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Judgment
L. Narayana Swamy, J.—This appeal by the Insurance Company challenging the quantum. The ground urged by the learned counsel for the appellant is that the Workmen''s Compensation Commissioner has committed an error in assessing the loss of earning capacity at 90% against the evidence of the doctor at 60%. Treated doctor was not examined. The evidence and materials, which shows the earning capacity of the injured exorbitantly at 90%. Learned counsel for the Insurance Company prays for modifying the order of the Workmen''s Compensation Commissioner.
Learned counsel for the respondent-claimant stated that as per the evidence of the doctor and the materials on record, it discloses that the injured has suffered fracture of midshaft of the right femur bone with displacement and fracture of both bones of right and fibula at the junction of lower 1/3rd and middle 1/3rd of the right leg and all over the body. Further, the doctor stated that he treated the patient between 26.08.2006 to 31.10.2006. He further submits that injured was in occupation as driver, by virtue of the accident, he has surrendered his licence to the RTO. Under these circumstances, loss of earning capacity should have taken at 100%.
The substantial questions that arise for consideration are:
i. Whether the Workmen''s Compensation Commissioner committed an error in assessing the loss of earning capacity at 90% against 60% as per the evidence of doctor?
ii. Whether the Workmen''s Compensation Commissioner committed an error in considering the evidence of the doctor, who was not treated the injured?
On the last occasion, on 10.12.2013, the injured appeared before the Court as per the direction of this Court. I have seen when he entered into the Court hall with a stiffed leg, from which I find that he cannot do the actual occupation as driver. Under these circumstances, the evidence of the doctor who assessed the loss of disability at 60%. The evidence of the doctor is supported by the medical report u/s 4(I)(c)(I) of Workmen''s Compensation Act, 1923. Learned counsel relied upon the judgment in the Case of S. Suresh Vs. Oriental Insurance Co. Ltd. and Another, reads thus:
(5) THE expression ''total disablement'' has been defined in section 2(1)(1) 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 nature as to cause permanent disablement to the respondent, and the question for consideration is that whether the disablement incapacitated the respondent for all work which he was capable of performing at the time of 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 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.
In our view, the ratio of the said judgment is squarely applicable to the facts at hand. 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 percent of his earning capacity as a lorry driver, more so, when he is disqualified from even getting the driving licence under the Motor Vehicles Act.
In view of the judgment of the Hon''ble supreme Court referred above, loss of disability assessed by the doctor, and the Workmen''s Compensation Commissioner assessed the disability of the injured at 90%, while considering the loss of disability what is to be looked into is whether it denies the person''s future earning capacity and in what extent it denies the percentage of disability depending upon occupation. If a damage is 100% disability or earning capacity as amputation is 100%, loss of disability of the driver is accepted on the basis of the facts and circumstances of the case and on seeing the person before this Court as per the direction, I find that he is not in a position to do his occupation as a driver. Under these circumstances, the Workmen''s Compensation Commissioner has not committed any error. Accordingly, compensation awarded by the Workmen''s Compensation Commissioner is sound and proper and it does not call for interference. Substantial questions are answered accordingly. Hence, the appeal stands dismissed.
Amount in deposit is ordered to be transmitted to the Workmen''s Compensation Commissioner.
AKJ:
MFA No. 22751/2009
ORDER ON I.A. No. 2/2014
Claimant that is respondent No. 1 is seeking for modification of the order dated 12.12.2013 whereunder, appeal filed by the insurer has been dismissed and amount in deposit has been ordered to be transmitted to the Workmen''s Compensation Commissioner, contending that the first respondent be permitted to withdraw the amount before this Court itself instead of transmitting the amount to Commissioner for Workmen''s Compensation.
Learned counsel appearing for insurer has no objection for granting the said prayer. His submission is placed on record. I.A. No. 2/2014 is hereby allowed. The last para of the order dated 12.12.2013 is hereby modified. Substitution of the same is made as under:
The amount in deposit is ordered to be paid to first respondent by the registry by issuance of cheque on proper identification.
Accordingly, I.A. No. 2/2014 stands allowed.