HIGH COURT OF CHHATTISGARH AT BILASPUR MISC. APPEAL No. 887/2004 APPELLANT RESPONDEITT Saheb Singh @ Baba Singh Versus Smt. Tarvindar Kaur and another ORDER ,@Qst_for £) -4-2010 Sd/- - N.K. Agrawal Judge g -4-20IO-- '\{L> t N(| r rfV _ __ii tj[ii_ .w^,t9~^^^^i^^^:^.^ ^, 1 HIGHCOURT OF CHHAmSGARH AT BILASPUR APPELLANT CLAIMANT RESPONDENT MISC. APPEAL No. 887/2004 Saheb Singh @ Baba Singh aged about 27 years, S/o Shri Malkit Singh, R/o Meerapur, Post Tatibandh, Raipur (CG) Versys Kaur NON-APPLICANTS Smt. Tarvindar Kaiir W/o Harvinder Singh Oberay, R/o Plot No. 102, 103 Bababudhajee Nagar, Nagpur (M.S.) Owner of the vehicle N0. MH 31- AP/2341 The National Insurance Company Ltd. through Manager, Issiung office- Poul Complex, Ajani Chowk, Nagpur (M.S.) through Mandal Office, Mobin Mahal, G.E. Road, Raipur (CG) INSURER OF THE VEHICLE N0. MH 31-AP/2341, INS. POLICY N0. 271100/31/02/6302874 through insured SB:- Hon. Shri N.K. Agarwal, J. PRBSENT:- Shri Malay Kumar Bhaduri, Adv. for the appellant. ORDER (^ -4-2010) PetN.K. Agarwal, J 1. This is claimant's appeal seeking enhancement of compensation in the award passed by the Commissioner, Workman Compensation, Labour Court, Raipur vide its award dated 16-7-2004 in Case No. 88/WC Act/NF/2003. 2. Brief facts of the case are as under:- 3. On 6-2-2003, the appellant while driving truck No. MH 31 AP/2341 under employment of respondent No. 1 met with an accident during the course of employment and as a result his right leg was amputated above knee. His permanent disability was assessed to the extent of 80%. At the tiine of accident he was at the age of 27 years and was getting the salary Rs. 3800/- per month. 4. Learned Commissioner on appreciation of evidence led, material placed and submissions made held, accident arose 7, 8. out of and during the course of employment; the appellant was permanentiy disabled to the extent of 80%; was of the age of 27 years at the time of accident; his salary was 3800/- and taldng into consideration the loss of eaming capacity as 80% awarded Rs. 3,79,264/-. However, interest in terms of Section 4A(3)(a) of the Workmen's Compensation Act, 1923 (briefly, 'the Acf) has not been awarded. Shri Bhadiu-i leamed counsel for the appellant would contend that the appeUant was driver; as per Motor Vehicles Act, he would now be disqualified from even getting a driving Ucence, suffered 100% disability and incapacity in eaming, therefore the award passed by learned Commissioner deserves to be suitably modified by taking into consideration the loss of earning capacity as 100%. He would further contend that in terms of provision contained in Section 4A(3)(a) of the Act, leamed Commissioner ought to have awarded interest upon the amount of compensation at least at the rate of 12% per annum. On the other hand, Shri Raj Awasthi, leamed counsel for the respondent supported the award and contended that in the facts and circumstances of the case, the amount awarded is just and reasonable which deserves to be upheld. I have heard learned counsel for the parties, perused the award impugned and record of the Court below. Supreme Court in case of K. Janardhan -v- United India Insurance Comoany Limited and another1 Has held in para 5 and 6 of its judgment as under :- "5. Tlie learned counsel for the appellant has raised only one argument during the courseof the hearing. He has submitted that the appellant claimant being a tanker driver, the loss of his right leg ipso facto meant a total disablement as understood in terms of Section 2(l)(i) ofthe Workmen's Compensation Act and assuch the appellant was entitled to have his compensatibn computed on that basis. In support of this plea, the learned counsel has placed reliance on Pratap Narain ^) *%< "^ 9. Singh Deo v. Srinivas Sabata (1976)1 SCC 289. The cited case pertained to a carpenter who had suffered an amputation of his left arm from fhe elbow and this Court held that this aruounted to a total disability as the injury was of such a nature that the claunant had been disabled from aU. work which he was capable of perfomiing at the time of the accident. It was observed as under: (SCC p. 291, para 5) "5. The expression "total disablement" has been defined in Section 2(1)(?) of the Act as follows: '2. (1)(Q "total disablement" means such disablement, whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of the aceident resulting in such disablement;' It has not been disputed before us that the injury was of such a nature as to cause pennanent disablement to the respondent, and the question for consideration is whether the disablement incapacitated the respondent for all work which he was capable of performing at the time of the accident. The Commissioner has examined the question and recorded his finding as foUows: The injured workm.an in this case is carpenter by profession.... By loss of the left hand above the elbow, he has evidently been rendered unfit for the work of carpenter as the work of carpentry cannot be done by one hand only. This is obviously a reasonable and correct Bnding. Counsel for the appellant has not been able to assail it on any ground and it does not require to be corrected in this appeal. There is also no justification for the other argument which has been advanced with reference to Item. 3 of Part II of Schedule 1 , because it was not the appellant's case before the Conimissioner that amputation of the arm was from 8" from tip of acromion to less fhan 4%" below the tip of olecranon. A new case cannot therefore be allowed to be set up on facts which have not been admitted or established." 6. Applying the ratio ofthe cited judgment to the facts of the present case we are of the opinion that the appeUant herein has also suffered a 100% disability and incapacity in earning his keep as a tanker driver as his right leg had been amputated from the knee. Additionally, a perusal of Sections 8 and 9 of the Motor Vehicles Act, 1988 would show that the appellant would now be disqualified from even getting a driving licence." Supreme Court in case of S. Suresh -v- Oriental Insurance Co. Ltd and Anr 2 has observed in para 7 and 8 as under :- 22010AIRSCW 437 "•-'•^ 10. "7. The correctness of the impugned judgment is'' questioned on the ground fhat the claimant being a lorry driver, the loss of his right leg ipso facto meant a "total disablement" as understood in terms of Section 2(1)(1) of the Act and as such the compensation payable to the claimant had to be computed on fhat basis. In support of the plea, reliance is placed on a four Judge Bench decision of this Court in Pratap Narain Singh Deo v. Srinivas Sabata & Anr. ((1976) 1 SCC 289.). In fhat case, a carpenter had siiffered amputation of his left arm frora the elbow. This Court held that this amounted to a total disability as the injury was of such a nat-ire that the claimant had been disabled from all work which he was capable of performing at the time of the accident. It was observed as under:- "5. The expression "total disablement" has been defnied in Section 2(1)(1) ofthe Act as follows:- 5. The expression "total disablement" has been defined in Section 2(1)(Q ofthe Act as follows: "2. (!)(() "total disablement" means such disablement, whefher of a temporary or permanent nature, as incapacitates a worktnan for aU work which he was capable of performing at the time of the accident resulting in such disablement;' It has not been disputed before us that the injury was of such a nature as to cause permanent disablement to the respondent, and fhe question for consideration is whether the disablement incapacitated the respondent for all work which he was capable of performing at the time of the accident. The Cominissioner has examined the question and-recorded his finding as follows: The injured workman in this case is carpenter by profession.... By loss of the left hand above fhe elbow, he has evidently been rendered unfit for fhe wprk of carpenter as the work of carpentry cannot be done by one hand only. This is obviously a reasonable and correct finding. In my view, the ratio of the above judgments is squarely applicable to the facts at hand. Therefore, in my opinion on account of amputation of right leg above knee, the appellant is rendered unfit for the work of a driver, which the appellant was performing at the time of accident, resulting in the said disablement. Therefore he has lost 100% of his eaming capacity as driver, more so when he is disqualified from even getting a driving licence under the Motor Vehicles Act. II 12. 13. 14, 15. So far as next question is concerned, Section 4A(3)(a) of thf Act reads as under:- 4-A. Compensation to be paid when due and penalty for default.- (1) XXX XXX (2) xxx xxx. (3) Where any employer is in default in paying the compensation due under this Act within one month from the date it fell due, the Commissioner shaU- (a) direct that the employer shall, in addition to ffie an'iount of the arrears, pay siinple interest thereon at the rate of twelve per cent per annum or at such higher rate hot exceeding the inaximum of the^lending rates of any scheyuled bank as may be sp^cified by fhe Central Govemment, 'by notification in the OfBcial Gazette, on the amount due; and As per the above provision where any employer is in default in paying compensation due iinder this Act within one month from the date it fell due, the Commissioner shall direet that the employer shall in addition to the amount of arrears pay simple interest thereon at the rate of 12% per annum or at such higher rate not exceeding maximum of the lending rate of any scheduled bank. The language used in the section thus is mdndatory in nature and whenever learned Commissioner passes an award, he shall also to direct the employer to pay interest at least at the rate of 12% per annum from the date it fell due. In the considered opinion of this Court, leamed commissioner was not justified in not awarding interest. For the foregoing, the appeal is allowed in part. The appellant is entitled for Rs. 4,74,080.40 as compensation with interest at the rate of 12% per annum from the date of award. The Insurance Company is granted three months time to pay the balance amount of award and interest. No order as to costs. Sd/- • N.K.Agrawal Judge