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.

Leave granted. 2. The  appellant  approached  the  Commissioner, Workmen's  Compensation,  Latur,  Maharashtra  for compensation in which it was held that he lost two toes of his left leg and that there were also burn injuries.   The  appellant  was  a  driver.   By  order dated  09.07.2012  the  Commissioner,  Workmen's Compensation  awarded  compensation  of  Rs.2,79,367/- with interest @ 12% per annum from the expiry of one month from the date of the accident till realization. The insurer, respondent No.1 herein, challenged the award before the High Court.  The High Court as per the  impugned  order  reduced  the  compensation  to  a meager sum of Rs.83,664/-. 3. Despite service of notice there is no appearance for Respondent No.1/Insurance Company.   4. Be  that as  it may,  we have  heard the  learned counsel  for  the  appellant  and  learned  counsel  for Respondent No.2, who is the owner of the vehicle. We also  gone through  the impugned  judgment.  We find

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absolutely no discussion as to the basis for reducing the compensation.  On the contrary, the High Court has endorsed the findings of fact as recorded by the Commissioner,  Workmen's  Compensation  regarding  the injuries.  But, according to the High Court, it was not  possible  that  the  claimant  has  lost  earning capacity by 100%.  But that was not the views of the Commissioner, Workmen's Compensation.  The discussion is available at paragraphs 15 and 16 of the judgment of  the  Commissioner,  Workmen's  Compensation,  which are extracted below:-

“15) The applicant has raised the plea that he  has  sustained  permanent  physical disability  and  total  loss  in  his  earning capacity by the injuries caused in accident. To  prove  this  aspect  he  has  examined qualified  medical practitioner  Dr. Kazi  at Exh.U-19.   He  has  deposed  that  on radiological  and  clinical  examination  of applicant he found the loss of 4th and 5th toe of left feet and hypoesthesia and loss of weak  grip  of  right  hand,  both  feet,  he assessed permanent physical disability to the extent of 21%.  The applicant is unable to drive in future and because of that he has assessed total loss in his earning capacity. Accordingly  he  has  issued  certificate  at exh.U-20  and  U-21  respectively.   The Respondent No.2 has cross examined him but he has  not  challenged  the  calculation  of assessment of permanent physical disability on the basis of particulars given by medical officers.  No doubt the Respondent has tried to  say  that  the  medical  officer  of  Dist. Hospital  Tandur  has  not  mentioned  the injuries caused to applicant except the head

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

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

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

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

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

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

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

.......................J.               [AMITAVA ROY]  

NEW DELHI; JANUARY 16, 2018.

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