*HON’BLE SRI JUSTICE R. KANTHA RAO + C.M.A.No. 3036 of 2001 %Dated: 18.06.2010 BETWEEN: # Pamarthi Subba Rao .. Appellant And $ H.Rama Rao and others .. Respondents !Counsel for the Appellant: Mr P.Subba Rao ^ Counsel for the Respondent : Mr M.Bhaskara Lakshmi <GIST: > HEAD NOTE: ? Cases [1] (2009)6 SCC 280 2. 2007(4) ALT 607 (D.B) 3. AIR 1976 SC 222 THE HON’BLE MR JUSTICE R. KANTHA RAO C.M.A.No. 3036 of 2001 DATED: 18.06.2010 BETWEEN: Pamarthi Subba Rao .. Appellant And H.Rama Rao and others .. Respondents THE HON’BLE MR JUSTICE R. KANTHA RAO C.M.A.No. 3036 of 2001 JUDGMENT: This is an appeal from the order, dated 04.02.1999 passed by the Commissioner for Workmen’s Compensation, Eluru in W.C.No.111 of 1997. 2. Pamarthi Subba Rao, the injured workman, who was the applicant before the Tribunal preferred the present appeal challenging the order passed therein on the ground though the permanent disability suffered by him on account of the injuries sustained in the accident occurred is 50% which is partial and permanent in nature according to the doctor-PW2, who treated him and issued disability certificate, the learned Commissioner ought to have considered the disablement as total (100%) since he was not capable of discharging the duties as a workman which he was discharging prior to the accident. 3. I have heard Sri N.Subba Rao, learned counsel appearing for the appellant and Smt M.Bhaskara Lakshmi, learned counsel appearing for the second respondent-insurance company. 4. In fact, learned single judge in this matter earlier made a reference to the Division Bench on the disputed question whether the appellant is entitled for compensation considering his disability as 100%. Though the injuries suffered by him in the accident are not the injuries mentioned in (i) are in Workmen’s Compensation Act, 1923 or the combination of injuries specified in Part II of Schedule 1 of Workmen’s Compensation Act, 1923. According to the learned single Judge, who had an occasion to deal with the present case earlier, there are conflicting judgments and disputed question and thus he made the reference. 5. Pursuant to the reference made by the learned Single Judge, the Division Bench of this Court by order dated 12.03.2008 answered the reference in C.M.A.No.3036 of 2001 (from the present case) as follows: “ In all the above circumstances, the reference is answered as follows: “inspite of there being no sufferance of injuries mentioned in Part II of Schedule I, if there is 100% disability to do the work, the workman was doing earlier, it has to be treated that the workman has suffered 100% disability”. The reference is answered accordingly.” 6. In fact, the Division Bench while answering the reference straight away held that the appellant-workman is entitled for compensation for 100% functional disability. However, in this appeal Smt M.Bhaskara Laxmi, learned counsel appearing for the 2nd respondent-insurance company would submit that though the Division Bench answered the reference in terms above indicated, the issue requires re-consideration in the light of the judgment of the Supreme Court in ORIENTAL INSURANCE COMPANY LIMITED v MOHD.NASIR AND ANOTHER[1] wherein it was held that while granting the compensation the tribunal shall not deviate from the opinion of the doctor regarding the percentage of loss of earning capacity. The Tribunal is under a duty to record the reasons if it deviates from the opinion of the doctor. 7. Reliance is also placed by the learned counsel on NEW INDIA ASSURANCE COMPANY LTD., SECUNDERABAD v ABDULKHADER JILANI @ JILANI AND ANOTHER[2] wherein a Division Bench of this Court while answering the similar reference held that in the case of non schedule injuries under the Workmen’s Compensation Act, 1923. The quantum of compensation shall be determined depending on the assessment made by qualified medical practitioner on the issue of loss of earning capacity on the workman and in the case of non schedule injury, examination of qualified medical practitioner is an essential requirement of law to assess loss of earning capacity. 8. The essence of the submission made by the learned counsel appears to be that the Division Bench while answering the reference in the present case did not take into consideration the principle laid down by the Apex Court and another Division Bench of this Court earlier which is to the effect that for assessing loss of earning capacity in relation to functional disability sustained by the workman the opinion of the qualified medical practitioner is a essential requisite. 9. I have gone through the judgment rendered by the Hon’ble Division Bench answering the reference in the present case. The learned Judges of the Division Bench referring to the various judgments of Hon’ble Supreme Court as well as the judgments of this Court rendered the decision following the ratio laid down by the Apex Court in PRATAP NARAIN SINGH DEO v SHRINIVAS SABATA[3] and interpreting the relevant provisions of Workmen’s Compensation Act relating to the concept of total disablement. 10. In para-5 of its judgment in Pratap Naraiah Singh Deo case (3rd cited) the Apex Court held as follows: “The injured workman in this case is carpenter by profession…. By the loss of left hand above the elbow, he had 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 finding. 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 I, because it was not the appellant’s case before the Commissioner that amputation of the arm was from 8” from 580 of the acromion to less than 4 ½” below the tip of olecranion. A new case cannot therefore be allowed to be set up on facts which have not been admitted or established.” 11. Even according to the judgment relied upon by the learned counsel appearing for the second respondent-insurance company the Commissioner or the High Court while determining the loss of earnings suffered by the workman shall be guided only by the percentage of physical disability assessed by the doctor. If there is evidence showing that the functional disability suffered by the injured workman totally incapacitates him from discharging the function, he was doing prior to the accident, it is well within their competence to consider as to whether the disability is total for the purpose of determining the compensation. In the judgment relied upon by the learned counsel 1st cited above, the Hon’ble Supreme Court only indicated that when the Commissioner while determining the compensation, deviates from the opinion as to the percentage of disability expressed by the doctor, he has to assign adequate reasons. In the absence of any such reasons, the finding of the Commissioner cannot be considered. 12. In the instant case, it was urged before the Commissioner that though the physical disability assessed by the doctor (PW.2) is 50% the workman became unfit to drive any vehicle and the disablement has to be considered as 100% for computing compensation. The Commissioner did not accept the contention and held that he was guided by the statutory presumption in Schedule I attached to the Act as to the nature of applicants disablement which would result only in 50% disability and accordingly granted compensation on the premise that the disability is only 50%. 13. In this context, it may be noticed that there is no dispute about the fact that the crush injuries suffered by the appellant/workman ultimately resulted in amputation of the right leg up to the knee level and he who was a driver by profession at the time of the accident became in capable of driving of any vehicle due to the disablement suffered by him. In such an event, according to Section 2(L) of Workmen’s Compensation Act, the disablement shall be considered as total. The learned Judges of the Division Bench of this Court on thorough consideration of all the aspects and on analyzing the principles laid down Apex Court as well as this Court in various judgments held that having regard to the evidence forthcoming and in the circumstances of the present case, the disability shall be considered as total since the reference answered by the Division Bench is made by the learned Single in the present case, the said judgment is binding on this Court and this Court cannot take any different view on the basis of opinion expressed by the Apex Court in a subsequent case. 14. The compensation therefore, shall be awarded considering the disability suffered by the appellant as total. 15. The learned Commissioner awarded compensation of Rs.1,22,310/- considering the loss of earning capacity which is equivalent to 50% of the disability sustained by the appellant. Therefore, if the disability is considered as total, the compensation comes to Rs.2000/- x 60% x 203.85 = Rs.2,44,620/-. Accordingly, the appellant is entitled for compensation of Rs.2,44,620/-. The enhancement is, therefore, Rs.1,22,310/-. The second respondent- employer and the insurer are jointly and severally liable to pay compensation and they are directed to deposit the amount within a period of 30 days from the date of the judgment, failing which the amount shall carry interest at the rate of 6% per annum from the said date till the date of realisation. With the above enhancement in the compensation, the C.M.A. is allowed. There shall be no order as to costs. _______________ R. KANTHA RAO, J Date: 18.06.2010 Note: L.R copy to be marked b/o kvrm THE HON’BLE MR JUSTICE R. KANTHA RAO C.M.A.No.3036 of 2001 Date: 18.06.2010 [1] (2009)6 SCC 280 [2] 2007(4) ALT 607 (D.B) [3] AIR 1976 SC 222