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.

7

 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. 

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले