INDRA BAI versus ORIENTAL INSURANCE COMPANY LTD. & ANOTHER on 17 July 2023

1. Leave granted.

2. This appeal assails the judgment and order of the High Court ofMadhya Pradesh at Jabalpur (in short, “the High Court”), datedF31.10.2022, in Misc. Appeal No. 2369 of 2003, whereby the High Courtpartly allowed the appeal preferred by Oriental Insurance Company Ltd.(R-1 herein) against the order of the Workmen’s CompensationCommissioner/Labour Court, Jabalpur dated 03.09.2003 passed in CaseNo.134/2002/WC/Non- Fatal and, thereby, reduced the compensationGawarded to the appellant from Rs.3,74,364/- to Rs.1,49,745.60/- by treatingthe permanent disability of the appellant as 40% in place of 100 %.

FACTS:-

3. The appellant was employed as loading and unloading labourerwith M/s. Simplex Concrete Company (R-2 herein) for Truck No. MPF

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7567, which was insured with R-1. On 03.10.2002, while the appellantwas loading poles/pillars in that truck, the chain pulley broke and thepoles fell on the left arm of the appellant resulting in a compound fractureof her left arm as well as damage to the nerves etc. By claiming that dueto the injury, the appellant has suffered permanent total disablement, asthere was no grip left in her left arm, compensation was sought fromR-2. R-2 claimed itself to be insured with R-1 and requested the appellantto claim compensation from R-1. As no compensation was paid, theappellant filed petition before the Workmen’s Compensation Commissioner(in short, “the Commissioner”) under the provisions of the Workmen’sCompensation Act, 1923, now known as “the Employee’s CompensationAct, 1923" (in short, “the Act”).

4. Before the Commissioner, R-2 did not dispute the facts set upin the claim petition, rather he claimed the benefit of insurance coverunder a policy issued by R-1.

5. R-1 (the Insurer), though did not deny existence of an insurancecover in favour of R-2, took usual pleas to defeat the claim which neednot be elaborated here, as there is no appeal by R-1 against the order ofthe High Court fastening liability on it under the insurance policy.

6. During the course of the proceedings before the Commissioner,the appellant examined herself. She proved that, – she was working as aloading/unloading labourer of Truck No. MPF 7567, owned by R-2 andinsured with R-1; on the fateful day while she was loading poles/pillarson the said truck along with other labourers, the chain pulley broke andthe poles fell on her, resulting in severe injuries to her left hand; she wasadmitted to the hospital for a period exceeding 10 days and due to theinjuries sustained in that accident, her left hand has become completelyineffective because of no movement in the fingers of her left hand onaccount of nerve damage. Various documents including salary certificate(Exh. P-5), discharge card (Exh. P-7) and disability certificate issued byMedical Board (Exh. P-8) were produced to support her claim.

7. The appellant also examined Dr. Ravi Shankar Chowdhary, anOrthopaedist and a member of the District Medical Board (in short,“the Board”), who deposed that on 22.10.2002 the appellant gave anapplication to the Board to ascertain the percentage of her disability.Whereupon, she was examined and it was found that there was a compoundfracture in her left arm and plates and screws were installed in her radial AB

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Aand ulna bone after operation, as a result, the fingers of her left hand hadlost movement and the muscles had become thin. The doctor proved thata certificate indicating permanent disability to the extent of 50% with adeclaration that she is unfit for labour work has been issued by the Board.

8. Neither R-1 nor R-2 produced evidence to rebut the evidenceBled by the appellant.

COMMISSIONER’SFINDINGS

9. The Commissioner upon consideration of the evidence on recordfound the appellant rendered permanently unfit to do labour work, whichshe was doing at the time of the accident. Accordingly, appellant’sCpermanent disability was assessed as total.

10. Having assessed that the appellant had incurred permanenttotal disability, on finding that her age was 30 years and monthly wageswere Rs.3,000/- at the time of the accident, the Commissioner computedthe compensation payable in terms of Section 4(1)(b) of the Act as below:- D

“17. The age of applicant was 30 years at the time of the accidentwhose age factor is 207.98 as per Schedule IV of Section 4 ofthe Workmen’s Compensation Act. Multiplying this age factor by60% of the monthly salary of Rs. 3000/- given to the applicant byRs. 1800/-, the total compensation amount is Rs. 3,74,364/-.”

E11. After computing the compensation, the Commissioner directedas follows:- “18. Therefore, the non-applicants are ordered to jointly andseverally deposit an amount of Rs.3,74,364/- in this Court within45 days from the date of this order. The non-applicants will beFliable to deposit 9% interest from the date of this order for notdepositing the compensation amount within the stipulated time.”

12. Aggrieved by the order of the Commissioner, R-1 preferredappeal, under Section 30 of the Act, before the High Court.

GFINDINGSOFTHEHIGHCOURT

13. The High Court did not disturb the finding of the Commissionerwith regard to the entitlement of the appellant for compensation as alsowith regard to her age and monthly wages. However, the High Courtassessed her permanent disability as 40% and thereby reduced theHcompensation awarded.

INDRA BAI v. ORIENTAL INSURANCE COMPANY LTD. &ANOTHER [MANOJ MISRA, J.]

14. On the extent of permanent disability, the High Court noticedthe certificate provided by the Board and observed:- “A perusal of the record reveals that claimant had producedcertificate from District Medical Board, Jabalpur, Ex. P-8 dated25.02.2003, whereby it is mentioned that claimant Smt. Indra Baiis an old case of compound fracture of left Radial Ulna with P.O.Plating and screw with contracture of fingers with wrist drop withmonoparesis upper limb. Disability was certified at 50% withfurther stipulation that unfit for labour job.”

15. The High Court also noticed the statement of the doctor whodid the medical examination and observed:- “Dr. Ravi Shankar Choudhary was examined on behalf of theclaimant, who deposed that it was a case of old compound fractureof radius and ulna bone, which was fixed through an operation byfixing plate and screw. In cross-examination, this witness admittedthat except for her left hand, there is no disability in her body. Shecan carry out all the works which can be carried out by righthand.”

16. The High Court considered the decision of this Court inNational Insurance Co. Ltd. v. Mubasir Ahmed and Another[1]toobserve that if there is permanent partial disablement on account ofinjuries not specified in Schedule 1 then loss of earning capacity is not asubstitute for percentage of physical disablement though it is one of thefactors to be taken into account. It also noticed another decision of thisCourt rendered in Oriental Insurance Company Ltd. v. Mohd. Nasirand Another[2]to observe that the extent of disability is to be determinedhaving regard to the facts and circumstances of the case but not in anarbitrary and illegal manner.

17. After observing as above and taking notice of a decision ofthe High Court, the High Court found that ends of justice will be met if40% permanent disablement is taken into consideration for computingthe compensation. Consequently, the High Court reduced thecompensation awarded to the extent indicated above.

1 (2007) 2 SCC 349

2 (2007) 2 SCC 349

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18. Aggrieved by the judgment and order of the High Court, theappellant has preferred Special Leave Petition under Article 136 of theConstitution of India.

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19. On this petition, notices were issued on 13.01.2023 to therespondents 1 and 2 and it was directed that no recovery of any excessBamount shall be made from the petitioner. As per the office report dated05.04.2023, despite due service on the respondents, none has enteredappearance on their behalf.

20. We have heard learned counsel for the appellant and haveperused the record.CSUBMISSIONSOFTHEAPPELLANT

21. The learned counsel for the appellant submitted that, - firstly,appeal under section 30 of the Act is not to be entertained unless asubstantial question of law arises. In absence of any perversity in thereasoning qua the extent of disability, it being a question of fact, the HighDCourt erred by delving into that issue. Secondly, the High Court fell inerror by assessing the permanent disability as 40% instead of 100%. Itwas urged that total disablement, whether temporary or permanent, of aworkman is to be adjudged on the basis of his incapacity to perform thework which he was capable of performing at the time of the accidentEresulting in such disablement. The appellant was a loading and unloadinglabourer at the time of the accident. For the purposes of loading/unloading,use of both arms/hands are required. The evidence brought on recordhad clearly indicated that the appellant’s left hand was rendered uselesstherefore she was declared unfit for labour job. In such circumstances,the Commissioner was justified in assessing the permanent disability asF100% (i.e., total disablement) whereas the High Court fell in error byassessing it as 40%. In support of his submissions, the learned counselfor the appellant placed reliance on decisions of this Court in ChanappaNagappa Muchalagoda v. Divisional Manager, New IndiaInsurance Co. Ltd.[3]and Golla Rajanna and Others v. DivisionalGManager and Another.[4]

DISCUSSIONANDANALYSIS

22. We have considered the submissions and have perused therecord.

3 (2020) 1 SCC 796H4 (2017) 1 SCC 45

23. There is no dispute between the parties in respect of thefollowing:- (a) that the appellant was under employment of R-2 as a loadingand unloading labourer for Truck No. MPF 7567, which wasinsured with R- 1 at the time of the accident; (b) that the accident occurred during the course of employment;

(c) that at the time of accident, age of the appellant was 30 yearsand monthly wages were Rs.3000; and

(d) that though the Board declared her permanently disabled tothe extent of 50%, but certified that she is ‘unfit’ for labour.

24. Section 4(1)(b) of the Act, at the relevant time, read as under:- “4. Amount of compensation.- (1)Subject to the provisions ofthis Act, the amount of compensation shall be as follows, namely:- Provided that the Central Government may, by notification in theOfficial Gazette, from time to time, enhance the amount of compensationmentioned in clauses (a) and (b).

Explanation I.— For the purposes of clause (a) and clause (b),“relevant factor”, in relation to a workman means the factor specified inthe second column of Schedule IV against the entry in the first columnof that Schedule specifying the number of years which are the same asthe completed years of the age of the workman on his last birthdayimmediately preceding the date on which the compensation fell due.”

25. “Total disablement” is defined by section 2(1)(l) as follows:- “ “total disablement” means such disablement, whether of atemporary or permanent nature, as incapacitates a workman forall work which he was capable of performing at the time of theaccident resulting in such disablement:

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AProvided that permanent total disablement shall be deemedto result from every injury specified in Part I of Schedule I or fromany combination of injuries specified in Part II thereof where theaggregate percentage of the loss of earning capacity, as specifiedin the said Part II against those injuries, amounts to one hundredper cent or more;”B

26. In Pratap Narain Singh Deo v. Srinivas Sabata andAnother[5], decided by a four-Judge Bench of this Court, the injuredworkman was a carpenter by profession and by loss of left hand abovethe elbow, he was evidently rendered unfit for the work of carpentryand, therefore, the Commissioner awarded compensation by consideringCpermanent disability as total i.e., 100%. The employer raised an argumentthat the injury did not result in permanent total disablement of the workmanand therefore, the Commissioner committed a gross error of law in takinga view that there was total disablement. In that context, this Court held:- “5. The expression “total disablement” has been defined in sectionD2(1)(l) of the Act as follows:

“ “total disablement” means such disablement, whetherof a temporary or permanent nature, as incapacitates aworkman for all work which he was capable of performing atthe time of the accident resulting in such disablement.”

EIt has not been disputed before us that the injury was of such anature as to cause permanent disablement to the respondent, andthe question for consideration is whether the disablementincapacitated the respondent for all work which he was capableof performing at the time of the accident. The Commissioner hasexamined the question and recorded his finding as follows:F

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“The injured workman in this case is carpenter byprofession....By loss of the left hand above the elbow, he hasevidently been rendered unfit for the work of carpenter as thework of carpentry cannot be done by one hand only.”

This is obviously a reasonable and correct finding. Counsel forGthe appellant has not been able to assail it on any ground and itdoes not require to be corrected in this appeal.”

27. In Chanappa Nagappa Muchalagoda (supra), the issuethat came for consideration before this Court was, whether a workman INDRA BAI v. ORIENTAL INSURANCE COMPANY LTD. &ANOTHER [MANOJ MISRA, J.]

driver who, on account of injury on his leg, could neither stand for a longtime nor fold his legs and was required to use a walking stick, and couldnot lift heavy objects, would be entitled for compensation by taking thedisability as 100% or less, as per the medical opinion. Notably, in thatcase, the doctor had certified that the workman had suffered 37% disabilityin his whole body, and could not perform the work of a truck driver anylonger. In that context, it was held:

“10. It is the admitted position that the appellant can no longerpursue his vocation as a driver of heavy vehicles. The medicalevidence on record has corroborated his inability to stand for along period of time, or even fold his legs. As a consequence, theappellant has got permanently incapacitated to pursue his vocationas a driver.

14. ….. As a consequence of the accident, the appellant has beenincapacitated for life, since he can walk only with the help of awalking stick. He has lost the ability to work as a driver, as hewould be disqualified from even getting a driving license. Theprospect of securing any other manual labour job is not possible,since he would require the assistance of a person to ensure hismobility and manage his discomfort. As a consequence, thefunctional disability suffered by the Appellant must be assessedas 100%.”

28. In light of the aforesaid decisions and the definition of theterm “total disablement” as provided by clause (l) of sub-section (1) ofsection 2 of the Act, it is the functional disability and not just the physicaldisability which is the determining factor in assessing whether the claimant(i.e., workman) has incurred total disablement. Thus, if the disablementincurred in an accident incapacitates a workman for all work which hewas capable of performing at the time of the accident resulting in suchdisablement, the disablement would be taken as total for the purposesof award of compensation under section 4(1)(b) of the Act regardless ofthe injury sustained being not one as specified in Part I of Schedule I ofthe Act. The proviso to clause (l) of sub-section (1) of Section 2 of theAct does not dilute the import of the substantive clause. Rather, it addsto it by specifying categories wherein it shall be deemed that there ispermanent total disablement.

29. In Mohd. Nasir (supra), which has been relied by the HighCourt, the workman was a cleaner. He had suffered fracture in the leg.

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AIt was held that such injury would not amount to permanent loss of theuse of the entire leg. Hence, the disablement was found partial and nottotal.

30. In Mubasir Ahmed (supra), another decision relied by theHigh Court, the matter did not relate to injuries specified in Schedule IBand, as such, it was observed that the case was covered by Section4(1)(c)(ii) of the Act. However, in that case, the Court at no stageexamined whether the disablement in question had incapacitated theworkman from performing all work which he was capable of performingat the time of the accident resulting in such disablement. In other words,the Court had no occasion to examine the true import of the term “totalCdisablement” as defined by Section 2(1)(l) of the Act. Therefore, in ourview, the decision in Mubasir Ahmed (supra) was wrongly applied bythe High Court.

31. In the instant case, on the basis of medical certificate providedby the Board, the Commissioner found the appellant unfit for labourDinasmuch as there was complete loss of grip in appellant’s left hand.Prior to the accident, the appellant worked as a loading/unloadinglabourer. Even if she could use her right hand, the crux is whether shecould be considered suitable for performing her task as a loading/unloadinglabourer. Such a task is ordinarily performed by using both hands. Thereis no material on record from which it could be inferred that the appellantEwas skilled to perform any kind of job by use of one hand. It is also nota case where the appellant had the skill to perform her job by usingmachines which the appellant could operate by using one hand. In suchcircumstances, when the Board had certified that the appellant wasrendered unfit for labour, there was no perversity in the decision of the FCommissioner in awarding compensation by treating the disability as totalon account of her functional disability. Consequently, no question of law,much less a substantial one, arose for consideration by the High Court soas to allow the appeal in exercise of power under Section 30 of the Act.In our considered view, the High Court erred in partly setting aside the order of the Commissioner and assessing the disability as 40% insteadGof 100%, as assessed by the Commissioner.

32. For the reasons above, the appeal is allowed. The judgmentand order of the High Court is set aside. The order of the Commissioneris restored. There is no order as to costs.

HAnkit Gyan(Assisted by : Aarsh Choudhary, LCRA)

Appeal allowed.