*THE HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR +C.M.A. NOS. 4594 OF 2004 AND 4719 OF 2003 %02-08-2012 #United India Insurance Co. Limited represented by its Divisional Manager, 2nd Floor, Ramalaya, Secunderabad ….petitioner Vs. $ Y. Ananda Rao S/o Narasimha and one another …. Respondents !Counsel for the Appellants: P. Vijaya Lakshmi Counsel for the Respondent No. 1: Mr. Ch. Indrasena Reddy <Gist : >Head Note: ? Cases referred: 1. (2008) 9 SCC 492 2. 2010-I-LLJ-841 (SC) 3. (2011) 1 SCC 343 4. 2010 (1) ALD 74 (SC) 5. (2011 (130) FLR 113) 6. (1976) 1 SCC 289 : 1976 SCC (L& S) 52 7. 2008-II-LLJ-960 (SC) 8. 2010-I-LLJ-839 (SC) 9. 2012-II-LLJ-554 (SC) HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR C.M.A. NOS. 4594 OF 2004 AND 4719 OF 2003 COMMON JUDGMENT: These two appeals though arising out of different accidents where the claimants were subjected to different disabilities, the question of law which arises for consideration being common, the learned counsel for the appellants and the respondents requested for hearing these two matters together as both the learned counsel are appearing for both the parties. The appeal viz., CMA No. 4594 of 2004 is filed by the Insurance Company against the award of the Commissioner in W.C.No. 28 of 2003 dated 16.10.2004 whereas the appeal viz., CMA No. 4719 of 2003 also preferred by the Insurance Company against the award in W.C. No. 86 of 2002 dated 29.10.2002. These appeals are hereinafter referred to as ‘first and second case’ respectively for convenience. In the first case, the claimant who was a driver of an auto suffered an accident, which ultimately resulted in loss of vision of his right eye. The said claimant was employed by opposite party No. 1 and the vehicle admittedly insured with the appellant. In the second case, the claimant is a lorry driver under the employment of first opposite party and the vehicle was insured with the appellant and he suffered an accident on 26.2.2002, which ultimately resulted in injures to his right femur bone which was not united after treatment and resulting in two inches of shortening of the leg and restriction in movement of right hip on account of compression of pelvic nerve. All other aspects regarding the findings as to employer and employee relationship, wages as well as extent of injury are not in controversy in both the cases. As mentioned above, the learned counsel for the appellant in both the matters has raised the fundamental question as to whether the Commissioner was justified in awarding compensation on the basis of 100% loss of earning capacity of the respective claims, though as per the disability certificate the disabilities suffered were less than 100%. The learned counsel for the appellant has placed strong reliance upon RAMPRASAD BALMIKI V. ANIL KUMAR JAIN AND OTHERS[1], RAMESH KUMAR V. STATE OF HARYANA[2], RAJ KUMAR V. AJAY KUMAR AND ANOTHER[3] and ORIENTIAL INSURANCE COMPANY LIMITED V. MOHD NASIR AND ANTOEHR[4]. On the basis of the decisions aforesaid, the learned counsel contended that while assessing the compensation payable, the disability suffered by the injured as certified by the Doctor or Medical Board is relevant and that unless the disability suffered can be described as total permanent disablement as appended under Section 2(1) (l) of the Workmen’s Compensation Act, 1923, (for short “the Act”) such disability cannot be treated and assessed at 100% loss of earning capacity. The decision in RAMPRASAD BALMIKI V. ANIL KUMAR JAIN AND OTHERS (supra 1) is therefore strongly relied upon in the aforesaid propositions. The said principle is also reiterated in the related decisions referred to above. Per contra, the learned counsel for the respondent has raised two specific contentions that both the appeals are not entertainable in view of the fact that when these appeals were filed, the respective appellants had not deposited the entire awarded amount of compensation together with interest but it produced a certificate showing that they have deposited only an amount of compensation without the interest accrued. The learned counsel therefore submits that the appeals ought to be dismissed as not maintainable on the ground of Section 30 of the Act, which does not permit entertainment of appeals unless the compensation together with interest as awarded is deposited and certificate to that affect is produced at the time of filing of the appeal. I am not inclined to accept the said objection though the learned counsel for the respondent may be justified in law in raising the said objection. It has to be remembered that these appeals were filed in the year 2003 and the appellants have complied with Section 30 of the Act and the appeals were entertained. The respondent- claimant was heard and only thereafter the conditional interim order was granted. No such objection was raised by the learned counsel for the respondents at that stage. But only after a lapse of almost 8 years when these matters are being finally heard, rejection of the said appeals without entertaining them on merits, at this distance of time would be highly inequitable and unjust. The first objection of the learned counsel for the respondent- claimant is therefore, rejected. So far as the merits are concerned, the learned counsel for the respondent submits that under the definition of total permanent disablement as appended under Section 2(l) of the Act, the test for assessing the disablement is whether the workman is capable of performing the work, which he was doing at the time of accident. The learned counsel also placed reliance on Items 4 and 5 of Part I of schedule I of the Act as well as the circumstances that the drivers in both these appeals are now rendered unfit to work as drivers. The learned counsel therefore submits that keeping in view the nature of profession or the work which they were carrying on at the time of accident and on account of disablement suffered they are not in a position to carry out the same work or profession thereby the Commissioner has rightly assessed the disability as 100%. The learned counsel has placed strong reliance upon the decisions of NEW INDIA ASSURANCE COMPANY LIMITED V. SANTHOSH[5] as well as the decision of Supreme Court in PRATAP NARAIN SINGH DEO V. SRINIVAS SABATA[6] and other judgments of the Supreme Court in JANARDHAN.K V. UNITED INDIA INSURANCE COMPNAY LIMITED AND ANOTHER[7] and SURESH S. V. ORIENTAL INSURANCE COMPANY LIMITED AND ANOTHER[8]. In a latest decision in MOHAN SONI V. RAM AVTAR TOMAR AND OTHERS[9], the Supreme Court considered the very same question and upheld the loss of earning capacity assessed at 100% though the disability mentioned in Schedule I was 50%. Considering these rival contentions, the question therefore, requires consideration is whether the Commissioner was justified in assessing the loss of earning capacity of respective claims at 100%? The material on record so far as the first case is concerned shows that as per the evidence of AW- 2, who is the professor of Ophthalmology, the claimant was examined by conducting necessary tests and as certified by Ex A-9, which was found that his right eye optic atrophy with divergent sprint with chronic dacryo cystitis, whereas the left eye is normal as per the schedule injury, which has been certified that the claimant suffered 30% disability, which is permanent though it is certified that the claimant can drive the auto but he cannot drive perfectly as he used to drive. In the second case, as per the evidence of doctor AW-2, who is Professor in Orthopaedic Surgeon, it was found that the claimant on examination clinically as well as radiologically established as per certificate Ex.A-34 that he was having intertrochantic fracture of right femur with non-union, resulting in 2” shortening of the leg and restriction of movements of right hip. The claimant also had a fracture of ileum, which is united, but the claimant cannot squat properly, cannot walk without the help of crutches for long distances having pain in sitting position on account of pelvic compression. Though the doctor had certified the injury as a disability to the extent of 50%, the learned Commissioner has assessed the loss of earning capacity to 100%. In both the cases, it could thus be seen that though both the claimants are professional drivers, their capacity to drive the vehicle as a professional driver is so seriously affected, as it is not possible for either of them to carry out their profession as a driver. The case of the claimant in the first case is that there is no eye vision in his right eye and the left eye is functioning normal with which he himself is not in a position to drive the vehicle nor perhaps can secure renewal of his driving licence on account of his medical condition. The claimant in the second case, who cannot even sit, cannot be expected to drive heavy vehicle for long distances with the disability of shortening of the leg and other injuries referred to above. The assessment of the loss of earning capacity to 100% has been reviewed and settled in the latest decision of the Supreme Court in MOHAN SONI VS. RAM AVTAR TOMAR AND OTHERS (supra-9) referred to above, which also refers to the views of various other judgments of the Supreme Court on which the learned counsel for the appellants also placed reliance. The paragraphs 8, 9 of the said judgment therefore would be appropriate to be extracted hereunder: “8. The question of loss of earning capacity resulting from amputation of one of the legs in the case of a tanker driver was considered by this Court in K. Janardhan v. United India Insurance Company Limited and Another, AIR 2008 SC 2384: (2008) 8 SCC 518: 2008 II LLJ 960. In that case, a tanker driver suffered serious injuries in a motor accident and as a result, his right leg was amputated upto the knee joint. He made a claim under the Workmen’s Compensation Act, 1923. The Commissioner for Workmen’s Compensation held that disability suffered by him as a result of the loss of the leg was 100% and awarded compensation to him on that basis. In appeal, the High Court, like in the present case, referred to the Schedule to the Workmen’s Compensation Act, 1923 and held that the loss of a leg on amputation amounted to reduction in the earning capacity by 60% and, accordingly, reduced the compensation awarded to the tanker driver. This Court set aside the High Court judgment and held that the tanker driver had suffered 100% disability and incapacity in earning his keep as a tanker driver as his right leg was amputated from the knee and, accordingly, restored the order passed by the Commissioner of Workmen’s Compensation. In K. Janardhan v. United India Insurance Company Limited and another (supra) this Court also referred to and relied upon an earlier decision of the Court in Pratap Narain Singh Deo v. Srinivas Sabata AIR 1976 SC 222: (1976) 1 SCC 289: 1976 –I-LLJ-235, in which a carpenter who suffered an amputation of his left arm from the elbow was held to have suffered complete loss of his earning capacity. 9. In a more recent decision in Raj Kumar v. Ajay Kumar and Another, (2011) 1 SCC 343: LNIDN 2010 SC 998, this Court considered in great detail the correlation between the physical disability suffered in an accident and the physical disability suffered in an accident and the loss of earning capacity resulting from it. In paragraphs 10, 11 and 13 of the judgment in Raj Kumar vs. Ajay Kumar and Another (supra), this Court made the following observations: “10. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, the percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. 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. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. 11. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). WE may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that the percentage of loss of earning capacity as a result of the permanent disability is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation. (See for example, the decisions of this Court in Arvind Kumar Mishra v. New India Assurance Co. Ltd. (2010) 10 SCC 254 and Yadava Kumar v. National Insurance Co. Ltd. (2010) 10 SCC 341). 13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.” Applying the aforesaid decision to the facts of the case on hand, I am of the opinion that keeping in view the fact that both the claimants are professional drivers and now they are not in a position to undertake the said professional work any more, irrespective of disability certified by the doctors concerned, the loss of earning capacity of the respective claimants is 100%. The findings of the Commissioner in the respective awards assessing loss of earning capacity at 100% therefore appears fully justified and warrants no interference. Both the appeals are accordingly dismissed. However there shall be no order as to costs. ___________________________ VILAS V. AFZULPURKAR, J DATE: 02.08.2012 KA [1] (2008) 9 SCC 492 [2] 2010-I-LLJ-841 (SC) [3] (2011) 1 SCC 343 [4] 2010 (1) ALD 74 (SC) [5] (2011 (130) FLR 113) [6] (1976) 1 SCC 289 : 1976 SCC (L&S) 52 [7] 2008-II-LLJ-960 (SC) [8] 2010-I-LLJ- 839 (SC) [9] 2012-II-LLJ-554 (SC)