SHAIKH OSMANALI CHOUS vs. NEW INDIA ASSURANCE CO. LTD.

Full Judgment Text

NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 420/2018 (ARISING FROM SLP (C) NO.1059 OF 2015) SHAIKH OSMANALI CHOUS PETITIONER(S) VERSUS NEW INDIA ASSURANCE CO. LTD. & ANR. RESPONDENT(S)




J U D G M E N T

KURIAN, J.
ture Not Verified<br>lly signed by<br>NDRA PRASAD<br>2018.01.24<br>:31 IST<br>on:
	Leave granted.
	2. The appellant approached the Commissioner,<br>Workmen's Compensation, Latur, Maharashtra for<br>compensation in which it was held that he lost two<br>toes of his left leg and that there were also burn<br>injuries. The appellant was a driver. By order<br>dated 09.07.2012 the Commissioner, Workmen's<br>Compensation awarded compensation of Rs.2,79,367/-<br>with interest @ 12% per annum from the expiry of one<br>month from the date of the accident till realization.<br>The insurer, respondent No.1 herein, challenged the<br>award before the High Court. The High Court as per<br>the impugned order reduced the compensation to a<br>meager sum of Rs.83,664/-.
	3. Despite service of notice there is no appearance<br>for Respondent No.1/Insurance Company.
	4. Be that as it may, we have heard the learned<br>counsel for the appellant and learned counsel for<br>Respondent No.2, who is the owner of the vehicle. We<br>also gone through the impugned judgment. We find

absolutely no discussion as to the basis for reducing<br>the compensation. On the contrary, the High Court<br>has endorsed the findings of fact as recorded by the<br>Commissioner, Workmen's Compensation regarding the<br>injuries. But, according to the High Court, it was<br>not possible that the claimant has lost earning<br>capacity by 100%. But that was not the views of the<br>Commissioner, Workmen's Compensation. The discussion<br>is available at paragraphs 15 and 16 of the judgment<br>of the Commissioner, Workmen's Compensation, which<br>are extracted below:-
	“15) The applicant has raised the plea that<br>he has sustained permanent physical<br>disability and total loss in his earning<br>capacity by the injuries caused in accident.<br>To prove this aspect he has examined<br>qualified medical practitioner Dr. Kazi at<br>Exh.U-19. He has deposed that on<br>radiological and clinical examination of<br>applicant he found the loss of 4th and 5th toe<br>of left feet and hypoesthesia and loss of<br>weak grip of right hand, both feet, he<br>assessed permanent physical disability to the<br>extent of 21%. The applicant is unable to<br>drive in future and because of that he has<br>assessed total loss in his earning capacity.<br>Accordingly he has issued certificate at<br>exh.U-20 and U-21 respectively. The<br>Respondent No.2 has cross examined him but he<br>has not challenged the calculation of<br>assessment of permanent physical disability<br>on the basis of particulars given by medical<br>officers. No doubt the Respondent has tried<br>to say that the medical officer of Dist.<br>Hospital Tandur has not mentioned the<br>injuries caused to applicant except the head

	injury. It is pertinent to note that the FIR<br>is lodged on day of incident itself. In FIR<br>there is mention of injuries caused to leg<br>and hand of applicant. Therefore mere non<br>mentioning of injury by medical officer in<br>one simple chit, is not sufficient to<br>disbelieve the story and testimony of<br>applicant and medical officer. Therefore,<br>there is no substance in plea of respondent.<br>On this count it is clear that in accident<br>the applicant sustained permanent physical<br>disability to the extent of 21% as deposed by<br>qualified medical practitioner.
	16) It is true, there is no specific formula<br>to evaluate the loss of earning capacity. On<br>perusal of injuries i.e. amputation of 4th<br>and 5th toe of left leg of applicant, it<br>seems that he can walk properly. Though the<br>applicant is unable to drive the vehicle in<br>future, but he can do other work for earning<br>as observed in the case of Palraj vs.<br>Divisional Controller reported in 2011 AAC<br>393 (SC). Till today the applicant has not<br>applied to the RTO for cancellation of his<br>driving licence. Though the validity period<br>of driving licence is over on 12.6.09, the<br>applicant has not taken steps prior to expiry<br>of validity period and used such licence till<br>its expiry. On taking into consideration the<br>loss of toes and loss of grip feet, we can<br>assess his loss to the extent of 70% equated<br>with loss of the use of limb i.e. left feet<br>below the hip. I hold accordingly and answer<br>issue No.3 in partly affirmative.”

5. In that view of the matter, at paragraph 18,

having regard to the functional disability (though<br>that expression as such is not used by the<br>Commissioner, Workmen's Compensation), compensation<br>was awarded and the computation details are available<br>at paragraph 18, which reads as follows:-

	18) While determining issues No.1 to 3 and<br>issue No.5 it is observed that the applicant<br>met to an accident during course of his<br>employment with Respondent No.1 having<br>monthly wages of Rs.4,000/- and at that time<br>he was having age 46 years and both the<br>Respondents are jointly and severally liable<br>to pay the compensation. The monthly wages<br>Rs.4000/- equated to 60% and such wages<br>Rs.2400/- multiplied with relevant factor<br>166.29 with reference to age 46 years, and<br>reduced equated with loss of earning capacity<br>to the extent of 70%, the applicant is<br>entitled for compensation to extent of<br>Rs.2,79,367/-.”

6. Unfortunately, the High Court has not referred to<br>any of these discussions while reducing the<br>compensation to 1/3rd of what has been awarded by the<br>Commissioner, Workmen's Compensation. It may be seen<br>that an appeal before the High Court against an award<br>of the Commissioner, Workmen's Compensation is only<br>on a substantial question of law. We do not find<br>that there was any substantial question of law raised<br>by the Insurance Company either.
7. In the above circumstances, we are of the view<br>that the impugned order is to be set aside and that<br>of the Commissioner, Workmen's Compensation is to be<br>restored. Ordered accordingly.
8. The appeal is allowed, as above.

	9. Pending applications, if any, shall stand<br>disposed of.
	10. There shall be no orders as to costs.

.......................J.
[KURIAN JOSEPH]


.......................J.
[AMITAVA ROY]
NEW DELHI;
JANUARY 16, 2018.