# Branch Manager, The National Insurance Co. Ltd., Branch Office Ist, Meerut v. Rajbeer @ Rajkumar @ Raju & Anr

- **Citation:** (2023) 12 ILRA 112
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-06
- **Case number:** FAFO No. 1659 of 2004
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/branch-manager-the-national-insurance-co-ltd-branch-office-ist-meerut-v-rajbeer-49455
- **Pages:** 18

## Headnote

A. Civil Law - Workmen's Compensation
Act,1923-Section
30-challenge
to-
compensation
awarded
by
the
commissioner-claimant had suffered a
fracture to his right lower limb which has
led, according to CMO, to the loss of
earning
capacity
by
20%
and
the
compensation commissioner opined this
disability for the claimant would lead to
the inference of a 100% functional
disability-In
the
case
of
workmen
dedicated to a specific kind of a job like
driver, a carpenter or may be a tailor, an
injury causing whatever percentage of
permanent disablement, if it prevents the
workman from doing the job that he had
been doing before the accident, would
entitle him to claim 100% loss of earning
capacity under Section 4(1)(c)(ii) of the
Act 1923-As per thumb marked statement
he claims Rs. 2000/-per month salary but
in his examination in chief, the claimant
stated about salary of Rs. 4000/-per
month-he
has
denied
his
thumb
impression on the document-Thus, the
Compensation Commissioner concluding
that the claimant's wages have to be
determined in accordance with those
payable to a driver under the Minimum
Wages Act,1948 can hardly be flawed.
(Para 1 to 50)

B. In arriving at the quantification of
compensation, we must be guided by the
well-settled principle that compensation
can be granted both on account of
permanent disability as well as loss of
future earnings, because one head relates
to the impairment of the person's capacity
12 All. Branch Manager, The National Insurance Co. Ltd., Branch Office Ist, Meerut
113
and the other to the sphere of pain and
suffering on account of loss of enjoyment
of life by the person himself. (Para 40)

The appeal is dismissed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,987 of 60,548. This is a partial read: ask again with offset=39987 for what follows._

112 INDIAN LAW REPORTS ALLAHABAD SERIES

15. The reference to section 5A(11)
with regard to the applicability of Cr.P.C.
,where the Act and the Rules are silent,
applies
only
in
respect
of
search,
acquisition, disposal and seizure and not to
the power of confiscation. Even otherwise,
the power to confiscate vests in terms of
the mandate of Cr.P.C. by virtue of Section
452 of the Cr.P.C. that too in respect of any
property which is in the custody of the
Criminal Court and that too after the
enquiry or trial is concluded. In the present
case admittedly, the trial is continuing the
allegation
on
the
revisionist
is
of
transporting beef on the motorcycle within
the State of Uttar Pradesh which is neither
prohibited nor restrained even on a plain
reading of section 5A(1) of the Cow
Slaughter Act, as such, I have no hesitation
in holding that the power of confiscation
has been exercised without any authority of
law and on a misreading of section 5A(7)
of the Cow Slaughter Act and for the said
reasons the confiscation order cannot be
sustained and is liable to be quashed.

16. The court concerned with which
the property bearing vehicle No. UP 71 AQ
4187 is made a case property is directed to
release the same on the revisionist
establishing
his
ownership
and
on
furnishing a bond of Rs. 5000.

17. The revision is allowed in terms
of the said order.
----------
(2023) 12 ILRA 112
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.11.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

FAFO No. 1659 of 2004
Branch Manager, The National Insurance
Co. Ltd., Branch Office Ist, Meerut
 ...Appellant
Versus
Rajbeer @ Rajkumar @ Raju & Anr.
 ...Respondents

Counsel for the Appellant:
Sri S.K. Mehrotra

Counsel for the Respondents:
Sri A.A. Ansari

A. Civil Law - Workmen's Compensation
Act,1923-Section
30-challenge
to-
compensation
awarded
by
the
commissioner-claimant had suffered a
fracture to his right lower limb which has
led, according to CMO, to the loss of
earning
capacity
by
20%
and
the
compensation commissioner opined this
disability for the claimant would lead to
the inference of a 100% functional
disability-In
the
case
of
workmen
dedicated to a specific kind of a job like
driver, a carpenter or may be a tailor, an
injury causing whatever percentage of
permanent disablement, if it prevents the
workman from doing the job that he had
been doing before the accident, would
entitle him to claim 100% loss of earning
capacity under Section 4(1)(c)(ii) of the
Act 1923-As per thumb marked statement
he claims Rs. 2000/-per month salary but
in his examination in chief, the claimant
stated about salary of Rs. 4000/-per
month-he
has
denied
his
thumb
impression on the document-Thus, the
Compensation Commissioner concluding
that the claimant's wages have to be
determined in accordance with those
payable to a driver under the Minimum
Wages Act,1948 can hardly be flawed.
(Para 1 to 50)

B. In arriving at the quantification of
compensation, we must be guided by the
well-settled principle that compensation
can be granted both on account of
permanent disability as well as loss of
future earnings, because one head relates
to the impairment of the person's capacity
12 All. Branch Manager, The National Insurance Co. Ltd., Branch Office Ist, Meerut
113
and the other to the sphere of pain and
suffering on account of loss of enjoyment
of life by the person himself. (Para 40)

The appeal is dismissed. (E-6)

List of Cases cited:
1. ICICI Lombard Gen. Ins. Co. Ltd Vs Ajay
Kumar Mohanty & anr. (2018) 3 SCC 686

2. Raj Kumar Vs Ajay Kumar & anr. (2011) 1
SCC 343

3. NICL Vs Mubasir Ahmed & anr. (2007) 2 SCC
349

4. OICL Vs Mohd Nasir & anr. (2009) 6 SCC 280

5. Shivalinga Shivanagowda Patil Vs Erappa
Basappa Bhavihala (2003) SCC OnLine Kar 772

6. New India Assr. Co. Ltd. Vs Sudarsan Samal
& anr. (1994) SCC Online Ori. 373

7. K.P. Hanumantha Gowda & anr. Vs Devaraju
& anr.(1995) SCC OnLine Kar 170

8. Pratap Narain Singh Deo Vs Srinivas Sabata
& anr.(1976) 1 SCC 289

9. K.Janardhan Vs UIICL & anr. (2008) 8 SCC
518

10. S.Suresh Vs OICL & anr. (2010) 13 SCC 777

11. Arjun S/o Ramanna @ Ramuu Vs IFFCO
Tokio Gen. Ins. Co. Ltd. & anr.. (2022) 5 SCC
706

(Delivered by Hon'ble J.J. Munir, J.)

1. This is an appeal by the Insurance
Company
under
Section
30
of
the
Workmen's Compensation Act, 1923 (now
renamed as 'Employee's Compensation Act,
1923') (for short, 'the Act of 1923')
questioning an award of the Workmen
Compensation Commissioner, Saharanpur
dated 15.04.2004 passed in W.C.A No.16
of 2002, awarding compensation to the
claimant in an injury case.

2. The claimant-respondent is one
Rajbeer @ Rajkumar @ Raju, who will
hereinafter
be
called
'the
claimant'.
According to the claimant, he was
employed as a driver with a certain M/s.
Krishna Food Industries, K.G. Gramodyog
Sansthan, Dehradun Road, Saharanpur.
M/s. Krishna Food Industries, who are
opposite party No.1 to the workmen's
compensation case and respondent No.2 to
this appeal, shall hereinafter be called 'the
owners'.

3. On 06.07.2001, the claimant was
driving the employers' truck, an LPT-709,
bearing Registration No. UP-11E-3770 on
the Roorkee-Haridwar Road. He was
proceeding from Rishikesh to Saharanpur.
The claimant was carrying a consignment
of goods for delivery to a certain
consignee. As the truck reached near the
Kauliyar
Crossing
on
the
RoorkeeHaridwar Highway, there was a head-on
collision between the claimant's truck and a
U.P. Roadways bus proceeding towards
Rishikesh.
The
accident
resulted
in
grievous injuries to the claimant. He was
conveyed from the site of accident to the
Government Hospital, Haridwar by the
Police. The claimant had suffered a fracture
to his right lower limb. On the following
day i.e. 07.07.2001, the claimant's family
members took him for treatment to Dr.
Himanshu of Saharanpur, who had to put
an iron rod in the claimant's right lower
limb. He remained admitted to Dr.
Himanshu's Nursing Home/ Hospital for 18
days, and, thereafter remained bed-ridden
for three months continuously on account
of the iron rod implanted into his right
lower limb. The claimant says that he can
walk, but cannot drive. In fact, he cannot
114 INDIAN LAW REPORTS ALLAHABAD SERIES
do any heavy work. According to the
claimant's
case,
he
has
become
handicapped and unfit to do a driver's job.
At the time of the accident, he was in
receipt of a salary of Rs.4000/- per month,
besides Rs.50/- per day towards his diet
allowance. He was aged 32 years back
then. The ill-fated truck that the claimant
was driving is insured with the National
Insurance Company Ltd., Branch Office-I,
Meerut through its Manager. The said
Insurance Company, who are opposite
party No.2 to the workmen's compensation
case
and
the
appellant
here,
shall
hereinafter be called 'the insurers'.

4. The owners and the insurers after
putting in appearance filed separate written
statements. The owners in their written
statement admitted the fact that the
claimant was employed with them on 6th
July, 2001 as a driver. They have also
admitted the factum of accident. However,
the owners have denied that the claimant
was in receipt of a salary of Rs.4000/- per
month and Rs.50/- towards a daily diet
allowance. Instead, it is the owner's case
that the claimant was employed on a dailywage of Rs.80/-. It is also their case that the
ill-fated vehicle on the date of the accident
was covered by a valid and effective
insurance policy issued by the insurers,
and,
therefore,
the
liability
to
pay
compensation, if any, would be that of the
insurers.

5. The insurers filed their written
statement generally denying the allegations
in the claim. It was pleaded that the
particulars of the driving licence and the
insurance policy have not been disclosed
by the claimant. It is their case that in the
absence of the aforesaid facts, it is difficult
to plead to this part of the claim. The
insurers also say that regarding the income,
age, injury, disability and the accident, no
documentary evidence has been filed on
behalf of the claimant.

6. In his rejoinder, the claimant has
disputed the stand of the owners and the
insurers and reiterated his case.

7. Upon the pleadings of parties,
the
Workmen's
Compensation
Commissioner framed the following issues
(translated into English from Hindi):

"(1) Whether the claimant has
made an application seeking exemption
from paying court-fee?

(2) Whether on account of the
accident
dated
07.07.2001
(sic),
the
claimant has suffered a loss to his earning
capacity? If yes, its effect?

(3) Whether the loss in earning
capacity certified by the Chief Medical
Officer
vide
his
certificate
dated
02.01.2003 is referable to the accident
dated 07.07.2001 (sic)?

(4) What was the claimant's age
and income at the time of the accident?

(5) Whether the claimant is
entitled to compensation and penalty?"

8. In support of the claim, the
claimant filed a copy of the check FIR
giving rise to Crime No.247 of 2001, under
Sections 279 and 304 IPC, Police Station
Jwalapur, District Haridwar, a photocopy
of the claimant's driving licence valid from
01.12.1995 to 30.11.1998, a copy of the
injury report dated 07.07.2001, a copy of
the notice of claim served through the
learned Counsel upon the owners and the
insurers along with a copy of the postal
receipt and the acknowledgment, a copy of
the certificate dated 02.01.2003 issued by
the Chief Medical Officer, Saharanpur
certifying a loss of 20% earning capacity.
12 All. Branch Manager, The National Insurance Co. Ltd., Branch Office Ist, Meerut
115
There is then on record a further certificate
dated 02.05.2003 issued by the Chief
Medical Officer, Saharanpur on a direction
made by the Compensation Commissioner,
which evaluates the claimant and certifies
the fact that he is no longer fit to drive a
vehicle.

9. The claimant examined himself as
a witness in support of his case, where at
the end of his examination-in-chief he was
cross-examined both by the owners and the
insurers.

10. In support of the owners' case,
Vipin Kumar testified in the witness-box
and was cross-examined on behalf of the
claimant. Yameen son of Mohd. Yaseen
was also examined as a witness on behalf
of the owners.

11. Issue No.1 was decided by the
Compensation Commissioner with the
remark
that
no
application
seeking
exemption from payment of court-fee has
been made, but on 05.03.2004, the claimant
had sought some time to make an
application for the purpose. The issue, in
the opinion of this Court, is a non-issue,
which ought not have been framed. The
finding is equally inconsequential. In the
present case, it must be said that there is no
issue raised about deficiency in the courtfee paid and no ground in that regard has
been raised or a question framed.

12. Issue No.2 was decided by the
Compensation Commissioner holding that
the driver was employed with the owners, a
fact that the owners have admitted. It has
further been held that on 07.07.2001 (sic)
while driving the owners' vehicle and in the
course of employment, the claimant met with
a motor accident, resulting in fracture to his
right lower limb, which has led, according to
the Chief Medical Officer, to the loss of
earning capacity by 20%. It has also been
opined that the claimant is found unfit to
work as a driver.

13. In answering Issue No.3, all that the
Compensation Commissioner has remarked
is that it has been made clear, while
answering Issue No.2 that the owners have
admitted the fact, that the claimant while in
their employment met with an accident,
leading to injuries that caused a fracture to his
right lower limb.

14. Issue No.4 has been decided by the
Compensation Commissioner holding that
the claimant is entitled to compensation
worked out on a monthly salary of Rs.2700/-,
which is in accord with the minimum wages
in force at the time.

15. Issue No.5 has been decided
holding that the claimant has been found unfit
to work as a driver and after consideration of
authority on the point, the Compensation
Commissioner has opined that this disability
for the claimant would lead to the inference
of a 100% functional disability.

16. The Compensation Commissioner,
on the basis of the claimant's age being 32
years at the time of the accident and his
income Rs.2700/- per month, has determined
for
the
claimant
a
compensation
of
Rs.3,30,237/-, which the insurers have been
held liable to make good. The compensation
has been ordered to be paid within 30 days
through a bank draft to be deposited in Court,
failing which the award would carry simple
interest @ 10% per annum payable by the
insurers.

17. Aggrieved by the Compensation
Commissioner's award, the insurers have
preferred this appeal.
116 INDIAN LAW REPORTS ALLAHABAD SERIES

18. This appeal was admitted to
hearing on 05.07.2004 by a Division Bench
of this Court in terms of the following
order:

"विपक्ष पक्ष को नोविस जारी हो तथा
यह अपील मेमो आफ अपील पर वलखे सारभूत
प्रश्ोों पर विचाराथथ स्वीकृत की जाती है।

इसी बीच अपीलकताथ ने जो भी पैसा
अधीनस्थ न्यायालय में जमा वकया है, उसका 1/4
भाग दािेदार वबना प्रवतभू के ि 1/4 भाग प्रवतभू
देने पर उठा सकता है। बाकी पैसा वकसी राष्ट्रीय
कृत बैंक के आिती खाते में (Recurring fixed
deposit) जमा कर वदया जाय।"

19. When the appeal came up for
hearing before this Court on 19.10.2022,
the insurers were present, but no one
appeared on behalf of the claimant.
Accordingly, after hearing the insurers,
judgment was reserved on 19.10.2022. It
was heard earlier as well and judgment
reserved, but it was noticed by this Court
that the order admitting the appeal had not
formulated any substantial question of law,
a mandatory requirement of the statute.
Instead, the order of admission merely
referred
to
the
substantial
questions
formulated at the foot of the memorandum
of appeal. This, this Court thought, was not
in compliance with the requirements of the
statute, where the Court is required to
formulate the substantial question(s) of law
that arise(s) for consideration. Accordingly,
this appeal was posted for further hearing
and it was on 26.04.2023, when the
following substantial questions of law were
framed in the presence of the learned
Counsel for the insurers, Mr. S.K. Mehrotra
and Mr. A.A. Ansari, learned Counsel, who
appeared for the claimant:

1. Whether in the absence of any
evidence regarding incapacity of the
claimant in doing any kind of work, the
Employees Compensation Commissioner
could infer 100% loss of earning capacity
for
the
purpose
of
calculating
compensation?

2. Whether in the face of an
admission of the claimant's that he was
getting a total of Rs. 2,000/- per month
towards
salary,
the
finding
of
the
Employees Compensation Commissioner in
holding his wages to be Rs 2,700/- per
month as prescribed for the Government
Drivers is perverse?

20. On 08.05.2023, after hearing the
learned Counsel for the insurers and the
claimant, judgment was reserved.

21. Heard Mr. S.K. Mehrotra, learned
Counsel for the insurers and Mr. A. A.
Ansari, learned Counsel appearing for the
claimant and perused the record.

22. Mr. Mehrotra has argued, so far as
the first substantial question of law is
concerned,
that
the
Compensation
Commissioner has opined on the evidence
that the claimant was employed as a driver
on the ill-fated truck and had sustained a
fracture to his leg in the accident. The
Chief Medical Officer has issued a
certificate, upon which the Compensation
Commissioner has relied, holding that the
claimant would have suffered a 20% loss in
his earning capacity. He has emphasized
that the 20% loss in the claimant's earning
capacity, certified by the Chief Medical
Officer, has been construed in manifest
error by the Compensation Commissioner
to be a 100% loss, without taking into
account the statement dated 11.05.2002
apparently made before the insurers, thumb
marked by the claimant and filed along
with the list of papers before the
Compensation Commissioner, which reads:
12 All. Branch Manager, The National Insurance Co. Ltd., Branch Office Ist, Meerut
117

"मैं चल वफर सकता हूँ, कोई भारी
कायथ नहीों कर सकता हूँ।"

23. According to Mr. Mehrotra, the
Commissioner has committed an illegality
in construing the loss of 20% in earning
capacity or 20% impairment certified by
the C.M.O. as 100% loss in earning
capacity. Mr. Mehrotra has submitted that
in determining the loss of earning capacity,
the Commissioner has to bear in mind 'all
work', which the workman was capable of
performing at the time of the accident.
According to the learned Counsel for the
insurers, functional disability cannot be
construed as 100% because the physical
disability, found on medical opinion, is a
small percentage, may be of a permanent
nature,
which
renders
the
workman
incapable of performing the particular work
that he was doing before the accident. In
determining the percentage of permanent
disability, the learned Counsel would
submit that the Commissioner must bear in
mind whether the workman is capable of
performing any other work; not just the
work that he was hitherto doing. Mr.
Mehrotra in support of his contention has
placed reliance upon the authority of the
Supreme
Court
in
ICICI
Lombard
General Insurance Company Limited v.
Ajay Kumar Mohanty and another, (2018)
3 SCC 686. He has placed reliance upon the
decision of the Supreme Court in Raj
Kumar v. Ajay Kumar and another,
(2011) 1 SCC 343 as well as their Lordships'
authority in National Insurance Co. Ltd. v.
Mubasir Ahmed and another, (2007) 2
SCC 349. Mr. Mehrotra has further
buttressed his contention on the foot of the
authority of the Supreme Court in Oriental
Insurance Company Limited v. Mohd.
Nasir and another, (2009) 6 SCC 280. He
has also reposed faith in the holding of a Full
Bench of the Karnataka High Court in
Shivalinga Shivanagowda Patil v. Erappa
Basappa Bhavihala, 2003 SCC OnLine
Kar 772.

24. On the other hand, Mr. Ansari,
appearing for the claimant, says that the
position of the law appears to be settled that if
in consequence of the injury sustained, which
is of a permanent nature, the workman is
rendered incapable of doing the work that he
was hitherto doing, his disability must be
regarded as 100% functional.

25. Before this Court proceeds to look
into the law governing the subject that has
given rise to the first substantial question, it is
essential to look into some essential evidence
in the backdrop of which the substantial
question has arisen. It has to be appreciated
that in a matter involving something like a
compensation claim by a workman for an
injury that he says has given him a permanent
disability, and consequent loss of income, the
substantial question under reference for its
answer would bear some nexus to what the
case of the parties is. A substantial question
cannot be answered divorced from facts, an
absolute expression of academic opinion. It is
for this reason that the various high
authorities, on which reliance has been placed
by Mr. Mehrotra and some others as well,
which this Court would notice during the
course of this judgment, refer to facts like the
percentage and character of permanent
disability certified and the nature of the
workman's job. It is bearing in mind those
principles that this Court considers it
imperative to look into some vital evidence
that would have material bearing on a correct
answer to the substantial question under
consideration.

26. This Court finds that there are not
one but two medical certificates about the
disability sustained by the claimant on
118 INDIAN LAW REPORTS ALLAHABAD SERIES
record. The first is a certificate dated
02.01.2003 issued by the Chief Medical
Officer, Saharanpur, based on a medical
examination of the claimant done by Dr. A.
Nagaich,
District
Medical
Officer,
Saharanpur, a senior orthopedic surgeon.
This document bears Ex. No. W2. It was
exhibited
before
the
Compensation
Commissioner
on
12.03.2004.
This
certificate
is
rather
quaintly
worded
regarding medical opinion about the
physical disability that the claimant had
suffered:

"इनकी आख्या के आधार पर इनके
दायें िाोंग 20% (20 प्रवतशत) की अजथन छमता
में हावन है।"

27. The Compensation Commissioner
seems to have taken into consideration this
certificate, and perhaps, fairly construed the
rather oddly expressed opinion by the Chief
Medical Officer as a certification of the fact
that there was a 20% permanent disability
sustained by the claimant to his right lower
limb (leg).

28. It appears that the Compensation
Commissioner through a letter dated 13th
March, 2003 inquired of the Chief Medical
Officer about the fact if the claimant would
be able to function as a driver in
consequence of the injury sustained in the
accident. Apparently, this inquiry was most
relevant to the issue and rightly addressed
by the Compensation Commissioner, who
issued the memo dated 13.03.2003 to the
Chief Medical Officer, Saharanpur. In
answer, the claimant was re-examined by
Dr. Nagaich, Orthopedic Surgeon, on
whose opinion the earlier certificate, Ex.
W2 was based, and on the re-examination
done by Dr. Nagaich, the Chief Medical
Officer,
Saharanpur
issued
another
certificate dated 02.05.2003 addressed to
the Compensation Commissioner, bearing
the claimant's thumb impression of course,
where the opinion expressed is that the
claimant is unfit to drive a vehicle. It would
be of profit to quote the contents of the
certificate dated 02.05.2003 issued by the
Chief Medical Officer, Saharanpur, which
has
been
exhibited
before
the
Compensation Commissioner as Ex. W1,
also on 12.03.2004. The material part of the
certificate aforesaid reads:

"आपके पत्र सोंख्या: 2059/डब्लू0सी0ए0
/ 16 / 02 वदनाोंक 13-3-2003 के सन्दभथ में आपके
द्वारा श्री राजिीर उफथ राजू पुत्र श्री सुल्हर वसोंह
वनिासी-ग्राम-काोंकरकुई थाना-रामपुर मवनहारान
वजला-सहारनपुर का पुनः परीक्षण करके इस
आशय की स्पष्ट् आख्या िाोंवछत है वक क्या श्री
राजिीर वसोंह डराइिर कायथ करने योग्य है अथिा
नहीों। इसकी जाोंच िररष्ठ अस्स्थ रोग विशेषज्ञ डा0
ए0नगायच वजला वचवकत्सालय सहारनपुर से कराई
गई. उनकी आख्या वदनाोंकः 15-2-2003 द्वारा श्री
राजिीर वसोंह िाहन चलाने में अयोग्य हैं।"

29. The Compensation Commissioner
has taken note of the medical certificate dated
Ex. W1 to found his opinion that the claimant
has been rendered unfit to do the job of a
driver, which he was undertaking and the
fact, therefore, entitles him to compensation
for a 100% loss of earning capacity. The
Compensation Commissioner has placed
reliance for his conclusions upon the
authority of the Orissa High Court in New
India Assurance Co. Ltd. v. Sudarsan
Samal and another, 1994 SCC OnLine Ori
373, the holding of the Karnataka High Court
in K.P. Hanumantha Gowda and another
v. Devaraju and another, 1995 SCC
OnLine Kar 170, and, particularly, the
decision of the Supreme Court in Pratap
Narain Singh Deo v. Srinivas Sabata and
another, (1976) 1 SCC 289.
12 All. Branch Manager, The National Insurance Co. Ltd., Branch Office Ist, Meerut
119

30. In Mubasir Ahmed (supra), upon
which Mr. Mehrotra has placed emphatic
reliance, it has been observed:

"8. Loss of earning capacity is,
therefore, not a substitute for percentage of
the physical disablement. It is one of the
factors taken into account. In the instant
case the doctor who examined the claimant
also
noted
about
the
functional
disablement. In other words, the doctor had
taken note of the relevant factors relating to
loss of earning capacity. Without indicating
any reason or basis the High Court held
that there was 100% loss of earning
capacity. Since no basis was indicated in
support of the conclusion, same cannot be
maintained. Therefore, we set aside that
part of the High Court's order and restore
that of the Commissioner, in view of the
fact situation. Coming to the question of
liability to pay interest, Section 4-A(3)
deals with that question. The provision has
been quoted above."

31. It would be noticed that in
Mubasir Ahmed, the doctor, who reexamined the various claimants sustaining
injuries during the course of employment,
had opined distinctly about the percentage
of
permanent
disability,
functional
disability and loss of earning capacity, and
in each case, the loss of earning capacity
was assessed as 80%. The permanent
disability and the functional disability was
assessed at different percentages for the
three claimants involved in the batch of
three appeals arising from three different
claim
petitions.
The
Compensation
Commissioner had apparently judged the
loss of earning capacity below 100%, but
on appeal to the High Court, the loss of
earning capacity was estimated as 100%.
The remarks of their Lordships came in the
backdrop of the fact that there were no
reasons indicated by the High Court to hold
a 100% loss of earning capacity for the
claimants. As would be presently shown,
that is not the case here.

32. The Compensation Commissioner
in this case has regarded it a case of 100%
loss of earning capacity based on the
provisions of Section 4(1)(c)(ii) of the Act
of 1923, where in case of injuries not
specified in Schedule-I of the Act of 1923,
the percentage of compensation payable in
case of permanent total disablement has to
be determined proportionate to the loss of
earning capacity, to borrow the words of
the statute. Particularly, the Compensation
Commissioner has gone by the law that the
loss of earning capacity has to be assessed
by a qualified medical practitioner. The
certificate, Ex. W1 in this case, has been
issued by the C.M.O. on the report of Dr.
Nagaich, a qualified orthopedic surgeon,
who has specifically opined that the
claimant is no longer fit to drive a vehicle.
The Compensation Commissioner has
further inferred a 100% loss of earning
capacity going by the principle laid down
by high authority, which says that if the
workman suffers injury of a kind that leads
to permanent disablement and incapacitates
him from performing all kind of work that
he
was
capable
of
performing,
the
disablement is total. The principle has been
laid down in the context of workmen, such
as drivers or carpenters, that would
squarely apply to the case here. In this
connection, reference may be made to the
decision of the Supreme Court in Pratap
Narain Singh Deo (supra), where a three
Judge Bench of their Lordships of the
Supreme Court has observed:

"5.
The
expression
"total
disablement" has been defined in Section
2(1)(e) of the Act as follows:
120 INDIAN LAW REPORTS ALLAHABAD SERIES

"(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 a nature as to
cause
permanent
disablement
to
the
respondent,
and
the
question
for
consideration is whether the disablement
incapacitated the respondent for all work
which he was capable of performing at the
time of the 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 the 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. Counsel for the appellant has
not been able to assail it on any ground and it
does not require to be corrected in this appeal.
There is also no justification for the other
argument which has been advanced with
reference to Item 3 of Part II of Schedule 1,
because it was not the appellant's case before
the Commissioner that amputation of the arm
was from 8" from tip of acromion to less than
4 below the tip of olecranon. A new case
cannot therefore be allowed to be set up on
facts which have not been admitted or
established."

33. In view of the aforesaid facts and
the settled position of the law, this Court is
afraid that the authority in Mubasir
Ahmed would be of little assistance to the
insurers.

34. The next decision that has been
pressed in aid on behalf of the insurers is
Mohd. Nasir (supra). Mr. Mehrotra has
drawn the Court's attention to the following
observations of their Lordships in Mohd.
Nasir:

"14. A question has been raised
as to whether the percentage of loss of
earning capacity and the physical disability
shall be the same. A question has
furthermore been raised as regards the
applicability of the multiplier specified in
the Second Schedule appended to the 1988
Act on the premise that the same would not
be applicable in respect of the claim
petition which is filed under Section 166 of
the Act.

15.Before
adverting
to
the
questions raised before us, we may notice
the statutory provisions contained in the
1923 Act and the 1988 Act.

23. Both the 1923 Act and the
1988 Act are beneficent legislation insofar
as
they
provide
for
payment
of
compensation to the workmen employed by
the employers and/or by use of motor
vehicle by the owner thereof and/or the
insurer
to
the
claimants
suffering
permanent disability. The amount of
compensation is to be determined in terms
of the provisions of the respective Acts.
Whereas in terms of the 1923 Act, the
Commissioner who is a quasi-judicial
authority, is bound to apply the principles
and the factors laid down in the Act for the
purpose of determining the compensation,
Section 168 of the 1988 Act enjoins the
Tribunal to make an award determining the
amount of compensation which appears to
be just.

24. Both the Acts aim
at
providing for expeditious relief to the
victims of accident. In these cases, the
accidents took place by reason of use of
motor vehicles. Both the statutes are
beneficial ones for the workmen as also the
12 All. Branch Manager, The National Insurance Co. Ltd., Branch Office Ist, Meerut
121
third parties. The benefits thereof are
available only to the persons specified
under the Act besides under the contract of
insurance. The statutes, therefore, deserve
liberal construction. The legislative intent
contained
therein
is
required
to
be
interpreted with a view to give effect
thereto.

25. With the aforementioned
backdrop, we may analyse the contentions
raised before us by the learned counsel for
the parties.

26. Both the statutes provide for
the mode and manner in which the
percentage of loss of earning capacity is
required to be calculated. They provide that
the amount of compensation in cases of this
nature would be directly relatable to the
percentage of physical disability suffered
by the injured vis-à-vis the injuries
specified in the First Schedule of the 1923
Act.
Indisputably
where
injuries
are
specified in the First Schedule, the mode
and manner provided for the purpose of
calculating the amount of compensation
would be applicable.

27. The statutes provide for the
determination of the extent of physical
disability suffered by a qualified medical
practitioner so as to enable him to assess
the loss of earning capacity. Explanation 1
appended to clause (c) of sub-section (1) of
Section 4 provides that where there are
more injuries than one, the aggregate
amount of compensation has to be taken
but the same should not exceed the amount
which would have been payable in case of
permanent total disablement. It is also
beyond any doubt or dispute that while
determining the amount of loss of earning
capacity, the Tribunal or the High Court
must record reasons for arriving at their
conclusion.

28. The 1923 Act would also be
applicable to the claims applications arising
out of the use of motor vehicles in terms of
the provisions of the 1988 Act for the
purpose of determination of the amount of
compensation where the victim of the
accident suffers from disability in the cases
coming within the purview thereof. The
note appended to the Second Schedule of
the 1988 Act raises a legal fiction, stating
that "injuries deemed to result in permanent
total
disablement/permanent
partial
disablement and percentage of loss of
earning capacity shall be as per Schedule I
under the Workmen's Compensation Act,
1923". Permanent disability, therefore, for
certain purposes have been co-related with
functional disability.

29. As to what, therefore, in our
opinion, would be relevant is to find out the
nature of injuries and as to whether the
same falls within the purview of Part I or
Part
II
thereof.
We
have
noticed
hereinbefore that whereas Part I specifies
the injuries which would deem to result in
permanent
total
disablement,
Part
II
specifies injuries which would be deemed
to result in permanent partial disablement.

30. The distinction between the
"permanent
total
disablement"
and
"permanent partial disablement" is that
whereas in the former it is 100%
disablement, in the latter it is only the
disablement to the extent specified in the
Schedule. Similar terms have been used in
clauses (a) and (b) of Para 5 of the Second
Schedule of the Motor Vehicles Act. It, by
reference, incorporates the provisions of
the First Schedule to the 1923 Act.
Indisputably, therefore, the Note appended
thereto would not only be applicable to the
cases falling under the 1923 Act but apply
to the cases which fall under the 1988 Act
as well.

31. Our attention, however, has
been drawn to a decision of this Court in
National Insurance Co. Ltd. v. Mubasir
122 INDIAN LAW REPORTS ALLAHABAD SERIES
Ahmed [(2007) 2 SCC 349 : (2007) 1 SCC
(L&S) 643] , wherein it was held: (SCC p.
354, para 8)

"8. Loss of earning capacity is,
therefore, not a substitute for percentage of
the physical disablement. It is one of the
factors taken into account. In the instant
case the doctor who examined the claimant
also
noted
about
the
functional
disablement. In other words, the doctor had
taken note of the relevant factors relating to
loss of earning capacity. Without indicating
any reason or basis the High Court held
that there was 100% loss of earning
capacity. Since no basis was indicated in
support of the conclusion, same cannot be
maintained. Therefore, we set aside that
part of the High Court's order and restore
that of the Commissioner, in view of the
fact situation. Coming to the question of
liability to pay interest, Section 4-A(3)
deals with that question. The provision has
been quoted above."

32. In determining the amount of
compensation, several factors are required
to be taken into consideration having
regard to the Note. Functional disability,
thus, has a direct relationship with the loss
of limb."

35. This Court may say that there can
be no cavil about the principles for the
determination of permanent total disablement
and permanent partial disablement or the
functional disability and the proportionate
loss of earning capacity adumbrated. Does
the determination in this case falls foul of the
ratio on one or the other principle in Mohd.
Nasir? We do not think so. Mohd. Nasir was
again a case where a batch of appeals was
considered by their Lordships and the one
involving Mohd. Nasir's claim bears closest
on the facts here. The facts in Mohd. Nasir
can best be recapitulated in the words of their
Lordships that figure in Paragraph Nos.3 and
4 of the report thus:

"3. The first respondent in this
appeal was the driver of a truck bearing
Registration No. UP 21 9636. Respondent 2
was its owner. An accident took place on 210-2004 wherein the first respondent suffered
an injury in his right leg besides others. He
filed
an
application
for
award
of
compensation in terms of the provisions of
the 1923 Act before the Commissioner for
Workmen's
Compensation,
Moradabad
claiming a sum of Rs 1,50,000 with interest.

4. The Commissioner opined that
although the workmen had suffered 15%
disability but loss of his earning capacity was
100%. Noticing that he was aged about 35
years and his salary was Rs 3200 per month,
a sum of Rs 3,78,355.20 was awarded with
interest at the rate of 12% per annum from
the date of accident till payment. The High
Court dismissed the appeal in limine."

36. In answering the issues arising
before their Lordships in Mohd. Nasir, it was
held:

"33. Mohd. Nasir was a driver. A
driver of a vehicle must be able to make
use of both his feet. It was the case of the
claimant that he would not be in a position
to drive the vehicle and furthermore would
not be able to do any other work. He was
incapable of taking load on his body. It,
however, appears that in his crossexamination, he categorically stated that
only the Chief Medical Officer had
checked him in his office. No disability
certificate had been granted. He admitted
that he had not suffered any permanent
disability. He, even according to the Chief
Medical Officer who had not been
examined, suffered only 15% disability.
12 All. Branch Manager, The National Insurance Co. Ltd., Branch Office Ist, Meerut
123

34. The Tribunal has arrived at
the following findings:

"On p. 16, the original of
disability certificate, the prescription of
medicine, x-ray report of Sarvodaya and of
Mohan X-Rays have been produced which
reveal the fracture of right leg. CMO
Certificate O/M 9/2003 dated 21-3-2005
has also been produced which is alleged to
be false by the Insurance Company. I have
perused them carefully which bears the
signature of Deputy CMO officer of the
Disability Board, Moradabad had it shown
that the applicant had appeared before them
for
medical
check-up
and
whose
examination
was
done
by
Senior
Orthopaedics Surgeon Dr. R.K. Singh. On
the basis of recommendation of Dr. Bansal
operation was done on 2-10-2004, the
applicant walked with the help of support
and is not competent to drive the heavy
motor vehicle. The said certificate was
issued with recommendation that after six
months his condition is to be reviewed.

That document was filed on 29-32005. Insurance Company has stated that
the doctor who has issued the disability
certificate has not been produced in the
court. But looking into the aftermath
situation the plea of Insurance Company
that the said certificate is forged and the
same has not been issued by any MBBS
doctor, carries no force."

35. The learned Tribunal had held
that there has been a 15% disability but
then there was nothing to show that Mohd.
Nasir suffered 100% loss of earning
capacity. The Commissioner has applied
197-06 as the relevant factor, his age being
35. He, therefore, proceeded on the basis
that it was a case of permanent total
disablement. However, his income was
taken to be at Rs 1920 per month. There is
nothing on record to show that the qualified
medical practitioner opined that there was a
permanent and complete loss of use of his
right leg or that he became totally unfit to
work as a driver. In that situation, the High
Court, in our opinion, was not correct in
determining the loss of income at 100%."
(emphasis by Court)

37. The principle that is then laid
down in Mohd. Nasir is in the backdrop of
evidence that was very different than the
one that obtains in this case. Mohd. Nasir
had in his cross-examination said that he
was examined by the Chief Medical Officer
in his office and the only opinion expressed
by the C.M.O. was that Nasir had suffered
15% disability. It was a case where no
evidence was produced to show that a
qualified medical practitioner had opined
the claimant to have suffered a permanent
and complete loss of the use of his right leg
or that he had become totally unfit to
function as a driver. By contrast, in the
present case, Ex. W1 would show that the
certificate by the C.M.O. had been issued
based on the opinion of a qualified
orthopedic surgeon Dr. Nagaich, who had
twice
examined
the
claimant.
The
certificate says in categorical terms that the
claimant had become unfit to drive, in the
doctor's opinion. Therefore, the principles
laid down in Mohd.