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Judgment
This appeal for enhancement of compensation is directed
against the judgment dated 28.2.2001 passed by the
Commissioner, Workmen Compensation Act, Rajasmand (''the
Commissioner''), whereby the appellant has been awarded
compensation to the tune of Rs.52,948/- alongwith interest @
12% per annum from the date of accident.
The appellant filed application for compensation with the
averments that he was engaged on the truck by respondent- Ram
Singh as driver and was receiving salary @ Rs.2,500/- per month.
The truck was plied by him from Kelwa to Kesariyaji for
transporting Marbel Blocks and when he was returning back, the
vehicle met with an accident resulting in the truck turning turtle
on account of which, the appellant received grievous injuries and
ultimately his right feet from below the knee was amputed. Based
on the said averments, compensation to the tune of
Rs.10,50,000/- was claimed.
The application was opposed by respondent No.2 -
Insurance Company. The owner of the truck also filed his reply
and submitted that liability, if any, is of the Insurance Company.
After hearing the parties, the Commissioner came to the
conclusion that the accident occurred on 26.8.1994, the appellant
was driving the truck, the accident occurred during the course of
employment, the vehicle was insured with respondent No.2-
Insurance Company and, therefore, both insurer and the owner
were liable jointly and severally.
The Commissioner assessed the disability of appellant at
50% and taking his income at Rs.2,000/- and based on the
provisions of Explanation-2 to Section 4(1)(b) of the Workmen''s
Compensation Act, 1923 (''the Act'') took the income at Rs.1,000/-
and assessed the compensation at Rs.52,948/-.
It is submitted by learned counsel for the appellant that
though the accident occurred on 26.8.1994, the application for
compensation was filed on 7.12.1995 and in the meanwhile the
provisions of Explanation-2 to Section 4(1)(b) of the Act stood
amended and the limit was extended to Rs.2,000/- and, therefore,
the Commissioner was not justified in taking the maximum income
at Rs.1,000/-. It was further submitted that the appellant was
working as a driver and once his leg below the knee was amputed,
in fact he was rendered 100% disabled and the Commissioner was
not justified in taking the disability at 50% based on the Schedule-
I of the Act.
Reliance was placed on judgment of Hon''ble Supreme Court
in the case of S. Suresh v. Oriental Insurance Co. Ltd .:2010(13)
SCC 777.
Further submissions were made that even the calculation
made by the Commissioner is ex-facie faulty, inasmuch as, even
after taking the income at Rs.1,000/- and applying the factor as
per Schedule-IV i.e. 211.79, the appellant was entitled to a sum of
Rs.1,05,895/- and, therefore, the judgment impugned deserves to
be modified.
Learned counsel appearing for the respondent-Insurance
Company supported the judgment passed by the Commissioner. It
was submitted that insofar as the retrospective operation of the
amendment in the Explanation-2 to Section 4(1)(b) is concerned,
the issue is no more res integra, inasmuch as, the Hon''ble
Supreme Court in the case of Kerala State Electricity Board & Anr.
v. Valsala K. & Anr . etc.: AIR 1999 SC 3502 has laid down that the
amendments made by the Amendment Act, 1995 were not
retrospective and the relevant date for applicability of provisions is
the date of accident.
Further submissions were made that once the application has
been filed by the appellant under the provisions of the Act and the
Schedule attached to the Act provides for a specific percentage of
disability qua a particular injury, the same has to be taken into
consideration for awarding compensation and, therefore, the
judgment impugned does not call for any interference.
I have considered the submissions made by learned counsel
for the parties and have perused the material available on record.
So far as the question of seeking compensation based on
amended provisions of Explanation-2 to Section 4(1)(b) is
concerned, the amendment came into force on 15.9.1995 and the
accident had taken place on 26.8.1994. The application, of course,
was filed after the amendment came into force i.e. on 7.12.1995,
as rightly submitted by learned counsel for the respondent, the
issue is no more res integra as Hon''ble Supreme Court in Kerala
State Electricity Board (supra) has laid down in view of its earlier
judgment in Pratap Singh Narain Singh Deo v. Srinivas Sabata :
1976 (1) SCC 289 that the relevant date for determination of rate
of compensation is the date of accident and not the date of
adjudication of the claim.
In view thereof, merely because the application was filed by
the appellant after the amendment came into force on 15.9.1995,
it cannot be contended that he would be governed by the
amended provisions.
So far as the quantum of compensation and award to the
appellant as per Schedule-I of the Act is concerned, the Schedule-
I provides under Entry-22 of Part-II that amputation of one feet
resulting in end-bearing, the percentage of loss of earning
capacity would be 50%, however, Hon''ble Supreme Court in the
case of S. Suresh (supra) in a similar nature case where the right
leg of the appellant therein was amputed below the knee, came to
the conclusion that since the appellant was rendered unfit for work
of a driver which he was performing at the time of accident, he
had lost 100% of his earning capacity and, therefore, he was
entitled to compensation at 100%.
The said judgment in the case of S. Suresh (supra) would
apply on all force to the facts of the present case and in view
thereof, the appellant would be entitled to claim 100% loss of
earning capacity.
There is also substance in the submissions of learned counsel
for the appellant that Commissioner has mis-calculated the
amount of compensation even as per the determination made by
him, inasmuch as, after applying the factor of 211.79 and taking
the income at Rs.500/-, the appellant was entitled to
compensation to the tune of Rs.1,05,895/-, however, he was
awarded Rs.52,948/- only.
In view of the above discussion, the appellant would now be
entitled to a sum of Rs.1,000/- x 211.79 = Rs.2,11,790/-,
however, on the enhanced amount of compensation i.e.
Rs.1,58,842/-, the appellant would be entitled to interest @ 9%
per annum from the date of accident.
The Insurance Company is directed to make payment of the
enhanced amount of compensation alongwith interest within a
period of eight weeks from the date of this judgment.
With the above modification, the appeal is partly allowed.