United India Insurance Co. Ltd vs Laneesh @ Laneesh Bhaskaran

C. Pratheep Kumar, J

This appeal has been preferred under Section 30 of the Employees Compensation Act 1923, by the applicant in ECC No.82 of 2014 (Old No.WC.38/13) on the file of the Employees Compensation Commissioner, Kozhikode, against the order dated 25.9.2015.

The appellant was the driver of an autorickshaw, KL 60-C/362, belonging to the 1st respondent. On 20.11.2012, at about 11 am, while the appellant was driving the above autorickshaw from Cheemeni to Kayyur and when it reached near Pallot, a dog ran across the road and on seeing the same, the appellant tried to control the vehicle. But he lost his control over the vehicle and the vehicle capsized and he sustained very serious injuries. Immediately he was taken to Thejaswini Hospital, Neeleswaram and treated there as inpatient from 20.11.2012 to 30.11.2012. The 2nd respondent is the insurer of the Autorickshaw. He filed an application claiming a compensation of Rs.5,00,000/-. As per the impugned order, the employees Compensation Commissioner granted a compensation of Rs.7,64,695/- along with interest @ 12% per annum and medical expenses of Rs.19,526/-. Aggrieved by the above order, the 2nd respondent/insurance company preferred this appeal raising various contentions.

The contention of the appellant is that 79% disability fixed by the Medical Board is too excessive when compared to the injury sustained by the appellant. Therefore, he would argue that the compensation awarded is also excessive. According to him, even in the case of amputation, the permanent disability will not exceed 50% and as such 79% fixed in the present case without even any amputation, is highly excessive.

On the other hand, the learned counsel for the 1st respondent would argue that the finding of fact by the Employees Compensation Commissioner cannot be agitated in an appeal filed under Section 30 of Act 8 of 1923. In the accident, the appellant sustained Fracture Neck of Femur left in addition to abrasion both foot and left knee.

In Exhibit X1 disability certificate issued by the Medical Board, it is stated as follows:

“We the Chairman and members of District Medical Board have carefully examined Laneesh Bhaskaran Theerakunnummal, Cheriyakkara, Kayyur, Kasaragode who alleged to have been involved in RTA and and sustained fracture neck of femur Left abrasion both feet, Abrasion Left knee and under gone treatment.

Now he has got limitation of range of movements of Left hip, Left knee, affected the stability of lower Limb moderately painful Left hip and 1 inch shortening Left lower Limb (thigh segment ).

The locomotor permanent disablity is 79 % (Seventy nine percent ) in relation to his Left Lower Limb.”

As argued by the learned counsel for the appellant, the occupational disability of the appellant is not specifically mentioned in the certificate. However, it is specifically stated in Exhibit X1 that the appellant has locomotor permanent disability of 79%. He has got limitation in the movements of left hip and left knee, stability of lower limb is moderately affected with pain left hip and 1 inch shortening of left lower limb. In this context, it is to be noted that the appellant was working as an autorickshaw driver. Since he has 79% locomotor permanent disability, definitely, there will be considerable percentage of occupational disability also.

Now the question to be considered is whether the Commissioner was justified in awarding compensation without calling for a disability certificate containing the percentage of occupational disability. Further, in spite of the fact that the compensation claimed is Rs.5,00,000/-, the commissioner awarded Rs.7,64,695/- on the basis of the disability certificate produced. In the above circumstance, at the time of arguments, the learned counsel for the respondent has fairly agreed to limit the claim to Rs.5,00,000/-, the amount claimed in the petition.

As argued by the learned counsel for the appellant, in the case of amputation of leg, the percentage of disability as per the schedule is only 50%. Even if the compensation due is assessed taking disability @ 50%, the compensation will come to Rs.4,83,984/- which is very close to Rs.5,00,000/- claimed in the petition. However, the actual earning disability will depend on the nature of work carried on by the employee. In the available evidence I find no grounds to suspect Exhibit X1 relied upon by the Employees Compensation Commissioner to award compensation under Section 4(1)(c)(ii) of the Employees Compensation Act, except that earning disability is not separately shown. The contention of the appellant that for driving autorickshaw, lower limbs are not required, cannot be accepted as in this case, there is disability to multiple organs of the 1st respondent including limitation of movement of left knee and hip.

As held by the Hon'ble Supreme Court in the decision in North East Karnataka Road Transport Corporation v. Sujatha, (2019)11 SCC 514, the finding of facts including percentage of disability by the Commissioner are not subject to re-appreciation by invoking the power under Section 30 of Act 8 of 1923, unless it is perverse or arbitrary or based on no evidence or against any provision of law. In the light of the evidence available in this case, it cannot be held that the above finding of the Commissioner was perverse or arbitrary or based on no evidence or against any provision of law. However, considering the entire facts including the fact that Exhibit X1 does not specify the percentage of earning disability and the compensation claimed is only Rs.5,00,000/-, in order to avoid a remand and further delay, I hold that limiting the amount of compensation to Rs.5,00,000/- will be quite reasonable and sufficient, to do justice to both sides. Points answered accordingly.

In the the above circumstance, the appeal is disposed of limiting the quantum of compensation to Rs.5,00,000/-. The compensation will carry interest @12% per annum from the date of accident till deposit.

In the result, the appeal disposed of accordingly.