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Judgment
R. Mahadevan, J.—Against the order passed in W.C. No. 280 of 2009 by the Deputy Commissioner of Labour-II (Commissioner for
Workmen''s Compensation-II), Chennai-600006, this Civil Miscellaneous Appeal is filed. A claim of Rs. 6,00,000/- under the Workmen
Compensation Act was made and the Deputy Commissioner of Labour-II awarded a compensation of Rs. 3,18,773/-. Aggrieved by the same,
the present appeal has been preferred.
The two substantial question of laws raised before this Hon''ble Court are
Whether the Deputy Commissioner of Labour-II ought to have fixed the loss of earning capacity at 100% ?
Whether the appellant is entitled to interest at the rate of 12% p.a. from the date of accident under Sec 4A(3) of the W.C. Act?
The appellant a driver by profession was the claimant before the Deputy Commissioner of Labour-II. While driving the Lorry (MIX Concrete)
with Registration No TN-20-AR-0515 owned by the first respondent, on the night of 21.01.2009, he met with an accident and as a result,
sustained serious injuries. He claimed compensation for having lost 100% earning capacity in view of the nature of injury and disability, along with
interest at the rate of 12% p.a. from the date of accident. The first respondent, the employer did not appear before the Deputy Commissioner of
Labour-II. The second respondent contested the claim disputing that the accident did not occur in the course of employment, that the First
Information Report is fabricated and the appellant caused the accident due to the negligence.
The appellant examined himself as P.W. 1. The Doctor as P.W. 2 and twelve Exhibits including the Disability Certificate were marked. No
documentary as well as oral evidence was let in on behalf of the respondents. After considering the facts, the documentary and oral evidence and
the Disability Certificate issued by the Doctor at 60%, the Deputy Commissioner of Labour-II fixed the monthly income at Rs. 4,000/- and
awarded a sum of Rs. 3,18,773/-. Aggrieved with, the claimant has preferred this appeal.
The learned counsel for the appellant scrupulously argued that the Doctor has assessed the disability by 60%, but the loss in earning capacity in
reality is 100%. The learned counsel further agitated that the Deputy Commissioner of Labour-II failed to consider the nature of injury, by which,
the appellant can no longer drive and that he cannot attend any other work like an ordinary man. Because of the incapacity, he cannot secure
renewal of driving licence and therefore his loss in earning capacity is 100%, Further, he contended that interest @ 12% p.a. from the date of
accident ought to have been awarded and that the directions to pay interest only upon failure to pay the award amount within 30 days is
unsustainable and contrary to Section 4A(3) of the Workmen''s Compensation Act. Reliance was placed upon the judgments in Pratap Narain
Singh Deo Vs. Srinivas Sabata and Another, , D. Shanmuga Anand Vs. M. Balasubramanian and Bajaj Allienze General Insurance Co. Limited,
and 2013 ACJ 2468 to illustrate that disability is different from earning capacity and all that matters is whether he can perform the same work after
the accident which he was doing prior to accident. The learned counsel for the appellant also relied upon the Division Bench Judgment of this
Court reported in 2010 (2) TNMAC 80 [N. Ganesan vs. Thilagavathi] to claim interest from the date of accident.
Per contra, the learned counsel for the second respondent contended that in the facts and circumstances of the case, the compensation awarded
is just. By relying upon the statement of the Doctor during cross-examination that ""the claimant can walk by wearing ordinary Chappal"". The
learned counsel contended that the disability is only 60%, the appellant, even if he is incapable of driving can go for some other job and hence
prayed for dismissal of the appeal.
Heard the learned counsels for the Appellant and the second respondent. Despite service of notice, the first respondent has not appeared.
Upon perusal of the award, this Court finds that the Deputy Commissioner of Labour-II has not even discussed about applicability of ""Total
disablement"". The point for consideration is the difference between disability in medical prudence and disability in the light of loss in earning
capacity. The very purpose for the enactment of Workmen''s Compensation Act was to pave way of compensation to the workmen for injury by
accident.
The factum of accident and the fixation of monthly salary are not disputed by Appellant as well as the second respondent. As per the Disability
Certificate issued by the Doctor, who was examined as P.W. 2, the Injury occurred to the appellant is ""crush injury right limb grade iii b,
compound comminuted fracture tibia proximal 3rd with bimalleolar fracture right side and other multiple injuries all over the body"". The Disability
was declared to be a permanent but partial at 60%. In Serial Number 7 in the Certificate, the disability was declared as partial and in Serial
Number 8, the disability was declared as permanent. Therefore, it can be understood that the disability is incurable and the appellant has to live
with the disability throughout his life.
Section 2(1)(1) of the Workmen''s Compensation Act (Now called as the Employees'' Compensation Act, 1923) defines "" Total Disablement
as follows:
Such disablement, whether of a temporary or permanent nature, as incapacitates a employee for all work which he was capable of performing at
the time of the accident resulting in such disablement.
But in cases for compensation, it is not the disability which is partial or total alone that matters, it is the loss in earning capacity as a result of
accident that is to be considered.
As per section 4(3) of the Motor Vehicle Act, 1988:
No learner''s licence or driving licence shall be issued to any person to drive a vehicle of the class to which he has made an application unless he is
eligible to drive that class of vehicle under this section.
After the accident, the licence of the appellant to drive the Transport Vehicle had expired. A reading of Section 15 together with Section 8(3)
and (4) of the Motor Vehicles Act makes it clear that unless a Medical Certificate to the effect that the appellant is fit to drive is produced, the
driving licence would not be renewed. Needless to say that no Doctor would declare the appellant as fit to drive either a transport or non-transport
vehicle. The power to cancel the licence already issued is also available to the Regional Transport Officer u/s 16 if he has reasonable grounds to
believe that the holder of the driving licence is, by virtue of any disease or disability, unfit to drive a motor vehicle. Considering that the injury is on
the hip, right leg and ankle, the appellant can no longer drive a vehicle as he cannot exercise absolute control over it.
In the Judgment reported in Pratap Narain Singh Deo Vs. Srinivas Sabata and Another, relied upon by the appellant, the Hon''ble Apex Court
while dealing with the question of whether the injury resulted in total disablement, leaning on to Section 2(1)(1) of the Workmen''s Compensation
Act held as follows:
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 I, because it was not the appellant''s case before the Commissioner that amputation of the arm was from 8"" from tip of acromion to less
than 41/2"" 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.
In the Judgments reported in D. Shanmuga Anand Vs. M. Balasubramanian and Bajaj Allienze General Insurance Co. Limited, and 2013 ACJ
2468 , following the earlier decisions of the Hon''ble Apex Court, appreciating the provisions of Workmen''s Compensation Act, 1923 and the fact
that the injured therein was a driver, held the disability to be total resulting in loss of 100% earning capacity. The case on hand is squarely covered
by the above decisions.
Even though it is contested by the second respondent that the Doctor during cross-examination has stated that the appellant can walk with
ordinary chappals, it is not in dispute that the appellant can no longer work as a driver. Being a driver, he would not be accustomed to any other
work and what is to be looked into is only whether he can work as the driver after the accident. As the injury is to the right leg, he cannot
effectively apply the break and accelerator. In the first place, he would not even be able to sit and operate the vehicle comfortably. The appellant is
27 years old today. The accident has already taken away 4 years of quality life in him. It has also deprived him the normal life expected out of a
man of his age. Leave alone the driving of the vehicle, he cannot move as swiftly as he was moving prior to the accident. Even if he applies for
some other job, there would always be a doubt not only in his mind but also in the mind of such employer as to whether he can perform his duties
efficiently. The very doubt would itself create depression in the mind of the appellant and not permit him to do any work efficiently. Therefore, the
contention of the second respondent that he can do some other work cannot be accepted. In view of the above decisions, the definition of total
disablement under the Workmen''s Compensation Act and the restrictions under the Motor Vehicles Act for grant of licence, I hold that the
disability as total for the purpose of calculating the loss in earning capacity of the appellant.
The next issue on hand is whether the appellant is entitled to interest at 12% p.a. from the date of accident.
Section 4A of the Workmen''s Compensation Act deals with compensation to be paid when due and penalty for default. Section 4A(3) reads
as follows:
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 shall
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(a) direct that the employer shall, in addition to the amount of the arrears, pay simple interest thereon at the rate of twelve per cent, per annum or at
such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified by the Central Government, by
notification in the Official Gazette, on the amount due;
The Division Bench of this Court in the Judgment reported in 2010 (2) TNMAC 80 [N. Ganesan vs. Thilagavathi] following the decision of the
Hon''ble Apex Court reported in Pratap Narain Singh Deo Vs. Srinivas Sabata and Another, and Kerala State Electricity Board and Another Vs.
Valsala K and Another, , held that the word ""falls due"" occurring u/s 4A of the Workmen''s Compensation Act means that interest for
compensation amount would accrue 30 days after the date of accident and not from the date of quantification/orders passed by the commissioner
for Workmen''s Compensation. Therefore, the direction of Deputy Commissioner of Labour-II to pay interest only if the amount is not deposited
within 30 days from the date of order is unsustainable. So is the argument of the learned counsel for the appellant that the appellant is entitled to
interest from the date of accident. The appellant is entitled to interest from the 31st day of the accident i.e. from 21.02.2009. In the result, the Civil
Miscellaneous Appeal is allowed. The order of the Deputy Commissioner of Labour-II is modified to the effect that the disability has resulted in
100% loss in earning capacity and hence the compensation of Rs. 5,31,288/- is to be paid to the appellant along with interest @ 12% p.a. from
21.02.2009 after deducting the amount already paid. The second respondent is direct the pay the arrears with interest within a period of four
weeks from the date of receipt of a copy of judgment. No costs. Consequently, connected miscellaneous petition is closed.