not be able toDdo any other work by which she can earn her livelihood, therefore, thegrant of compensation of Rs.2,19,512/- for permanent disability isinadequate and deserves to be enhanced.

8. Per contra, Learned Counsel for the Respondents urged thatthe grant of compensation awarded by the High Court is adequate andErequires no interference by this Court.

9. We have carefully considered the rival contentions of the learnedcounsel appearing for the parties and perused the entire records. Theissue involved in the instant matter primarily relates to the determinationof quantum of compensation awarded under various heads by theFCommissioner and the High Court.

10. Before adverting to the merits of the case, it is necessary toanalyse the meaning of compensation awarded in cases where the victimhas suffered permanent partial disability. In common parlance,compensation is often described as “something, typically money,Gawarded to someone in recognition of loss, suffering or injury”.Under the Workmen’s Compensation Act, 1923, it is mandatory for theemployers to pay compensation to their employees or workmen for awork-related accident, fatality, injury, or illness. The Objective of the1923 Act is two-fold. First, it enables employees and their dependents toget compensation from their employers in case an accident causes anH

employee’s death or disability; second, it mandates employers to paycompensation to their workers if they contract certain job-related illnessesor diseases.

11. In relation to the above objective, it is essential to advert toSection 3 of the 1923 Act which states that an employer is liable to paydamages to its workers under the following conditions:

i.If a worker has an occupational disease mentioned underPart A, B, C of Schedule III. The disease has to be a resultof an injury by accident during work hours.

ii.An injury sustained by an employee during work that leadsto total or partial disability

iii.Death of an employee due to a work-related hazard.

12. Ideally, the compensation should be provided to the employeesagainst the hazards of employment to which an employee is exposed.This also includes any occupational disease or industrial accident thatthe employee may encounter arising out of or during the course ofemployment which leads to disability or death. Specifically, a worker isentitled to compensation in case of

i.Death

ii.Permanent Total Disablement

iii.Permanent Partial Disablement

iv.Temporary disablement- both total and partial

v.It has contracted an occupational disease.

13. Disablement is a wide term and under the 1923 Act, it is dividedinto two categories ie., Partial disablement and total disablement.According to Section 2(1) (g) of the Act ‘Partial Disablement’ means,where the disablement is of a temporary nature, such disablementreduces the earning capacity of an employee in any employment in whichhe was engaged at the time of the accident resulting in the disablement,and, where the disablement is of a permanent nature, such disablementas reduces his earning capacity in every employment which he wascapable of undertaking at that time. Thus, Section 2(1) (g) classifiespartial disablement into two kinds, namely, (a) Temporary partialdisablement and, (b) Permanent partial disablement.

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A13.1 The distinction between the two types of partial disablementdepends on the fact whether the disablement results in reduction ofearning capacity in the particular employment in which he was engagedat the time of the accident or in all employment which the employee wascapable of doing. In the former case the partial disablement is calledtemporary and in the latter case permanent. Every injury specified inBPart Il of Schedule I of the Employees’ Compensation Act shall bedeemed to result in permanent partial disablement.

14. Whereas, “Total Disablement” is defined under Section 2(1)(l)to mean such disablement whether of a temporary or permanent natureas incapacitates a workman for all work which he was capable ofCperforming at the time of accident resulting in such disablement andevery injury specified in Part I of Schedule I or combination of injuriesspecified in Part II of Schedule I where aggregate percentage, asspecified in Part II against those injuries amounts to 100% or more. Totaldisablement is of two types-:D

i.Temporary Total Disablement– In temporary totaldisablement the earning capacity of a workman is lost for atemporary period, for all work which he was capable ofperforming at the time of accident.

ii.Permanent Total Disablement– Total permanent disabilityE(TPD) is a condition in which an individual is no longer ableto work due to injuries. Total permanent disability, also calledpermanent total disability, applies to cases in which theindividual may never be able to work again.

F15. Taking the type of disability into concern, just compensationshould to awarded to the person aggrieved. “Just Compensation” shouldinclude all elements that would go to place the victim in as near a positionas she or he was in, before the occurrence of the accident. Whilst noamount of money or other material compensation can erase the trauma,pain and suffering that a victim undergoes after a serious accident, (orGreplace the loss of a loved one), monetary compensation is the mannerknown to law, whereby society assures some measure of restitution tothose who survive, and the victims who have to face their lives. UnderSection 4 of the 1923 Act, the amount of compensation an employer hasto provide workers is as follows:

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i.Death of the worker: 50% of the worker’s monthly wagesmultiplied with relevant factors; or 1,20,000, whichever ismore.

ii.Permanent Total Disability: 60% of the monthly wages,multiplied by relevant factor; or 1,40,000, whichever ismore.

iii.Permanent Partial Disability: In such cases, the amountpayable is a percentage of the loss of earning capacity dueto the injury. These injuries are mentioned in Part II ofSchedule I of the Act.

iv.Temporary Disability: 25% of the employee’s monthlywages.

16. A three-Judge Bench of this Court in Raj Kumar Vs. AjayKumar and Another[1] categorically assessed the assessment of futureloss of earnings due to permanent disability. The operative portion of thejudgment reads as under: -

“9. The percentage of permanent disability is expressed bythe Doctors with reference to the whole body, or more oftenthan not, with reference to a particular limb. When a disabilitycertificate states that the injured has suffered permanentdisability to an extent of 45% of the left lower limb, it is notthe same as 45% permanent disability with reference to thewhole body. The extent of disability of a limb (or part of thebody) expressed in terms of a percentage of the total functionsof that limb, obviously cannot be assumed to be the extent ofdisability of the whole body. If there is 60% permanentdisability of the right hand and 80% permanent disability ofleft leg, it does not mean that the extent of permanent disabilitywith reference to the whole body is 140% (that is 80% plus60%). If different parts of the body have suffered differentpercentages of disabilities, the sum total thereof expressed interms of the permanent disability with reference to the wholebody, cannot obviously exceed 100%.

10. Where the claimant suffers a permanent disability as aresult of injuries, the assessment of compensation under the A

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head of loss of future earnings, would depend upon the effectand impact of such permanent disability on his earningcapacity. The Tribunal should not mechanically apply thepercentage of permanent disability as the percentage ofeconomic loss or loss of earning capacity. In most of the cases,the percentage of economic loss, that is, percentage of lossof earning capacity, arising from a permanent disability willbe different from the percentage of permanent disability. SomeTribunals wrongly assume that in all cases, a particular extent(percentage) of permanent disability would result in acorresponding loss of earning capacity, and consequently, ifthe evidence produced show 45% as the permanent disability,will hold that there is 45% loss of future earning capacity. Inmost of the cases, equating the extent (percentage) of loss ofearning capacity to the extent (percentage) of permanentdisability will result in award of either too low or too high acompensation.

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11. What requires to be assessed by the Tribunal is the effectof the permanently disability on the earning capacity of theinjured; and after assessing the loss of earning capacity interms of a percentage of the income, it has to be quantified interms of money, to arrive at the future loss of earnings (byEapplying the standard multiplier method used to determineloss of dependency). We may however note that in some cases,on appreciation of evidence and assessment, the Tribunal mayfind that percentage of loss of earning capacity as a result ofthe permanent disability, is approximately the same as theFpercentage of permanent disability in which case, of course,the Tribunal will adopt the said percentage for determinationof compensation.

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12. Therefore, the Tribunal has to first decide whether thereis any permanent disability and if so the extent of suchGpermanent disability. This means that the tribunal shouldconsider and decide with reference to the evidence:

(i) whether the disablement is permanent or temporary;

(ii) if the disablement is permanent, whether it is permanenttotal disablement or permanent partial disablement, H

(iii) if the disablement percentage is expressed with referenceto any specific limb, then the effect of such disablement ofthe limb on the functioning of the entire body, that is thepermanent disability suffered by the person.

If the Tribunal concludes that there is no permanent disabilitythen there is no question of proceeding further anddetermining the loss of future earning capacity. But if theTribunal concludes that there is permanent disability then itwill proceed to ascertain its extent. After the Tribunalascertains the actual extent of permanent disability of theclaimant based on the medical evidence, it has to determinewhether such permanent disability has affected or will affecthis earning capacity.

13. Ascertainment of the effect of the permanent disability onthe actual earning capacity involves three steps. The Tribunalhas to first ascertain what activities the claimant could carryon in spite of the permanent disability and what he could notdo as a result of the permanent ability (this is also relevantfor awarding compensation under the head of loss of amenitiesof life). The second step is to ascertain his avocation, professionand nature of work before the accident, as also his age. Thethird step is to find out whether (i) the claimant is totallydisabled from earning any kind of livelihood, or (ii) whetherin spite of the permanent disability, the claimant could stilleffectively carry on the activities and functions, which he wasearlier carrying on, or (iii) whether he was prevented orrestricted from discharging his previous activities andfunctions, but could carry on some other or lesser scale ofactivities and functions so that he continues to earn or cancontinue to earn his livelihood.

14. For example, if the left hand of a claimant is amputated,the permanent physical or functional disablement may beassessed around 60%. If the claimant was a driver or acarpenter, the actual loss of earning capacity may virtuallybe hundred percent, if he is neither able to drive or docarpentry. On the other hand, if the claimant was a clerk ingovernment service, the loss of his left hand may not result inloss of employment and he may still be continued as a clerk ABC

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Aas he could perform his clerical functions; and in that eventthe loss of earning capacity will not be 100% as in the caseof a driver or carpenter, nor 60% which is the actual physicaldisability, but far less. In fact, there may not be any need toaward any compensation under the head of ‘loss of futureearnings’, if the claimant continues in government service,Bthough he may be awarded compensation under the head ofloss of amenities as a consequence of losing his hand.Sometimes the injured claimant may be continued in service,but may not found suitable for discharging the duties attachedto the post or job which he was earlier holding, on accountCof his disability, and may therefore be shifted to some othersuitable but lesser post with lesser emoluments, in which casethere should be a limited award under the head of loss offuture earning capacity, taking note of the reduced earningcapacity.”

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D17. In the case at hand, the appellant is a skilled labour, who wasinvolved in the work of construction of hospital building. On 22.07.2015,the appellant fell down from second floor to ground floor when thecentering plate collapsed on her head. It is pertinent to mention thatdoctors who treated the appellant have held that she sustained fractureof spinal bone and compound fracture on various parts of the body.EAppellant herein, contended that the contractor had not provided anysafety gears, instead he allowed the labourer to take the cement on thehead. The negligence of the contractor lead to appellant’s permanentpartial disablement. The commissioner computed the income of theappellant as follows: -F

“14. According to Section 4(1)(b) of the EmployeesCompensation Act, 1993, 60% of monthly wages of the injuredemployee has been multiplied by relevant factor. Hence inview of the said provision, the compensation is calculated(Rs. 6000 X 60/100 = Rs. 3600/-). The age of the claimant isG40%, it should be multiplied by relevant factor is 184.17. Itcomes to Rs. 6,63,012/-. The PW-2 had opined that, there is26% of disability to the whole body. But i feel it proper toconsider the whole-body disability @ 20% (Rs. 663012 X20(permanent disability)/100 = Rs. 1,32,602/-). It is roundedoff to Rs. 1,32,600.

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15. The petitioner is not entitled for compensation in any otherconventional head. The petitioner had produced medical billsof Rs. 42,200/- issued by United Hospital and Gurupadappa,Hospital. As per Section 4 2 (A) Employees CompensationAct, the medical expenses should be reimbursed. Hence, inthe entire petitioner entitle for Rs. 1,74,800/-. It should be offto Rs. 1,75,000 as compensation from respondent no. 2.”

Further, the appellant filed an appeal before the High Court seekingenhancement of compensation and same was allowed in part. The HighCourt enhanced the compensation to Rs. 2,19,512/- by assessing theincome of the appellant at Rs. 8000/- per month.

18. Predominantly, it is to be noted that the appellant is sufferingfrom permanent partial disablement which also implies that she will notbe able to do anything manually such as unloading building materials orusing hand tools like shovels or picks or operating other machinery.Therefore, On the issue of disability, what is relevant is the statement ofthe Dr. Mallikarjun who examined the appellant for making an assessmentof the disability. The disability report showed that there is PermanentPartial Disability of about 58% of the limb, which corresponds with 26%whole body.

19. There is no dispute that the appellant suffered from disablementof permanent nature. The disablement has incapacitated her from doingthe work which she was capable of doing. The said work was of that ofa laborer. Therefore, the Commissioner for Workmen’s Compensationwas wrong in holding that the disability of the appellant will have to betreated as 20% disability as the work of an appellant involves liftingheavy weights and the appellant has been rendered incapable from doingsuch work due to her disability. Hence, the case of the appellant will becovered by the definition of ‘total disablement’, therefore, being 100%disabled.

20. Thus, it is an admitted position that the appellant can no longerpursue the work of a labourer. This Court in Raj Kumar Vs. Ajay Kumar(Supra) held that:- “13. 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 what AB

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he 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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14. For example, if the left hand of a claimant is amputated,the permanent physical or functional disablement may beassessed around 60%. If the claimant was a driver or aDcarpenter, the actual loss of earning capacity may virtuallybe hundred percent, if he is neither able to drive or docarpentry. On the other hand, if the claimant was a clerk ingovernment service, the loss of his left hand may not result inloss of employment and he may still be continued as a clerkas he could perform his clerical functions; and in that eventEthe loss of earning capacity will not be 100% as in the caseof a driver or carpenter, nor 60% which is the actual physicaldisability, but far less. In fact, there may not be any need toaward any compensation under the head of ‘loss of futureearnings’, if the claimant continues in government service,Fthough he may be awarded compensation under the head ofloss of amenities as a consequence of losing his hand.Sometimes the injured claimant may be continued in service,but may not found suitable for discharging the duties attachedto the post or job which he was earlier holding, on accountof his disability, and may therefore be shifted to some otherGsuitable but lesser post with lesser emoluments, in which casethere should be a limited award under the head of loss offuture earning capacity, taking note of the reduced earningcapacity.

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15. It may be noted that when compensation is awarded byHtreating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensationseparately under the head of loss of amenities or loss ofexpectation of life may disappear and as a result, only a tokenor nominal amount may have to be awarded under the headof loss of amenities or loss of expectation of life, as otherwisethere may be a duplication in the award of compensation. Bethat as it may.”

(emphasis supplied)

21. Similarly, in the case of K.Janardhan Vs. United IndiaInsurance Co. Ltd. & Anr.[2], this Court held that :- “The loss of earning capacity in the case of tanker driverwho had met with an accident, and lost one of his legs due toamputation. The commissioner for Workment’s Compensationassessed the functional disability of the tanker driver as 100% and awarded compensation on that basis. The High Court,however, referred to Schedule 1 to the Workmen’sCompensation Act, 1923, and held that loss of a leg onamputation resulted in only 60% loss of earning capacity.This Court set aside the judgment of the High Court, andheld that since the workman could no logner earn his livingas a tanker driver due to loss of one leg, the functionaldisability had to be assessed as 100%.”

22. This Court in the case of S.Suresh Vs. Oriental InsuranceCo. Ltd.& Anr.[3],held that :- “9. 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 licence under theMotor Vehicles Act, 1988.”

(emphasis supplied)

23. Having considered the aforesaid facts of the present caseand the dictum of the judicial pronouncements referred to above and the 2 (2008) 8 SCC 518

3 (2010) 13 SCC 777

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Aposition of the appellant after the accident, incapacitated her from carryingout her vocation as a labourer, we are of the opinion that the impugnedorder passed by the High Court is not liable to be sustained. The functionaldisability of the appellant is liable to be assessed as 100% and, accordingly,the compensation is to be determined. The functional disability of theappellant being 100%, her age being 40 years and income being Rs.8000/B-, 60% whereof works out to be Rs.4800/- and applying the multiplier of184.17, as per Schedule IV of the 1993 Act, the compensation worksout to be Rs.8,84,016/-. Adding an amount of Rs.42,200/- towards medicalexpenses for which the bills were presented, the total compensationworks out to be Rs.9,26,216/- rounded of to Rs. 9,30,000/-. The appellantCshall also be entitled for payment of interest @ 9% per annum, from thedate of making the application till the date of actual payment.

24. The respondent Insurance Company is directed to pay theenhanced amount of compensation to the appellant along with 9% interest,calculated from the date of making of the application till the date ofDpayment within six weeks from today.

25. The Civil Appeal stands allowed in the aforesaid terms. Allthe pending applications, if any, are accordingly disposed of. Orderedaccordingly.

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Divya Pandey

(Assisted by : Roopanshi Virang, LCRA)

Appeal allowed.

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