ARJUN S/O. RAMANNA @ RAMU VS IFFCO TOKIO GENERAL INSURANCE CO. LTD.

ARJUN S/O. RAMANNA @ RAMU VS IFFCO TOKIO GENERAL INSURANCE CO. LTD.

NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
 CIVIL APPEAL NO. 1555 OF 2022
[@ SLP(C) No.26384 of 2019]
ARJUN S/O. RAMANNA @ RAMU …… APPELLANT
v.
IFFCO TOKIO GENERAL INSURANCE
CO. LTD. & ANR. …… RESPONDENT
O R D E R
 Leave granted.
1. The appellant was an employee of the second respondent.
He was doing the job of driving an auto-rickshaw used as a goods
carrier. On 18th February 2009, while the appellant was driving the
vehicle, he suddenly noticed a pothole on the road. Therefore, he
applied brakes. As a result, the vehicle went out of control, and it
overturned. The appellant sustained severe injuries. The vehicle
was insured with the first respondent company.
2. The appellant filed a claim under the Workmen’s
Compensation Act 1983, now titled as the Employees
2
Compensation Act 1923 (for short, “the said Act”). The claim was
filed on the footing that due to amputation of his right upper limb
above the wrist joint, he has completely lost the capacity to drive a
vehicle. He contended that he had suffered total disablement due to
the said injury. The learned Commissioner for Workmen’s
Compensation allowed the petition by upholding the said contention.
The learned Commissioner held that due to amputation of the right
upper limb, he has rendered himself unfit for driving a vehicle and,
therefore, the appellant has suffered total disablement.
3. The first respondent preferred an appeal before the High
Court. The appeal was partly allowed by holding that the disability
ought to have been assessed as 70% partial permanent disability
instead of 100%. To that extent, the compensation was reduced.
4. Shri C.B. Gururaj, the learned counsel appearing for the
appellant submitted that as a result of amputation of the right upper
limb above wrist joint, the appellant will not be in a position to
discharge his duty as a driver. Therefore, it is a case of total
disablement. He relied upon decisions of this Court in the cases of
Pratap Narain Singh Deo v. Srinivas Sabata & Anr1
. and K.
Janardhan v. United India Insurance Co. Ltd2
.
1 (1976) 1 SCC 289
2 (2008) 8 SCC 518
3
5. The learned counsel appearing for the first respondent invited
our attention to the deposition of Dr. Laxmi Narayanana, who opined
that the appellant suffered from permanent partial disability to the
extent of 40%. He submitted that the Commissioner committed an
error by proceeding on the footing that the appellant suffered from
total disablement. He submitted that Section 4 of the said Act is
mandatory. Therefore, the case of the appellant was of partial
permanent disability. He urged that the first respondent will not be
liable to pay compensation as the appellant did not possess a
driving licence to drive a commercial goods carrier. He would,
therefore, submit that no interference is called for with the judgment
of the High Court.
6. The impugned judgment of the High Court proceeds on the
accepted position that the appellant was employed as a driver to
drive an auto-rickshaw used for carrying goods. The only ground on
which the High Court reduced the compensation was that the
appellant did not suffer from total disablement. Therefore, the
Commissioner for workmen’s compensation committed an error by
taking the disability at 100%. The first respondent cannot dispute its
liability to pay compensation as the High Court has held the said
respondent liable. The first respondent has not challenged the
impugned Judgment. Therefore, the argument that the appellant did
4
not possess a driving licence to drive a commercial goods vehicle is
not open to the first respondent.
7. The only question which is required to be decided is whether
the appellant suffered from total disablement, which is defined in
clause (l) of sub-section (1) of section (2) of the said Act. On the
issue of disability, what is relevant is the statement of Dr. Laxmi
Narayanana, who examined the appellant for making an
assessment of disability.
“3) When presented he had a crush injury of
right forearm with fractured ends of radius
and ulna and triple nerve injury of the right
forearm and Guillotine Amputation with
stump reconstruction was done on 19-02-
2009 and was further managed by me since
then with follow up treatment over a period
of time.
4) On examination today all the external
injuries were found healed up and the
amputated stump is also healed up with
blunting of the stump due to which there is
functional loss of 100% of right upper limb
wherein he cannot perform any of the
activities with the upper limb on right side.
Further I state that he cannot perform the
job of driver for ever due to amputation of
his right upper limb.
5) In view of this on verifying the records
and on examination I am of the opinion that
P.P.D. is of 40% with subsequent loss in
earnings”.
 (Underline supplied)
5
8. What the doctor has stated in paragraph 5 is his opinion as
regards the percentage of disability. But in paragraph 4, the doctor
has clearly stated that the appellant has suffered from functional
loss of 100% of the right upper limb and cannot perform the job of a
driver forever due to amputation of his right upper limb.
9. In the case of Pratap Narain Singh Deo (supra) in para 5, this
Court held as under:
“5. The expression "total disablement" has been defined
in Section 2(1)(e) 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 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
6
cannot therefore be allowed to be set up on facts which
have not been admitted or established”.
10. There is no dispute that the appellant suffered from
disablement of permanent nature. The disablement has
incapacitated him from doing the work which he was capable of
doing. The said work was of driving a vehicle. Therefore, the learned
Commissioner for Workmen’s Compensation was right in holding
that the disability of the appellant will have to be treated as 100%
disability. Hence, the case of the appellant will be covered by the
definition of ‘total disablement’.
11. Therefore, the impugned judgment cannot be sustained and
will have to be set aside. We are informed that the entire
compensation amount as directed by the Commissioner was
deposited by the first respondent in the High Court and the appellant
has withdrawn the amount payable as per the impugned Judgment
of the High Court. Therefore, the appellant will be entitled to
withdraw the balance amount lying deposited in the High Court with
interest, if any, accrued thereon.
12. Accordingly, the appeal stands allowed. The order of the High
Court is set aside. The order passed by the Labour officer-cumCommissioner for Workmen’s compensation is restored.
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 13. All the pending applications, if any, also stand disposed of.
There shall be no orders as to costs.
…………..…………………J
(AJAY RASTOGI)
…………..…………………J
(ABHAY S. OKA)
New Delhi;
February 16, 2022. 

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