a driver of heavy vehicles - lost his leg - 100% disability - The Appellant suffered from serious injuries in his right leg by an Anterior Cruciate Ligament and a Collateral Ligament Tear.
Plastic surgery was performed on his right leg. This led to his right leg getting permanently injured, which resulted in complete disability to continue his vocation as a driver of a heavy motor vehicle.
We affirm the judgment of the High Court on assessing the income of the Appellant at Rs. 4,000/- p.m. as per the evidence of his employer.
The “functional disability” of the Appellant is assessed as 100%, and the relevant factor would be 201.66 as per Schedule IV to the Act. Consequently, the compensation payable to the Appellant would work out to Rs. 4,83,984/- under Section 4 of the Act.
We find that the Appellant has not been awarded any amount towards reimbursement of the medical expenses incurred by him, either by the Commissioner, or by the High Court. The
Appellant underwent hospitalization for a period of 65 days’ for medical treatment and surgical operations.
We deem it just and appropriate to award a lump sum amount of Rs. 1,00,000/- towards hospitalization and medical expenses incurred by the Appellant.
The Respondent – Insurance Company is directed to pay the enhanced amount of compensation to the Appellant along- with Interest @6% p.a. to be calculated one month from the date of the accident till the date of payment within 4 weeks.
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9306 OF 2019
(Arising out of SLP (Civil) No. 31909 of 2017)
Sri Chanappa Nagappa Muchalagoda …Appellant
versus
Divisional Manager, New India Insurance
Company Limited …Respondent
J U D G M E N T
INDU MALHOTRA, J.
Leave granted.
1. The present Civil Appeal has been filed by the Appellant –
Claimant for enhancement of the compensation awarded to
him by the Karnataka High Court (Dharwad Bench) under the
Workmen’s Compensation Act, 1923.
2
2. The Appellant – a driver of heavy vehicles, was employed by
one Sekar Santharam. On 13.05.2006, while he was driving a
truck bearing No. MH-08H-0390 loaded with sand from
Islampura towards Ratnagiri, he lost control of the truck due
to an axle cut, and dashed against a rock on the side of the
road.
As a consequence, the truck turtled thrice, and the
Appellant suffered grievous injuries all over his body. The
truck was insured with the Respondent – Insurance Company.
3. The Appellant suffered from serious injuries in his right leg by
an Anterior Cruciate Ligament and a Collateral Ligament Tear.
Plastic surgery was performed on his right leg. This led to his
right leg getting permanently injured, which resulted in
complete disability to continue his vocation as a driver of a
heavy motor vehicle.
The Appellant underwent hospitalization for a total
period of 65 days, first in Government Hospital, Ratnagiri
between 13.05.2006 and 01.06.2006 and thereafter, in KIMS
Hospital, Hubli between 17.06.2006 and 26.08.2006.
3
4. The Appellant filed a Claim under the Workmen’s
Compensation Act, 1923 (“the Act”) before the Labour Officer
and Commissioner for Workmen’s Compensation, SubDivision 2 – Belgaum (“Commissioner”) against the Truck
Owner and the Insurance Company, praying that an amount
of Rs. 5,00,000/- be awarded to him as compensation.
5. The Truck Owner filed his Written Statement, wherein he
admitted the factum of the accident and the injuries suffered
by the Appellant. He submitted that he was paying Rs. 4,000/-
p.m. and Rs. 30 batta per day to the Appellant.
6. Dr. S.D. Patil – a Knee Specialist from Belagavi who had
examined the Appellant, deposed that the Appellant can
neither stand for a long period of time, nor can he fold his legs.
He was required to use a walking stick, and could not lift heavy
objects. Dr. Patil opined that the Appellant suffered 37%
disability in his whole body, and could not perform the work
of a truck driver any longer.
4
7. The Commissioner assessed the Appellant’s income at Rs.
3,000/- p.m., and held that he had lost 50% of his earning
capacity. Since the Appellant was 33 years old at the time of
the accident, 201.66 was taken as the relevant factor as per
Schedule IV to the Act. Accordingly, the compensation was
computed at Rs. 1,81,494/-. The Respondent – Insurance
Company was held liable to pay the amount awarded.
8. The Appellant filed MFA No. 1569/2008 before the Karnataka
High Court (Dharwad Bench) for enhancement of the
compensation awarded by the Commissioner.
The High Court accepted the income of the Appellant at
Rs. 4,000/- p.m. as per the statement made by the employer.
Insofar as the functional disability of the Appellant was
concerned, the Court held the assessment by the
Commissioner at 50% was on the lower side, and increased it
to 60%, since the Appellant could no longer earn his livelihood
as a driver, and could not even stand for a long time.
5
The compensation was accordingly enhanced to Rs.
2,90,390/- with Interest @12% p.a. payable from one month
after the date of the accident.
9. Aggrieved, the Appellant has filed the present Civil Appeal
before this Court for enhancement of the compensation
awarded by the High Court.
We have heard the learned Counsel appearing for the
parties, and perused the pleadings on record.
It is the admitted position that the Appellant can no
longer pursue his vocation as a driver of heavy vehicles. The
medical evidence on record has corroborated his inability to
stand for a long period of time, or even fold his legs. As a
consequence, the Appellant has got permanently incapacitated
to pursue his vocation as a driver.
This Court in Raj Kumar v. Ajay Kumar and Ors.,
1 held
that:
“10. 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
1 (2011) 1 SCC 343.
6
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.
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. It may be
7
noted that when compensation is awarded by
treating the loss of future earning capacity as
100% (or even 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)
10. In K. Janardhan v. United India Insurance Co. Ltd.,
2 this Court
examined the loss of earning capacity in the case of a tanker
driver who had met with an accident, and lost one of his legs
due to amputation. The Commissioner for Workmen’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 I 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 longer earn his living as a tanker
driver due to loss of one leg, the functional disability had to be
assessed as 100%.
2 (2008) 8 SCC 518.
8
In S. Suresh v. Oriental Insurance Co. Ltd. & Anr.,
3 this
Court held that :
“8. … 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 license under the Motor Vehicles
Act.”
(emphasis supplied)
The aforesaid judgments are instructive for assessing the
compensation payable to the Appellant in the present case. As
a consequence of the accident, the Appellant has been
incapacitated for life, since he can walk only with the help of a
walking stick. He has lost the ability to work as a driver, as he
would be disqualified from even getting a driving license. The
prospect of securing any other manual labour job is not
possible, since he would require the assistance of a person to
ensure his mobility and manage his discomfort. As a
consequence, the functional disability suffered by the
Appellant must be assessed as 100%.
3 (2010) 13 SCC 777.
9
11. We affirm the judgment of the High Court on assessing the
income of the Appellant at Rs. 4,000/- p.m. as per the evidence
of his employer. The “functional disability” of the Appellant is
assessed as 100%, and the relevant factor would be 201.66 as
per Schedule IV to the Act. Consequently, the compensation
payable to the Appellant would work out to Rs. 4,83,984/-
under Section 4 of the Act.
12. We find that the Appellant has not been awarded any amount
towards reimbursement of the medical expenses incurred by
him, either by the Commissioner, or by the High Court. The
Appellant underwent hospitalization for a period of 65 days’
for medical treatment and surgical operations.
We deem it just and appropriate to award a lump sum
amount of Rs. 1,00,000/- towards hospitalization and medical
expenses incurred by the Appellant.
13. The Respondent – Insurance Company is directed to pay the
enhanced amount of compensation to the Appellant along-
10
with Interest @6% p.a. to be calculated one month from the
date of the accident till the date of payment within 4 weeks.
The Civil Appeal stands allowed in the aforesaid terms. All
pending Applications, if any, are accordingly disposed of.
Ordered accordingly.
.....................................J.
(UDAY UMESH LALIT)
.…...............………………J.
(INDU MALHOTRA)
New Delhi,
December 10, 2019
Plastic surgery was performed on his right leg. This led to his right leg getting permanently injured, which resulted in complete disability to continue his vocation as a driver of a heavy motor vehicle.
We affirm the judgment of the High Court on assessing the income of the Appellant at Rs. 4,000/- p.m. as per the evidence of his employer.
The “functional disability” of the Appellant is assessed as 100%, and the relevant factor would be 201.66 as per Schedule IV to the Act. Consequently, the compensation payable to the Appellant would work out to Rs. 4,83,984/- under Section 4 of the Act.
We find that the Appellant has not been awarded any amount towards reimbursement of the medical expenses incurred by him, either by the Commissioner, or by the High Court. The
Appellant underwent hospitalization for a period of 65 days’ for medical treatment and surgical operations.
We deem it just and appropriate to award a lump sum amount of Rs. 1,00,000/- towards hospitalization and medical expenses incurred by the Appellant.
The Respondent – Insurance Company is directed to pay the enhanced amount of compensation to the Appellant along- with Interest @6% p.a. to be calculated one month from the date of the accident till the date of payment within 4 weeks.
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9306 OF 2019
(Arising out of SLP (Civil) No. 31909 of 2017)
Sri Chanappa Nagappa Muchalagoda …Appellant
versus
Divisional Manager, New India Insurance
Company Limited …Respondent
J U D G M E N T
INDU MALHOTRA, J.
Leave granted.
1. The present Civil Appeal has been filed by the Appellant –
Claimant for enhancement of the compensation awarded to
him by the Karnataka High Court (Dharwad Bench) under the
Workmen’s Compensation Act, 1923.
2
2. The Appellant – a driver of heavy vehicles, was employed by
one Sekar Santharam. On 13.05.2006, while he was driving a
truck bearing No. MH-08H-0390 loaded with sand from
Islampura towards Ratnagiri, he lost control of the truck due
to an axle cut, and dashed against a rock on the side of the
road.
As a consequence, the truck turtled thrice, and the
Appellant suffered grievous injuries all over his body. The
truck was insured with the Respondent – Insurance Company.
3. The Appellant suffered from serious injuries in his right leg by
an Anterior Cruciate Ligament and a Collateral Ligament Tear.
Plastic surgery was performed on his right leg. This led to his
right leg getting permanently injured, which resulted in
complete disability to continue his vocation as a driver of a
heavy motor vehicle.
The Appellant underwent hospitalization for a total
period of 65 days, first in Government Hospital, Ratnagiri
between 13.05.2006 and 01.06.2006 and thereafter, in KIMS
Hospital, Hubli between 17.06.2006 and 26.08.2006.
3
4. The Appellant filed a Claim under the Workmen’s
Compensation Act, 1923 (“the Act”) before the Labour Officer
and Commissioner for Workmen’s Compensation, SubDivision 2 – Belgaum (“Commissioner”) against the Truck
Owner and the Insurance Company, praying that an amount
of Rs. 5,00,000/- be awarded to him as compensation.
5. The Truck Owner filed his Written Statement, wherein he
admitted the factum of the accident and the injuries suffered
by the Appellant. He submitted that he was paying Rs. 4,000/-
p.m. and Rs. 30 batta per day to the Appellant.
6. Dr. S.D. Patil – a Knee Specialist from Belagavi who had
examined the Appellant, deposed that the Appellant can
neither stand for a long period of time, nor can he fold his legs.
He was required to use a walking stick, and could not lift heavy
objects. Dr. Patil opined that the Appellant suffered 37%
disability in his whole body, and could not perform the work
of a truck driver any longer.
4
7. The Commissioner assessed the Appellant’s income at Rs.
3,000/- p.m., and held that he had lost 50% of his earning
capacity. Since the Appellant was 33 years old at the time of
the accident, 201.66 was taken as the relevant factor as per
Schedule IV to the Act. Accordingly, the compensation was
computed at Rs. 1,81,494/-. The Respondent – Insurance
Company was held liable to pay the amount awarded.
8. The Appellant filed MFA No. 1569/2008 before the Karnataka
High Court (Dharwad Bench) for enhancement of the
compensation awarded by the Commissioner.
The High Court accepted the income of the Appellant at
Rs. 4,000/- p.m. as per the statement made by the employer.
Insofar as the functional disability of the Appellant was
concerned, the Court held the assessment by the
Commissioner at 50% was on the lower side, and increased it
to 60%, since the Appellant could no longer earn his livelihood
as a driver, and could not even stand for a long time.
5
The compensation was accordingly enhanced to Rs.
2,90,390/- with Interest @12% p.a. payable from one month
after the date of the accident.
9. Aggrieved, the Appellant has filed the present Civil Appeal
before this Court for enhancement of the compensation
awarded by the High Court.
We have heard the learned Counsel appearing for the
parties, and perused the pleadings on record.
It is the admitted position that the Appellant can no
longer pursue his vocation as a driver of heavy vehicles. The
medical evidence on record has corroborated his inability to
stand for a long period of time, or even fold his legs. As a
consequence, the Appellant has got permanently incapacitated
to pursue his vocation as a driver.
This Court in Raj Kumar v. Ajay Kumar and Ors.,
1 held
that:
“10. 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
1 (2011) 1 SCC 343.
6
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.
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. It may be
7
noted that when compensation is awarded by
treating the loss of future earning capacity as
100% (or even 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)
10. In K. Janardhan v. United India Insurance Co. Ltd.,
2 this Court
examined the loss of earning capacity in the case of a tanker
driver who had met with an accident, and lost one of his legs
due to amputation. The Commissioner for Workmen’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 I 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 longer earn his living as a tanker
driver due to loss of one leg, the functional disability had to be
assessed as 100%.
2 (2008) 8 SCC 518.
8
In S. Suresh v. Oriental Insurance Co. Ltd. & Anr.,
3 this
Court held that :
“8. … 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 license under the Motor Vehicles
Act.”
(emphasis supplied)
The aforesaid judgments are instructive for assessing the
compensation payable to the Appellant in the present case. As
a consequence of the accident, the Appellant has been
incapacitated for life, since he can walk only with the help of a
walking stick. He has lost the ability to work as a driver, as he
would be disqualified from even getting a driving license. The
prospect of securing any other manual labour job is not
possible, since he would require the assistance of a person to
ensure his mobility and manage his discomfort. As a
consequence, the functional disability suffered by the
Appellant must be assessed as 100%.
3 (2010) 13 SCC 777.
9
11. We affirm the judgment of the High Court on assessing the
income of the Appellant at Rs. 4,000/- p.m. as per the evidence
of his employer. The “functional disability” of the Appellant is
assessed as 100%, and the relevant factor would be 201.66 as
per Schedule IV to the Act. Consequently, the compensation
payable to the Appellant would work out to Rs. 4,83,984/-
under Section 4 of the Act.
12. We find that the Appellant has not been awarded any amount
towards reimbursement of the medical expenses incurred by
him, either by the Commissioner, or by the High Court. The
Appellant underwent hospitalization for a period of 65 days’
for medical treatment and surgical operations.
We deem it just and appropriate to award a lump sum
amount of Rs. 1,00,000/- towards hospitalization and medical
expenses incurred by the Appellant.
13. The Respondent – Insurance Company is directed to pay the
enhanced amount of compensation to the Appellant along-
10
with Interest @6% p.a. to be calculated one month from the
date of the accident till the date of payment within 4 weeks.
The Civil Appeal stands allowed in the aforesaid terms. All
pending Applications, if any, are accordingly disposed of.
Ordered accordingly.
.....................................J.
(UDAY UMESH LALIT)
.…...............………………J.
(INDU MALHOTRA)
New Delhi,
December 10, 2019
