K. Janardhan v. United India Insurance Co. Ltd. & Anr.
HARJIT SINGH BEDI, J.1. This appeal is directed
against the judgment and order dated 5th October, 2001 of the
learned Single Judge of the Karnataka High Court whereby com
pensation of Rs.2,49,576/- awarded by the Commissioner for
Workmen's Compensation has been reduced to 8
Rs.1,62,224.40/-. It arises from the following facts.
2. The claimant- appellant a tanker driver, while driving his
vehicle from Ayanoor towards Shimoga met with an accident
with a tractor coming from the opposite side. As a result of the c
accident, the appellant suffered serious injuries and also an am
putation of the right leg up to the knee joint. He thereupon moved
an application before the Commissioner for Workmen's Com
pensation praying that as he was 25 years of age and earning
Rs. 3,000/- per month and had suffered 100% disability, he was D
entitled to a sum of Rs. 5 lac by way of compensation. The Com
missioner in his 01der dated 18th November, 1999 observed
that the claimant was 30 years of age and the salary as claimed
by him was on the higher side and accordingly determined the
same at Rs. 2000/- per month. The Commissioner also found
that as the claimant had suffered an amputation of his right leg E
up to the knee, he was said to have suffered a loss of 100% of
his earning capacity as a driver and accordingly determined
the compensation payable to him at Rs. 2,49,576/- and interest
@ 12% p.a. thereon from the date of the accident. An appeal
was thereafter taken to the High Court by the Insurance Com- F
pany- respondent. The High Court accepted the plea raised in
appeal that as per the Schedule to the Workmen's Compensa
tion Act, the loss of a leg on amputation amounted to a 60%
reduction in the earning capacity and as the doctor had opined
to a 65% disability, this figure was to be accepted and accord- G
ingly reduced the compensation as already mentioned above.
f It is in this circumstance, that the aggrieved claimant has come
up to this court.
3. The learned counsel for the appellant has raised only H
160 SUPREME COURT REPORTS (2008] 8 S.C.R.
A one argument during the course of the hearing. He has submit
ted that the claimant - appellant being a tanker driver, the loss
of his right leg ipso facto meant a total disablement as under
stood in terms of Section 2(1)(e) of the Workmen's Compen
sation Act and as such the appellant was entitled to have his
s compensation computed on that basis. In support of this plea,
the learned counsel has placed reliance on Pratap Narain Singh
Deo vs. Srinivas Sabata & Anr. (1976) 1 SCC 289. The cited
case pertained to a carpenter who had suffered an amputation
of his left arm from the elbow and this court held that this
c amounted to a total disability as the injury was of such a nature
that the claimant had been disabled from all work which he was
capable of performing at the time of the accident. It was ob
served as under:
4. The expression "total disablement" has been defined in
D 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
K. JANARDHAN v. UNITED INDIA INSURANCE 161
CO. LTD. & ANR. [HARJIT SINGH BEDI, J.]
ground and it does not require to be corrected in this A
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 B
of olecranon. A new case cannot therefore be allowed to
be set up on facts which have not been admitted or
established.
5. Applying the ratio of the cited judgment to the facts of
the present case we are of the opinion that the appellant herein C
has also suffered a 100% disability and incapacity in earning
his keep as a tanker driver as his right leg had been amputated
from the knee. Additionally, a perusal of Sections 8 and 9 of the
Motor Vehicles Act 1988 would show ttiat the appellant would
now be disqualified from even getting a driving licence. D
6. We therefore allow this appeal, set aside the judgment
of the High Court and restore that of the Commissioner but with
no order as to costs.
B.B.B. Appeal allowed. E