Case: ARJUN S/O. RAMANNA @ RAMU Vs. IFFCO TOKIO GENERAL INSURANCE CO. LTD. &amp; ANR

1. The appellant was an employee of the second respondent. He was doing the job of driving an auto-rickshaw used as a goods carrier. On 18th February 2009, while the appellant was driving the vehicle, he suddenly noticed a pothole on the road. Therefore, he applied brakes. As a result, the vehicle went out of control, and it overturned. The appellant sustained severe injuries. The vehicle was insured with the first respondent company.2. The appellant filed a claim under the Workmens Compensation Act 1983, now titled as the Employees Compensation Act 1923 (for short, the said Act). The claim was filed on the footing that due to amputation of his right upper limb above the wrist joint, he has completely lost the capacity to drive a vehicle. He contended that he had suffered total disablement due to the said injury. The learned Commissioner for Workmens Compensation allowed the petition by upholding the said contention. The learned Commissioner held that due to amputation of the right upper limb, he has rendered himself unfit for driving a vehicle and, therefore, the appellant has suffered total disablement.3. The first respondent preferred an appeal before the High Court. The appeal was partly allowed by holding that the disability ought to have been assessed as 70% partial permanent disability instead of 100%. To that extent, the compensation was reduced.

Reasoning: 6. The impugned judgment of the High Court proceeds on the accepted position that the appellant was employed as a driver to drive an auto-rickshaw used for carrying goods. The only ground on which the High Court reduced the compensation was that the appellant did not suffer from total disablement. Therefore, the Commissioner for workmens compensation committed an error by taking the disability at 100%. The first respondent cannot dispute its liability to pay compensation as the High Court has held the said respondent liable. The first respondent has not challenged the impugned Judgment. Therefore, the argument that the appellant did not possess a driving licence to drive a commercial goods vehicle is not open to the first respondent.8. What the doctor has stated in paragraph 5 is his opinion as regards the percentage of disability. But in paragraph 4, the doctor has clearly stated that the appellant has suffered from functional loss of 100% of the right upper limb and cannot perform the job of a driver forever due to amputation of his right upper limb.9. In the case of Pratap Narain Singh Deo (supra) in para 5, this Court held as under:5. The expression total disablement has been defined in Section 2(1)(e) of the Act as follows:(1) total disablement means such disablement whether of a temporary or permanent nature, as incapacitates workman for all 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 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 follows:The injured workman 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 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 1, because it was not the appellants case before the Commissioner that amputation of the arm was from 8 from tip of acromion to less than 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.10. There is no dispute that the appellant suffered from disablement of permanent nature. The disablement has incapacitated him from doing the work which he was capable of doing. The said work was of driving a vehicle. Therefore, the learned Commissioner for Workmens Compensation was right in holding that the disability of the appellant will have to be treated as 100% disability. Hence, the case of the appellant will be covered by the definition of total disablement.11. Therefore, the impugned judgment cannot be sustained and will have to be set aside. We are informed that the entire compensation amount as directed by the Commissioner was deposited by the first respondent in the High Court and the appellant has withdrawn the amount payable as per the impugned Judgment of the High Court. Therefore, the appellant will be entitled to withdraw the balance amount lying deposited in the High Court with interest, if any, accrued thereon.