CHANDRAMMA versus MANAGER, REGIONAL OFFICE, NCC LIMITED AND ANR.
[2022] 17 S.C.R. 713, Supreme Court of India, 2022
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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   [2022] 17 S.C.R. 713
713
CHANDRAMMA
 v.
MANAGER, REGIONAL OFFICE, NCC LIMITED AND ANR.
(Civil Appeal No. 9069 of 2022)
DECEMBER 09, 2022
[KRISHNA MURARI AND S. RAVINDRA BHAT, JJ.]
Employees Compensation Act, 1923 – s.2(1)(l) – Total
Disablement – When –Determination of quantum of compensation
– Appellant, a skilled labour was involved in construction work,
fell down from second floor to ground floor when the centering
plate collapsed on her head – Commissioner for Workmen’s
Compensation while holding disability to the whole body at 20%,
assessed compensation at Rs.1,75,000/- – High Court partly allowing
the appeal filed by the appellant enhanced the compensation to
Rs.2,19,512/- – Held: Appellant suffered from disablement of
permanent nature which incapacitated her from doing the work
which she was capable of doing, which is that of a laborer – Thus,
the Commissioner was wrong in holding that the disability of the
appellant will have to be treated as 20% disability as work of the
appellant involves lifting heavy weights and she has been rendered
incapable from doing such work due to her disability – Case of the
appellant is covered by the definition of ‘total disablement’, being
100% disabled – Functional disability of the appellant is liable to
be assessed as 100%, compensation determined accordingly – Total
compensation works out to be Rs.9,26,216/- rounded of to Rs.
9,30,000/- to be paid with interest @ 9% per annum from the date
of making the
application till the date of actual payment –
Respondent-Insurance Company to pay the enhanced amount of
compensation as directed.
Employees Compensation Act, 1923 – Objective of –
Discussed.
Employees Compensation Act, 1923 – s.2(1)(l) – Total
Disablement – Held: Total Disablement is defined u/s. 2(1)(l) to
mean 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 accident resulting in such disablement
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and every injury specified in Part I of Schedule I or combination of
injuries specified in Part II of Schedule I where aggregate
percentage, as specified in Part II against those injuries amounts
to 100% or more – Further, two types of Total Disablement-
Temporary Total Disablement & Permanent Total Disablement,
discussed.
Employees Compensation Act, 1923 – s.2(1)(g) – Partial
Disablement – Temporary Partial Disablement & Permanent Partial
Disablement – Distinction between – Held: Distinction between the
two types of partial disablement depends on the fact whether the
disablement results in reduction of earning capacity in the particular
employment in which the employee was engaged at the time of the
accident or in all employment which the employee was capable of
doing – In the former case the partial disablement is called temporary
and in the latter case permanent – Every injury specified in Part Il
of Schedule I of the Employees’ Compensation Act shall be deemed
to result in permanent partial disablement.
Words and Phrases:
“Compensation”, “Just Compensation” – Discussed –
Employees Compensation Act, 1923 – ss.3, 4.
“Partial Disablement”, “Total Disablement”– Discussed –
Employees Compensation Act, 1923 – ss.2(1)(g), 2(1)(l) .
Allowing the appeal, the Court
HELD : 1.1 The appellant is suffering from permanent
partial disablement which also implies that she will not be able to
do anything manually such as unloading
building materials or using
hand tools like shovels or picks or operating other machinery.
Therefore, On the issue of disability, what is relevant is the
statement of the Dr. Mallikarjun who examined the appellant for
making an assessment of the disability. The disability report
showed that there is Permanent Partial Disability of about 58%
of the limb, which corresponds with 26% whole body. There is
no dispute that the appellant suffered from disablement of
permanent nature. The disablement has incapacitated her from
doing the work which she was capable of doing. The said work
was of that of a laborer. Therefore, the Commissioner for
Workmen’s Compensation was wrong in holding that the disability
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of the appellant will have to be treated as 20% disability as the
work of an appellant involves lifting heavy weights and the
appellant has been rendered incapable from doing such work due
to her disability. Hence, the case of the appellant will be covered
by the definition of ‘total disablement’, therefore, being 100%
disabled. Thus, it is an admitted position that the appellant can
no longer pursue the work of a labourer. [Paras 18-20][725-C-G]
1.2 The Accident incapacitated the appellant from carrying
out her vocation as a labourer. The impugned order passed by
the High Court is not liable to be sustained. The functional
disability of the appellant is liable to be assessed as 100% and,
accordingly, the compensation is to be determined. The functional
disability of the appellant being 100%, her age being 40 years
and income being Rs.8000/-, 60% whereof works out to be
Rs.4800/- and applying the multiplier of 184.17, as per Schedule
IV of the 1993 Act, the compensation works out to be Rs.8,84,016/
-. Adding an amount of Rs.42,200/- towards medical expenses
for which the bills were presented, the total compensation works
out to be Rs.9,26,216/- rounded of to Rs. 9,30,000/-. The appellant
shall also be entitled for payment of interest @ 9% per annum,
from the date of making the application till the date of actual
payment. The respondent Insurance Company to pay the
enhanced amount of compensation to the appellant along with
9% interest, calculated from the
date of making of the application
till the date of payment within six weeks from today. [Paras 23,
24][728-A-D]
Raj Kumar Vs. Ajay Kumar and Another (2011) 1 SCC
343 : [2010] 13 SCR 179; K.Janardhan Vs. United
India Insurance Co.Ltd. & Anr (2008) 8 SCC 518 :
[2008] 8 SCR 157; S.Suresh Vs. Oriental Insurance
Co. Ltd.& Anr. (2010) 13 SCC 777 : [2009] 14 SCR
990 – relied on.
Case Law Reference
[2010] 13 SCR 179
relied on
Para 16
[2008] 8 SCR 157
relied on
Para 21
[2009] 14 SCR 990
relied on
Para 22
CHANDRAMMA  v. MANAGER, REGIONAL OFFICE, NCC
LIMITED AND ANR.
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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9069
of 2022.
From the Judgment and Order dated 07.08.2018 of the High Court
of Karnataka, Kalaburgi Bench in Misc. First Appeal No.202250/
2017(WC).
Shankar Divate, Adv. for the Appellant.
Parijat Kishore, Adv. for the Respondents.
The Judgment of the Court was delivered by
KRISHNA MURARI, J.
Leave Granted.
2. The present appeal is directed against the final order dated
07.08.2018 passed by the High Court of Karnataka, Kalaburgi Bench
(hereinafter referred to as “High Court”) in Miscellaneous First Appeal
No. 202250/2017 (WC) filed by the Appellant praying to call for the
records and set aside the judgment and award dated 02.06.2017 passed
by Additional Senior Civil Judge and Commissioner for Employees
Compensation at Bidar (hereinafter referred to as “Commissioner”)
in E.C.A No. 12/2016. The High Court partly allowed the appeal of the
Appellant and assessed the income as Rs.8000/- per month and
accordingly computed the compensation at Rs. 2,19,512/-.
3. Briefly, the facts relevant for the purpose of this appeal are as
follows:
3.1 The Appellant was engaged in the construction of government
hospital at Bidar, Karnataka. Respondent No. 1 was the contractor and
undertook the construction of upgradation of the hospital building. On
22.07.2015, Appellant along with other laborers were attending the work
of shifting the cement from ground floor to the second floor, the
centering
plate collapsed on the head of the appellant who fell down from second
floor to the ground floor.
3.2 Subsequently, the appellant was taken to the hospital wherein
it was established that she has sustained fracture of spinal bone and
compound fracture on various part of the body. After preliminary
treatment at government hospital at Bidar, the Appellant went to
Gurupadappa Nagmarpalli Hospital and was admitted as inpatient. The
appellant was informed by the Doctor that she would not be able to lift
any kind of weight through rest of her life.
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4. The appellant filed compensation application being E.C.A No.
12/2016 under Section 10 of Employees Compensation Act, 1923
(hereinafter referred to as “1923 Act”) before the Commissioner seeking
compensation of Rs. 20 Lakhs along with interest at 18% per annum
from the date of accident. Vide judgment and award dated 02.06.2017,
the Commissioner held that the Appellant has not proved that she was
paid Rs. 600 per day as cooli and accordingly computed notional income
at Rs.6000/- per month. Further, it was held that the disability to the
whole body is at 20% and as such assessed the compensation at
Rs.1,32,600/-. Accordingly, the Appellant was held to be entitled for
Rs.1,75,000/- as compensation.
5. Being aggrieved, the Appellant filed an Appeal under Section
30(1) of the 1923 Act before the High Court praying to call for the
records and set aside the judgment and award dated 02.06.2017. Vide
final order dated 07.08.2018, the High Court partly allowed the appeal.
The Operative portion of the order reads as under: -
“Heard both the learned counsel. The relationship between
the employee and employer has not been disputed. The only
grounds taken by the counsel for the employee is in respect
of income. Though it was the case that the income of Rs. 8,000/
- is to be accepted, the same is disbelieved and the
commissioner has assessed the income at Rs. 6,000/- per month
which is lower in side. Though it is claimed that the respondent
has not seriously disputed
the income of the claimant, under
these circumstances, the claimants are entitled for enhanced
income of Rs. 8,000/-. Accordingly, same is to be assessed. As
per Section 4(1)(b) of the Employees Compensation Act 1993,
60% of the monthly wages of injured employee has to be
multiplied by relevant factor 184.17 which is applicable to
the age of 40 years. Accordingly, calculation is Rs. 8,000/- X
60% = Rs. 4,800/-. Hence Rs. 4,800 X 184.17 which comes
to Rs.8,86,560/-. PW2 the doctor’s evidence is that injured
suffered 20% disability to the whole body and Tribunal assessed
the disability at 20%. Hence the calculation is Rs.8,86,560 X
20%, which comes to Rs.1,77,312/- and same is awarded.
Order of the E.C. Commissioner stands modified. Enhanced
amount carries interest. Medical expenses of Rs. 42,200/- as
ordered by the Commissioner is retained. In total, the
CHANDRAMMA  v. MANAGER, REGIONAL OFFICE, NCC
LIMITED AND ANR. [KRISHNA MURARI, J.]
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compensation would be Rs.2,19,512/- the same is awarded.
Order stands modified. Appeal is partly allowed.”
6. We have heard Mr. Shankar Divate, Learned Counsel appearing
on behalf of the Appellant and Mr. Parijat Kishore, Learned Counsel
appearing on behalf of the Respondents.
7. Mr. Shankar Divate, Learned Counsel for the appellant
vehemently submitted that the Courts below failed to note that the
petitioner suffered spinal injury and the doctor had clearly and
categorically observed that professional disability is 100%. It was further
submitted that the minimum wages as fixed under the Workmen
Compensation Act cannot be lower than the actual wages earned by a
laborer and that the courts below ought to have granted the compensation
on the basis of the actual earning capacity and the appellant is
permanently disabled from working as labour at construction sites. It
was also submitted that the appellant was doing the construction work
and given the injury suffered by the petitioner, she would not be able to
do any other work by which she can earn her livelihood, therefore, the
grant of compensation of Rs.2,19,512/- for permanent disability is
inadequate and deserves to be enhanced.
8. Per contra, Learned Counsel for the Respondents urged that
the grant of compensation awarded by the High Court is adequate and
requires no interference by this Court.
9. We have carefully considered the rival contentions of the learned
counsel appearing for the parties and perused the entire records. The
issue involved in the instant matter primarily relates to the determination
of quantum of compensation awarded under various heads by the
Commissioner and the High Court.
10. Before adverting to the merits of the case, it is necessary to
analyse the meaning of compensation awarded in cases where the victim
has suffered permanent partial disability. In common parlance,
compensation is often described as “something, typically money,
awarded to someone in recognition of loss, suffering or injury”.
Under the Workmen’s Compensation Act, 1923, it is mandatory for the
employers to pay compensation to their employees or workmen for a
work-related accident, fatality, injury, or illness. The Objective of the
1923 Act is two-fold. First, it enables employees and their dependents to
get compensation from their employers in case an accident causes an
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employee’s death or disability; second, it mandates employers to pay
compensation to their workers if they contract certain job-related illnesses
or diseases.
11. In relation to the above objective, it is essential to advert to
Section 3 of the 1923 Act which states that an employer is liable to pay
damages to its workers under the following conditions:
i.
If a worker has an occupational disease mentioned under
Part A, B, C of Schedule III. The disease has to be a result
of an injury by accident during work hours.
ii.
An injury sustained by an employee during work that leads
to total or partial disability
iii.
Death of an employee due to a work-related hazard.
12. Ideally, the compensation should be provided to the employees
against the hazards of employment to which an employee is exposed.
This also includes any occupational disease or industrial accident that
the employee may encounter arising out of or during the course of
employment which leads to disability or death. Specifically, a worker is
entitled to compensation in case of
i.
Death
ii.
Permanent Total Disablement
iii.
Permanent Partial Disablement
iv.
Temporary disablement- both total and partial
v.
It has contracted an occupational disease.
13. Disablement is a wide term and under the 1923 Act, it is divided
into two categories ie., Partial disablement and total disablement.
According to Section 2(1) (g) of the Act ‘Partial Disablement’ means,
where the disablement is of a temporary nature,
such disablement
reduces the earning capacity of an employee in any employment in which
he was engaged at the time of the accident resulting in the disablement,
and, where the disablement is of a permanent nature, such disablement
as reduces his earning capacity in every employment which he was
capable of undertaking at that time. Thus, Section 2(1) (g) classifies
partial disablement into two kinds, namely, (a) Temporary partial
disablement and, (b) Permanent partial disablement.
CHANDRAMMA  v. MANAGER, REGIONAL OFFICE, NCC
LIMITED AND ANR. [KRISHNA MURARI, J.]
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13.1 The distinction between the two types of partial disablement
depends on the fact whether the disablement results in reduction of
earning capacity in the particular employment in which he was engaged
at the time of the accident or in all employment which the employee was
capable of doing. In the former case the partial disablement is called
temporary and in the latter case permanent. Every injury specified in
Part Il of Schedule I of the Employees’ Compensation Act shall be
deemed to result in permanent partial disablement.
14. Whereas, “Total Disablement” is defined under Section 2(1)(l)
to mean 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 accident resulting in such disablement and
every injury specified in Part I of Schedule I or combination of injuries
specified in Part II of Schedule I where aggregate percentage, as
specified in Part II against those injuries amounts to 100% or more. Total
disablement is of two types-:
i.
Temporary Total Disablement– In temporary total
disablement the earning capacity of a workman is lost for a
temporary period, for all work which he was capable of
performing at the time of accident.
ii.
Permanent Total Disablement– Total permanent disability
(TPD) is a condition in which an individual is no longer able
to work due to injuries. Total permanent disability, also called
permanent total disability, applies to cases in which the
individual may never be able to work again.
15. Taking the type of disability into concern, just compensation
should to awarded to the person aggrieved. “Just Compensation” should
include all elements that would go to place the victim in as near a position
as she or he was in, before the occurrence of the accident. Whilst no
amount of money or other material compensation can erase the trauma,
pain and suffering that a victim undergoes after a serious accident, (or
replace the loss of a loved one), monetary compensation is the manner
known to law, whereby society assures some measure of restitution to
those who survive, and the victims who have to face their lives. Under
Section 4 of the 1923 Act, the amount of compensation an employer has
to provide workers is as follows:
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i.
Death of the worker: 50% of the worker’s monthly wages
multiplied with relevant factors; or 1,20,000, whichever is
more.
ii.
Permanent Total Disability: 60% of the monthly wages,
multiplied by relevant factor; or 1,40,000, whichever is
more.
iii.
Permanent Partial Disability: In such cases, the amount
payable is a percentage of the loss of earning capacity due
to the injury. These injuries are mentioned in Part II of
Schedule I of the Act.
iv.
Temporary Disability: 25% of the employee’s monthly
wages.
16. A three-Judge Bench of this Court in Raj Kumar Vs. Ajay
Kumar and Another1 categorically assessed the assessment of future
loss of earnings due to permanent disability. The operative portion of the
judgment reads as under: -
“9. The percentage of permanent disability is expressed by
the Doctors with reference to the whole body, or more often
than not, with reference to a particular limb. When a disability
certificate states that the injured has suffered permanent
disability to an extent of 45% of the left lower limb, it is not
the same as 45% permanent disability with reference to the
whole body. The extent of disability of a limb (or part of the
body) expressed in terms of a percentage of the total functions
of that limb, obviously cannot be assumed to be the extent of
disability of the whole body. If there is 60% permanent
disability of the right hand and 80% permanent disability of
left leg, it does not mean that the extent of permanent disability
with reference to the whole body is 140% (that is 80% plus
60%). If different parts of the body have suffered different
percentages of disabilities, the sum total thereof expressed in
terms of the permanent disability with reference to the whole
body, cannot obviously exceed 100%.
10. Where the claimant suffers a permanent disability as a
result of injuries, the assessment of compensation under the
1 (2011) 1 SCC 343
CHANDRAMMA  v. MANAGER, REGIONAL OFFICE, NCC
LIMITED AND ANR. [KRISHNA MURARI, J.]
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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, 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 permanently 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 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.
12. Therefore, the Tribunal has to first decide whether there
is any permanent disability and if so the extent of such
permanent disability. This means that the tribunal should
consider and decide with reference to the evidence:
(i) whether the disablement is permanent or temporary;
(ii) if the disablement is permanent, whether it is permanent
total disablement or permanent partial disablement,
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(iii) if the disablement percentage is expressed with reference
to any specific limb, then the effect of such disablement of
the limb on the functioning of the entire body, that is the
permanent disability suffered by the person.
If the Tribunal concludes that there is no permanent disability
then there is no question of proceeding further and
determining the loss of future earning capacity. But if the
Tribunal concludes that there is permanent disability then it
will proceed to ascertain its extent. After the Tribunal
ascertains the actual extent of permanent disability of the
claimant based on the medical evidence, it has to determine
whether such permanent disability has affected or will affect
his earning capacity.
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 ability (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.
14. For example, if the left hand of a claimant is amputated,
the permanent physical or functional disablement may be
assessed around 60%. If the claimant was a driver or a
carpenter, the actual loss of earning capacity may virtually
be hundred percent, if he is neither able to drive or do
carpentry. On the other hand, if the claimant was a clerk in
government service, the loss of his left hand may not result in
loss of employment and he may still be continued as a clerk
CHANDRAMMA  v. MANAGER, REGIONAL OFFICE, NCC
LIMITED AND ANR. [KRISHNA MURARI, J.]
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as he could perform his clerical functions; and in that event
the loss of earning capacity will not be 100% as in the case
of a driver or carpenter, nor 60% which is the actual physical
disability, but far less. In fact, there may not be any need to
award any compensation under the head of ‘loss of future
earnings’, if the claimant continues in government service,
though he may be awarded compensation under the head of
loss of amenities as a consequence of losing his hand.
Sometimes the injured claimant may be continued in service,
but may not found suitable for discharging the duties attached
to the post or job which he was earlier holding, on account
of his disability, and may therefore be shifted to some other
suitable but lesser post with lesser emoluments, in which case
there should be a limited award under the head of loss of
future earning capacity, taking note of the reduced earning
capacity.”
17. In the case at hand, the appellant is a skilled labour, who was
involved in the work of construction of hospital building. On 22.07.2015,
the appellant fell down from second floor to ground floor when the
centering plate collapsed on her head. It is pertinent to mention that
doctors who treated the appellant have held that she sustained fracture
of spinal bone and compound fracture on various parts of the body.
Appellant herein, contended that the contractor had not provided any
safety gears, instead he allowed the
labourer to take the cement on the
head. The negligence of the contractor lead to appellant’s permanent
partial disablement. The commissioner computed the income of the
appellant as follows: -
“14. According to Section 4(1)(b) of the Employees
Compensation Act, 1993, 60% of monthly wages of the injured
employee has been multiplied by relevant factor. Hence in
view of the said provision, the compensation is calculated
(Rs. 6000 X 60/100 = Rs. 3600/-). The age of the claimant is
40%, it should be multiplied by relevant factor is 184.17. It
comes to Rs. 6,63,012/-. The PW-2 had opined that, there is
26% of disability to the whole body. But i feel it proper to
consider the whole-body disability @ 20% (Rs. 663012 X
20(permanent disability)/100 = Rs. 1,32,602/-). It is rounded
off to Rs. 1,32,600.
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15. The petitioner is not entitled for compensation in any other
conventional head. The petitioner had produced medical bills
of Rs. 42,200/- issued by United Hospital and Gurupadappa,
Hospital. As per Section 4 2 (A) Employees Compensation
Act, the medical expenses should be reimbursed. Hence, in
the entire petitioner entitle for Rs. 1,74,800/-. It should be off
to Rs. 1,75,000 as compensation from respondent no. 2.”
Further, the appellant filed an appeal before the High Court seeking
enhancement of compensation and same was allowed in part. The High
Court enhanced the compensation to Rs. 2,19,512/- by assessing the
income of the appellant at Rs. 8000/- per month.
18. Predominantly, it is to be noted that the appellant is suffering
from permanent partial disablement which also implies that she will not
be able to do anything manually such as unloading building materials or
using hand tools like shovels or picks or operating other machinery.
Therefore, On the issue of disability, what is relevant is the statement of
the Dr. Mallikarjun who examined the appellant for making an assessment
of the disability. The disability report showed that there is Permanent
Partial Disability of about 58% of the limb, which corresponds with 26%
whole body.
19. There is no dispute that the appellant suffered from disablement
of permanent nature. The disablement has incapacitated her from doing
the work which she was capable of doing. The said work was of that of
a laborer.
Therefore, the Commissioner for Workmen’s Compensation
was wrong in holding that the disability of the appellant will have to be
treated as 20% disability as the work of an appellant involves lifting
heavy weights and the appellant has been rendered incapable from doing
such work due to her disability. Hence, the case of the appellant will be
covered by the definition of ‘total disablement’, therefore, being 100%
disabled.
20. Thus, it is an admitted position that the appellant can no longer
pursue the work of a labourer. This Court in Raj Kumar Vs. Ajay Kumar
(Supra) held that:-
“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
CHANDRAMMA  v. MANAGER, REGIONAL OFFICE, NCC
LIMITED AND ANR. [KRISHNA MURARI, J.]
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he could not do as a result of the permanent ability (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.
14. For example, if the left hand of a claimant is amputated,
the permanent physical or functional disablement may be
assessed around 60%. If the claimant was a driver or a
carpenter, the actual loss of earning capacity may virtually
be hundred percent, if he is neither able to drive or do
carpentry. On the other hand, if the claimant was a clerk in
government service, the loss of his left hand may not result in
loss of employment and he may still be continued as a clerk
as he could perform his clerical functions; and in that event
the loss of earning capacity will not be 100% as in the case
of a driver or carpenter, nor 60% which is the actual
physical
disability, but far less. In fact, there may not be any need to
award any compensation under the head of ‘loss of future
earnings’, if the claimant continues in government service,
though he may be awarded compensation under the head of
loss of amenities as a consequence of losing his hand.
Sometimes the injured claimant may be continued in service,
but may not found suitable for discharging the duties attached
to the post or job which he was earlier holding, on account
of his disability, and may therefore be shifted to some other
suitable but lesser post with lesser emoluments, in which case
there should be a limited award under the head of loss of
future earning capacity, taking note of the reduced earning
capacity.
15.  It may be noted that when compensation is awarded by
treating the loss of future earning capacity as 100% (or even
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anything more than 50%), the need to award compensation
separately under the head of loss of amenities or loss of
expectation of life may disappear and as a result, only a token
or nominal amount may have to be awarded under the head
of loss of amenities or loss of expectation of life, as otherwise
there may be a duplication in the award of compensation. Be
that as it may.”
(emphasis supplied)
21. Similarly, in the case of K.Janardhan Vs. United India
Insurance Co. Ltd. & Anr.2, this Court held that :-
“The loss of earning capacity in the case of tanker driver
who had met with an accident, and lost one of his legs due to
amputation. The commissioner for Workment’s Compensation
assessed the functional disability of the tanker driver as 100
% and awarded compensation on that basis. The High Court,
however, referred to Schedule 1 to the Workmen’s
Compensation Act, 1923, and held that loss of a leg on
amputation resulted in only 60% loss of earning capacity.
This Court set aside the judgment of the High Court, and
held that since the workman could no logner earn his living
as a tanker driver due to loss of one leg, the functional
disability had to be assessed as 100%.”
22. This Court in the case of S.Suresh Vs. Oriental Insurance
Co. Ltd.& Anr.3,held that :-
“9. We are of the opinion that on account of amputation of
his right leg below knee, he is rendered unfit for the work of
a driver, which he was performing at the time of the accident
resulting in the
said disablement. Therefore, he has lost 100%
of his earning capacity as a lorry driver, more so, when he is
disqualified from even getting a driving licence under the
Motor Vehicles Act, 1988.”
(emphasis supplied)
23. Having considered the aforesaid facts of the present case
and the dictum of the judicial pronouncements referred to above and the
2 (2008) 8 SCC 518
3 (2010) 13 SCC 777
CHANDRAMMA  v. MANAGER, REGIONAL OFFICE, NCC
LIMITED AND ANR. [KRISHNA MURARI, J.]
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SUPREME COURT REPORTS
[2022] 17 S.C.R.
position of the appellant after the accident, incapacitated her from carrying
out her vocation as a labourer, we are of the opinion that the impugned
order passed by the High Court is not liable to be sustained. The functional
disability of the appellant is liable to be assessed as 100% and, accordingly,
the compensation is to be determined. The functional disability of the
appellant being 100%, her age being 40 years and income being Rs.8000/
-, 60% whereof works out to be Rs.4800/- and applying the multiplier of
184.17, as per Schedule IV of the 1993 Act, the compensation works
out to be Rs.8,84,016/-. Adding an amount of Rs.42,200/- towards medical
expenses for which the bills were presented, the total compensation
works out to be Rs.9,26,216/- rounded of to Rs. 9,30,000/-. The appellant
shall also be entitled for payment of interest @ 9% per annum, from the
date of making the application till the date of actual payment.
24. The respondent Insurance Company is directed to pay the
enhanced amount of compensation to the appellant along with 9% interest,
calculated from the date of making of the application till the date of
payment within six weeks from today.
25. The Civil Appeal stands allowed in the aforesaid terms. All
the pending applications, if any, are accordingly disposed of. Ordered
accordingly.
Divya Pandey
Appeal allowed.
(Assisted by : Roopanshi Virang, LCRA)