SRI CHANAPPA NAGAPPA MUCHALAGODAversusDIVISIONAL MANAGER, NEW INDIA INSURANCE COMPANY LIMITED

556                      [2019]REPORTS
               SUPREME COURT    14 S.C.R. 556              [2019] 14 S.C.R.


A              SRI CHANAPPA NAGAPPA MUCHALAGODA
                                        v.
            DIVISIONAL MANAGER, NEW INDIA INSURANCE
                             COMPANY LIMITED
B                        (Civil Appeal No.9306 of 2019)
                             DECEMBER 10, 2019
          [UDAY UMESH LALIT AND INDU MALHOTRA, JJ.]
             Workmen’s Compensation Act, 1923 – s.4 and relevant factor
C     of 201.66 as per Schedule IV – Enhancement of the compensation
      – The appellant-driver, while driving a truck lost control of it due to
      an axle cut and dashed against a rock on the side of the road – As
      a consequence, the appellant suffered grievous injuries all over
      his body – Appellant underwent hospitalization for 65 days – His
      right leg was permanently injured, which resulted in complete
D
      disability to continue his vocation as a driver of a heavy motor
      vehicle – Appellant filed claim against the truck owner and the
      Insurance Company – Commissioner awarded Rs.1,81,494/- as
      compensation – High Court enhanced the compensation to Rs.
      2,90,390/- with interest @ 12% p.a. payable from one month after
E     the date of the accident – On appeal, held: The medical evidence
      on record corroborated appellant’s inability to stand for a long
      period of time or even fold his legs – Appellant was incapacitated
      for life and lost his ability to work as a driver – The functional
      disability suffered was assessed as 100% and relevant factor was
      201.66 as per Schedule IV to the Act – Consequently, the
F
      compensation payable to the appellant worked out to Rs. 4,83,984/
      - – Further, a lump sum amount of Rs.1,00,000/- awarded towards
      hospitalization and medical expenses incurred by the appellant.
            Allowing the appeal, the Court
G           HELD: 1. Various Judgments of the Supreme Court are
      instructive for assessing the compensation payable to the
      appellant in the present case. As a consequence of the accident,
      the Appellant has been incapacitated for life, since he can walk
      only with the help of a walking stick. He has lost the ability to
      work as a driver, as he would be disqualified from even getting a
H     driving license. The prospect of securing any other manual labour
                                       556
SRI CHANAPPA NAGAPPA MUCHALAGODA v. DIVISIONAL MANAGER,               557
          NEW INDIA INSURANCE COMPANY LIMITED


job is not possible, since he would require the assistance of a       A
person to ensure his mobility and manage his discomfort. As a
consequence, the functional disability suffered by the Appellant
must be assessed as 100%. [Para 11][562 A-B]
      Raj Kumar v. Ajay Kumar and Ors. (2011) 1 SCC 343
      : [2010] 13 SCR 179; K. Janardhan v. United India               B
      Insurance Co. Ltd. (2008) 8 SCC 518 : [2008] 8 SCR
      157; S. Suresh v. Oriental Insurance Co. Ltd. & Anr.
      (2010) 13 SCC 777 : [2009] 14 SCR 990 - relied on.
      2. The judgment of the High Court affirmed on assessing
the income of the Appellant at Rs. 4,000/- p.m. as per the evidence   C
of his employer. The “functional disability” of the Appellant is
assessed as 100%, and the relevant factor would be 201.66 as
per Schedule IV to the Workmen’s Compensation Act, 1923.
Consequently, the compensation payable to the Appellant would
work out to Rs. 4,83,984/- under Section 4 of the Act. [Para
12][562 C-D]                                                          D

      3. The Appellant has not been awarded any amount towards
reimbursement of the medical expenses incurred by him, either
by the Commissioner, or by the High Court. The Appellant
underwent hospitalization for a period of 65 days’ for medical
treatment and surgical operations. This Court deems it just and       E
appropriate to award a lump sum amount of Rs. 1,00,000/- towards
hospitalization and medical expenses incurred by the Appellant.
[Paras 13][562 D-E]
                      Case Law Reference
                                                                      F
[2010] 13 SCR 179             relied on               Para 9
[2008] 8 SCR 157              relied on               Para 10
[2009] 14 SCR 990             relied on               Para 10
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9306
of 2019.                                                              G

      From the Judgment and Order dated 06.10.2016 of the High
Court of Karnataka, Dharwad Bench in M.F.A. No. 1569 of 2008 (WC).
     H. Chandra Sekhar, Mrs. Rekha Chandra Sekhar, Karri Venkata
Reddy, Advs. for the Appellant.                                       H
558            SUPREME COURT REPORTS                         [2019] 14 S.C.R.


A          Dr. Meera Agarwal, Ramesh Chandra Mishra, Advs. for the
      Respondent.
            The Judgment of the Court was delivered by
            INDU MALHOTRA, J.
B           1. Leave granted.
           2. The present Civil Appeal has been filed by the Appellant –
      Claimant for enhancement of the compensation awarded to him by the
      Karnataka High Court (Dharwad Bench) under the Workmen’s
      Compensation Act, 1923.
C            3. The Appellant – a driver of heavy vehicles, was employed by
      one Sekar Santharam. On 13.05.2006, while he was driving a truck bearing
      No. MH-08H-0390 loaded with sand from Islampura towards Ratnagiri,
      he lost control of the truck due to an axle cut, and dashed against a rock
      on the side of the road.
D           As a consequence, the truck turtled thrice, and the Appellant
      suffered grievous injuries all over his body. The truck was insured with
      the Respondent – Insurance Company.
            4. The Appellant suffered from serious injuries in his right leg by
      an Anterior Cruciate Ligament and a Collateral Ligament Tear. Plastic
E     surgery was performed on his right leg. This led to his right leg getting
      permanently injured, which resulted in complete disability to continue his
      vocation as a driver of a heavy motor vehicle.
             The Appellant underwent hospitalization for a total period of 65
      days, first in Government Hospital, Ratnagiri between 13.05.2006 and
F     01.06.2006 and thereafter, in KIMS Hospital, Hubli between 17.06.2006
      and 26.08.2006.
            5. The Appellant filed a Claim under the Workmen’s Compensation
      Act, 1923 (“the Act”) before the Labour Officer and Commissioner for
      Workmen’s Compensation, Sub-Division 2 – Belgaum (“Commissioner”)
G     against the Truck Owner and the Insurance Company, praying that an
      amount of Rs. 5,00,000/- be awarded to him as compensation.
            6. The Truck Owner filed his Written Statement, wherein he
      admitted the factum of the accident and the injuries suffered by the
      Appellant. He submitted that he was paying Rs. 4,000/- p.m. and Rs. 30
H     batta per day to the Appellant.
SRI CHANAPPA NAGAPPA MUCHALAGODA v. DIVISIONAL MANAGER,                        559
 NEW INDIA INSURANCE COMPANY LIMITED [INDU MALHOTRA, J.]


        7. Dr. S.D. Patil – a Knee Specialist from Belagavi who had            A
examined the Appellant, deposed that the Appellant can neither stand
for a long period of time, nor can he fold his legs. He was required to use
a walking stick, and could not lift heavy objects. Dr. Patil opined that the
Appellant suffered 37% disability in his whole body, and could not perform
the work of a truck driver any longer.                                         B
       8. The Commissioner assessed the Appellant’s income at Rs. 3,000/
- p.m., and held that he had lost 50% of his earning capacity. Since the
Appellant was 33 years old at the time of the accident, 201.66 was
taken as the relevant factor as per Schedule IV to the Act. Accordingly,
the compensation was computed at Rs. 1,81,494/-. The Respondent –              C
Insurance Company was held liable to pay the amount awarded.
     9. The Appellant filed MFA No. 1569/2008 before the Karnataka
High Court (Dharwad Bench) for enhancement of the compensation
awarded by the Commissioner.
                                                                               D
       The High Court accepted the income of the Appellant at Rs. 4,000/
- p.m. as per the statement made by the employer. Insofar as the
functional disability of the Appellant was concerned, the Court held the
assessment by the Commissioner at 50% was on the lower side, and
increased it to 60%, since the Appellant could no longer earn his livelihood
                                                                               E
as a driver, and could not even stand for a long time.
      The compensation was accordingly enhanced to Rs. 2,90,390/-
with Interest @12% p.a. payable from one month after the date of the
accident.
      10. Aggrieved, the Appellant has filed the present Civil Appeal          F
before this Court for enhancement of the compensation awarded by the
High Court.
      We have heard the learned Counsel appearing for the parties, and
perused the pleadings on record.
                                                                               G
      It is the admitted position that the Appellant can no longer pursue
his vocation as a driver of heavy vehicles. The medical evidence on
record has corroborated his inability to stand for a long period of time, or
even fold his legs. As a consequence, the Appellant has got permanently
incapacitated to pursue his vocation as a driver.
                                                                               H
560                SUPREME COURT REPORTS                      [2019] 14 S.C.R.


A              This Court in Raj Kumar v. Ajay Kumar and Ors.,1 held that:
               “10. Ascertainment of the effect of the permanent disability
               on the actual earning capacity involves three steps. The
               Tribunal has to first ascertain what activities the claimant
               could carry on in spite of the permanent disability and what
B              he could not do as a result of the permanent ability (this is
               also relevant for awarding compensation under the head of
               loss of amenities of life). The second step is to ascertain his
               avocation, profession and nature of work before the accident,
               as also his age. The third step is to find out whether (i) the
               claimant is totally disabled from earning any kind of livelihood,
C              or (ii) whether in spite of the permanent disability, the claimant
               could still effectively carry on the activities and functions,
               which he was earlier carrying on, or (iii) whether he was
               prevented or restricted from discharging his previous activities
               and functions, but could carry on some other or lesser scale
D              of activities and functions so that he continues to earn or can
               continue to earn his livelihood.
               For example, if the left hand of a claimant is amputated, the
               permanent physical or functional disablement may be assessed
               around 60%. If the claimant was a driver or a carpenter, the
E              actual loss of earning capacity may virtually be hundred
               percent, if he is neither able to drive or do carpentry. On the
               other hand, if the claimant was a clerk in government service,
               the loss of his left hand may not result in loss of employment
               and he may still be continued as a clerk as he could perform
               his clerical functions; and in that event the loss of earning
F              capacity will not be 100% as in the case of a driver or
               carpenter, nor 60% which is the actual physical disability,
               but far less. In fact, there may not be any need to award any
               compensation under the head of ‘loss of future earnings’, if
               the claimant continues in government service, though he may
G              be awarded compensation under the head of loss of amenities
               as a consequence of losing his hand. Sometimes the injured
               claimant may be continued in service, but may not found
               suitable for discharging the duties attached to the post or job
               which he was earlier holding, on account of his disability,
      1
H         (2011) 1 SCC 343.
SRI CHANAPPA NAGAPPA MUCHALAGODA v. DIVISIONAL MANAGER,                      561
 NEW INDIA INSURANCE COMPANY LIMITED [INDU MALHOTRA, J.]


         and may therefore be shifted to some other suitable but lesser      A
         post with lesser emoluments, in which case there should be a
         limited award under the head of loss of future earning capacity,
         taking note of the reduced earning capacity. It may be noted
         that when compensation is awarded by treating the loss of
         future earning capacity as 100% (or even anything more than
                                                                             B
         50%), the need to award compensation separately under the
         head of loss of amenities or loss of expectation of life may
         disappear and as a result, only a token or nominal amount
         may have to be awarded under the head of loss of amenities
         or loss of expectation of life, as otherwise there may be a
         duplication in the award of compensation. Be that as it may.”       C
                                                     (emphasis supplied)
       11. In K. Janardhan v. United India Insurance Co. Ltd.,2 this
Court examined the loss of earning capacity in the case of a tanker
driver who had met with an accident, and lost one of his legs due to
                                                                             D
amputation. The Commissioner for Workmen’s Compensation assessed
the functional disability of the tanker driver as 100% and awarded
compensation on that basis. The High Court however, referred to
Schedule I to the Workmen’s Compensation Act, 1923, and held that
loss of a leg on amputation resulted in only 60% loss of earning capacity.
This Court set aside the judgment of the High Court, and held that since     E
the workman could no longer earn his living as a tanker driver due to
loss of one leg, the functional disability had to be assessed as 100%.
       In S. Suresh v. Oriental Insurance Co. Ltd. & Anr.,3 this Court
held that :
                                                                             F
         “8. … We are of the opinion that on account of amputation of
         his right leg below knee, he is rendered unfit for the work of
         a driver, which he was performing at the time of the accident
         resulting in the said disablement. Therefore, he has lost 100%
         of his earning capacity as a lorry driver, more so, when he is
         disqualified from even getting a driving license under the          G
         Motor Vehicles Act.”
                                                     (emphasis supplied)
2
    (2008) 8 SCC 518.
3
    (2010) 13 SCC 777.                                                       H
562                SUPREME COURT REPORTS                      [2019] 14 S.C.R.


A             The aforesaid judgments are instructive for assessing the
      compensation payable to the Appellant in the present case. As a
      consequence of the accident, the Appellant has been incapacitated for
      life, since he can walk only with the help of a walking stick. He has lost
      the ability to work as a driver, as he would be disqualified from even
      getting a driving license. The prospect of securing any other manual
B
      labour job is not possible, since he would require the assistance of a
      person to ensure his mobility and manage his discomfort. As a
      consequence, the functional disability suffered by the Appellant must be
      assessed as 100%.
            12. We affirm the judgment of the High Court on assessing the
C     income of the Appellant at Rs. 4,000/- p.m. as per the evidence of his
      employer. The “functional disability” of the Appellant is assessed as
      100%, and the relevant factor would be 201.66 as per Schedule IV to
      the Act. Consequently, the compensation payable to the Appellant would
      work out to Rs. 4,83,984/- under Section 4 of the Act.
D           13. We find that the Appellant has not been awarded any amount
      towards reimbursement of the medical expenses incurred by him, either
      by the Commissioner, or by the High Court. The Appellant underwent
      hospitalization for a period of 65 days’ for medical treatment and surgical
      operations.
E            We deem it just and appropriate to award a lump sum amount of
      Rs. 1,00,000/- towards hospitalization and medical expenses incurred by
      the Appellant.
            14. The Respondent – Insurance Company is directed to pay the
      enhanced amount of compensation to the Appellant along-with Interest
F     @6% p.a. to be calculated one month from the date of the accident till
      the date of payment within 4 weeks.
            The Civil Appeal stands allowed in the aforesaid terms. All pending
      Applications, if any, are accordingly disposed of.
            Ordered accordingly.
G

      Ankit Gyan                                                   Appeal allowed.




H