/2023 INSC 0624/ Civil Appeal @ SLP (C) No.138 of 2023 Page 1 of 16 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4492 OF 20 23 (Arising out of SLP (Civil) No.138 of 2023) INDRA BAI … Appellant Versus ORIENTAL INSURANCE COMPANY LTD. & ANOTHER … Respondents J U D G M E N T MANOJ MISRA, J. 1. Leave granted. 2. This appeal assails the judgment and order of the High Court of Madhya Pradesh at Jabalpur ( in short , “the High Court ”), dated 31.10.2022, in Misc. Appeal No. 2369 of 2003 , whereby the H igh Court partly allowed the appeal preferred by Oriental Insurance Company Ltd. (R -1 herein ) against the order of the Workmen’s Compensation Commissioner/Labour Court, Jabalpur dated 03.09.2003 passed in Case No. 134/2002/WC/Non - Fatal and , thereby , reduced the compen sation awarded to the appellant from Rs. 3,74,364/ - to Rs. 1,49,745.60/ - by treating the permanent disability of the appellant as 40% in place of 100 %. 2023 INSC 624 Civil Appeal @ SLP ( C) No.138 of 2023 Page 2 of 16 FACTS :- 3. The appellant was employed as loading and unloading labour er with M/s. Simplex Co ncre te Company (R -2 herein ) for Truck No. MPF 7567 , which was insured with R -1. On 03.10.2002, while the appellant was loading pol es/pillars in th at truck , the chain pulley broke and the pol es fell on the left arm of the appellant resulting in a compound fr act ure of her left a rm as well as damage to the nerves etc. By claiming that due to the injury , the appellant has suffered permanent total disablement , as there was no grip left in her left arm, compensation was sought from R -2. R -2 claimed itself to be i nsu red wi th R -1 and requ ested the appellant to claim compensation from R -1. As no compensation was paid, the appellant filed petition before the Workmen’s Compensation Commissioner (in short , “the Commissioner ”) under the provisions of the Workmen’s Compen sat ion Act , 1923 , now know n as “the Employee’s Compensation Act, 1923 ” (in short , “the Act ”). 4. Before the Commissioner, R -2 did not dispute the facts set up in the claim petition , rather he claimed the benefi t of insurance cover under a policy issued by R -1. Civil Appeal @ SLP ( C) No.138 of 2023 Page 3 of 16 5. R -1 (the Insur er ), though did not deny existence of an in surance cover in favour of R -2, took usual pleas to defeat the claim which need not be elaborated here , as there is no appeal by R -1 against the order of the High Court fastening liability on it under the insurance policy. 6. During the course of the proceedings before the Commissioner, the appellant examined herself . She proved that , – she was working as a loading /unloading labour er of Truck No. MPF 7 567 , ow ned by R -2 and insured with R -1; on th e fateful day while she was load in g pol es/pillars on the said truck along with other labourers, the chain pulley broke and the pol es fell on her , resulting in severe injuries to her left hand ; she was admitted to the hospital for a period exceeding 1 0 d ays and due to the injurie s sustain ed in th at accident, her left hand has become completely ineffective bec ause of no movement in the fingers of her left hand on account of nerve damage. Various documents including salary certificate (Ex h. P-5), dischar ge car d (Ex h. P-7) and disability cert ifi cate issued by Medical Board (Ex h. P -8) were produced to support her claim . 7. The ap pellant also exam ined Dr. Ravi Shankar Chowdhary, an Orthop aedist and a member of the District Med ical Board (in sho rt , “the Board ”), Civil Appeal @ SLP ( C) No.138 of 2023 Page 4 of 16 who deposed that on 22.10.2002 the a ppe llant gave an application to the Board to ascertain the percentage of her disability . Whereupon, she was examined and it was found that there was a compound fracture in her lef t arm and plates and screws were insta lle d i n her rad ial and ulna bo ne after operation , as a result , the fingers of her left hand had lost movement and the muscles had become thin. The doctor proved that a certificate indicating permanent disability to the extent of 50% with a declaration that sh e i s unfit for labour wo rk has been issued by the Board . 8. N either R -1 nor R -2 produced evidence to rebut the evidence led by the appellant. COMMISSIONER ’S FINDINGS 9. The Commissioner upon consideration of the evidence on record found the appella nt ren dered permanently unf it to do labour work , which sh e was doing at the time of the accident . Accordingly, appellant ’s perman ent disability was assessed as total . 10. Having assessed th at the appellant had incurred per ma nent total disability , on finding th at her age was 30 year s and monthly wages were Rs. 3,0 00/ - at the time of the acci dent , the Civil Appeal @ SLP ( C) No.138 of 2023 Page 5 of 16 Commissioner computed the compensati on payable in terms of Section 4(1)(b) of the Act as below :- “17. The age of applicant was 30 years at the time of the acci dent whos e a ge f act or is 20 7.98 as per Sched ule IV of Section 4 of the Workmen ’s Compensation Act. Multiplying this age factor by 60% of the monthly salary of Rs. 30 00/ - given to the applicant by Rs. 1800/ -, the total compensation amount is Rs. 3,74,364/ -.” 11. Aft er com put ing th e comp ensation , the Commissioner directed as follows: - “18. Therefore, the non -applic ants are ordered to joint ly and severally deposit an amount of Rs. 3,74,364/ - in this Co urt within 45 days from the date of this or der. The non -applicants wi ll be lia ble to depo sit 9% interes t from the d at e of this order for not depositing the compensation amo unt within the stip ulated time. ” 12. Aggrieved by the order of the Commissioner, R -1 preferred appeal, under Section 30 of the Act, before the High Court. FIN DINGS OF THE HIGH COURT 13. The High Court did not disturb the finding of the Commissioner with regard to the entitlement of the appellant for compensation as also with regard to her age and monthly wages . Howe ver, the High Court assessed her pe rma nen t di sab ility as 40% and th ereby reduced the compensation awarded . Civil Appeal @ SLP ( C) No.138 of 2023 Page 6 of 16 14. On the extent of permanent disability , the High Court noticed the certificate provided by the Board and observe d: - “A per usal of the record reveals that claiman t had produced certifi cate from Dis trict Me dical Board, Jabalpur, Ex. P -8 da te d 25.0 2.2003, whereb y it is mentioned that claimant Smt. Indra Bai is an old case of comp ound fracture of left Radi al Ulna with P.O. Plating and screw with contracture of fingers with wrist drop with m ono par esis u pper lim b. Disability was certifi ed at 50% with f urther stipulation that unfit for labour job. ” 15. The High Court also noticed the statement of the d octor who did the medical examination and observed :- “Dr. Ravi Shankar Choudhary was e xamined o n beh alf of th e claima nt, who deposed that it was a case of old co mp ound fra cture of radius and ulna bone, which was fixed through an operation by fixing plate and screw. In cross -examination, this witness admit ted that exce pt for her l eft hand, th ere is n o dis abi lit y i n her bo dy. She can carry out all the works which ca n be carried out by right hand. ” 16. The High Court considered the decision of this Court in National Insurance Co. Ltd. v. Mu basir Ahmed and Another 1 to observe that if there is permanent par tia l d isa bl eme nt on ac count of injuries not sp ecified in Schedule 1 then loss of earning capacity is not a substitute for percentage of physical disablement though i t is one of the factors to 1 (2007) 2 SCC 349 Civil Appeal @ SLP ( C) No.138 of 2023 Page 7 of 16 be taken into account. It also noticed another decision of this Co urt re nd ere d in Ori ental Insurance Co mpany Ltd. v. Mohd. Nasir and Another 2 to observe that the exten t of disability is to be determined having regard to the facts and circumstances of the case but not in an arbitrary and illegal manner. 17. After observing a s a bov e and t aking not ice of a deci sion of t he High Co urt, the High Court found that ends of justice will be met if 40% permanent disablement is taken into consideration for computing the compensation . Consequently, the High Court reduced the compensation awa rde d to th e extent ind ica ted abo ve. 18. Aggri eved by the judgment and order of the High Court, the appellant has preferred Special Leave Petition under Article 136 of the Constitution of India. 19. On this petition, not ices were issued on 13.01.2023 to the resp ond ent s 1 and 2 and it wa s directed that no recovery of any excess amount shall be made from the petitioner. As per the office report dated 05.04.2023 , despite due service on the respondents , no ne has entered appearance on their behalf . 2 (2009) 6 SCC 280 Civil Appeal @ SLP ( C) No.138 of 2023 Page 8 of 16 20. We have heard learn ed cou nsel fo r the appellant and have perused the record. SUBMISSIONS OF THE APPELLANT 21. The learned counse l for the appellant submitted th at , - firstly, appeal under section 30 of the A ct is not to be entertained unless a substantial question o f l aw arises. In a bse nce of a ny perve rs ity in the reasoning qua the extent of disability , it being a question of fact , the High Court erred by delving into that issue . Secondly, the High Court fell in error by assessing the permanent disability as 4 0% ins tea d o f 100% . It was urged t hat tota l disablement , whether tem porary or permanent, of a workman is to be adjudged on the basis of his incapacity to perform the work which he was c apable of performing at the time of the accident resulting in such disablemen t. The appell ant was a loadi ng a nd unloading labour er at the time of the accident. F or the purposes of loading/unloading, use of both arms/hands are required. The evidence brought on record had clearly indicate d that the appellant ’s left ha nd was rendered use les s there fore sh e was de clare d unfit for labour job. In such circumstances, the Commissioner was justified in assessing the perm anent disability as 100% (i.e ., to tal disablement ) whereas the High Court fell in error by assessing it as 40%. In support o f his Civil Appeal @ SLP ( C) No.138 of 2023 Page 9 of 16 submiss ions , t he learn ed co un sel for the appe llant placed reliance on decision s of this Court in Chanap pa Nagappa Muchalagoda v. Divisional Manager, Ne w India Insurance Co . Ltd. 3 and Golla Rajanna and O thers v. Divisional Manager and An other .4 DISCUSSION A N D A NALYSIS 22. We have considered the submissions and have perused the record. 23. There is no dispute between the parties in respect of the following :- (a) that t he appellant was under employment of R -2 as a loading and unloading labour er for Tr uc k No. MPF 756 7, w hich was insured with R - 1 at the time of the accident ; (b) that t he accident occurred during the course of employment ; (c) that at the time of accident , age of the appe llant was 30 years and monthly wages were Rs.3000 ; and (d) that thou gh the Boa rd de clar ed her perm anently disab led to the extent of 50% , but certified that she is ‘unfit’ for labour . 3 (2020) 1 SCC 796 4 (2017) 1 SCC 45 Civil Appeal @ SLP ( C) No.138 of 2023 Page 10 of 16 24. Section 4 (1) (b ) of the Act , at the relevant time, read as under :- "4. Amount of compensation .- (1) Subject to th e provisions of this Act, the amount of compensation shall be as follows, namely: - (a) . … … … … … .. (b) Where permanent total di sablement results from the injury an am ount equal to sixty per cent of the monthly wages of th e inj ure d employee mul tip lied by the relevant factor; Or an amount of one lakh and forty thou sand rup ees, whichever is more ; Provided that the Centr al Go vernment may, by notification in the Of fici al Gazette , from time to time, enhance the amo unt of c omp ens ati on mention ed in clauses (a) and (b). Explan ation I .-- For the purposes of clause (a) and clause (b), "relevant factor", in relation to a workman means the factor specified in the second column of Schedule IV against the entry in the first colu mn of tha t Schedule sp eci fying th e number of years which are the same as the completed years of the age of the workman on his last birthday immediately preceding the date on which the compensation fell due .” 25. “Total disablement ” is defined by section 2(1) (l) as follow s: - “ "tota l disablement" means such disablement, whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of t he accident resulting in such disablement : Provi ded tha t p erm anent tot al disablem ent shall be deemed to result from every injury specified in Part I of Schedule I or from any combination of injuries specified in Part II thereof where the aggregate percen tage of the loss of Civil Appeal @ SLP ( C) No.138 of 2023 Page 11 of 16 earning capacity, as specified in the sa id Part I I aga inst thos e injuries, amounts to one hundred per cent or more ;” 26. In Pratap Nara in Singh Deo v. Srini vas Sabata and Ano ther 5, decided by a four -Judge Bench of this Court , the injured workm an was a carpenter by p ro fession and by lo ss of le ft hand ab ove the elb ow, he was evidently rendered u nfit for the work of carpentry and, therefore , the Commissioner awarded compe nsation by considering permanent disability as total i.e., 100 %. The employer raised an argument tha t the i nj ury did no t res ult in perman ent total d isablement of the workm an and therefore, th e Com missioner commit ted a gross err or of law in taking a view that there was total disablement. In that context, this Co urt held : - “5. The expressi on "total disabl ement" has been def ined in sec tion 2(1) (l) of the Act as follows: “ "total disablement" means such disablement, whether of a temporary or permanent nature, as incapacitates a workman for all work wh ich he was capable of performing at t he time of the accident resulti ng in such dis abl eme nt." 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 c onsidera tion is whether the disable ment 5 (1976) 1 SCC 289 Civil Appeal @ SLP ( C) No.138 of 2023 Page 12 of 16 incapacitated th e respon dent for all work wh ich he was cap abl e o f performin g at the time of the accident. The Commissioner has examined the question and recorded his finding as follows: "The injured workman in this c ase is carpenter by profession....B y loss of the left ha nd above the elbow, he has e vidently been ren der ed unfit fo r the work of carpenter as the work of carpentry cannot be done by one hand only." This is obviously a reasonable and correct finding. Counse l for th e appell ant has not been ab le to assail it on an y ground and it does not req uire to be cor rec ted in this ap peal .” 27. In Chanap pa Nagappa Muchalagoda (supra) , the issue that c ame for consideration before this Court was , whether a workm an driver who , on account of inju ry on his leg , could neither stand fo r a long ti me nor fold his leg s and was r equ ire d to use a walk ing stic k, and could not lift heavy objects , wo uld be ent itled for compensation by taking the disability as 1 00% or less, as per the medical opinion . Notably , in that case , the doctor had certif ied that th e workman had suffered 37% dis abi lit y in his wh ole body, and coul d not perform the work of a truck driver any longer. In that context , it was held : “10. It is the admitted position that the appellant can no longe r pursue his voc ation as a driver of he avy vehi cle s. The medical evidence on re cord has co rroborated 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 vo cation as a driver. Civil Appeal @ SLP ( C) No.138 of 2023 Page 13 of 16 14 . … .. As a conseq uen ce of th e accident, the appella nt has been incap acitated for life, since he can walk only with the help of a walking stick. H e has lost the ability to work as a driver, as he would be disqualified from even getting a driving licens e. Th e prospect of sec uri ng any o ther manual 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 asses sed a s 100 % .” 28. In lig ht of th e aforesaid decisions and the definition of the term “total disablement ” as provided by clause ( l) of su b-secti on (1) of section 2 of the Act, it is the functional disability and not just the physical disabili ty which is the det ermining factor in assess ing whether the claimant ( i.e ., workman) ha s incurred total disablement . Thus, if the disablement incurred in an accident incapacitates a workman f or all work which he was capable of performing at the time of the accident result ing in such disablem ent , the di sablement would be take n as t otal for th e pu rposes of award o f compensation under section 4 (1) (b) of the Act regardless of the injury sustained being not one as specified in Part I of Schedule I of the Ac t. The proviso to c la use (l) of su b-sec tio n (1) of Section 2 of the Act doe s n ot dilute the import of the substantive clause . Rather, it adds to it by specifying ca tegories wherein it shall be deemed that there is permanent total disablement. Civil Appeal @ SLP ( C) No.138 of 2023 Page 14 of 16 29. In M ohd. Nasir (supra) , whic h has been relied by th e Hig h C ourt , the workman was a c lea ner . He had su ffered fracture in the leg . It was held that such injury would not amount to permanent loss of the use of the entire leg. Hence, the disablement was found partial a nd n ot total. 30 . In Mubasir Ahmed (sup ra) , anothe r decision relied by the Hig h C ourt , the m atter did not relate to injuries specified in Schedule I and, as such , it was observed that the case was covered by Section 4(1) (c )(ii) of the Act . However, in that case, th e Court at no stage examine d whether t he disa blem ent in question had in capacitated the workman from performing all work which he was capable of performing at the time of the accident result ing in such disablement. In other words , the Court had no occasion to examine the true import of the term “total disablement ” as def ined b y Section 2 (1) (l) of the Act. Therefore, i n our view, the decision in Mubasir A hmed (supra) was wrongly applied by the High Court . 31 . In the instant case, on the basi s of medical certificate provided by the B oar d, the C ommissioner fo und the appel lan t unfit for la bour inasmuch as there was complete loss of grip in appellant ’s left Civil Appeal @ SLP ( C) No.138 of 2023 Page 15 of 16 hand. Prior to the accid ent, the appellant worked as a loading/ unloading labou rer . Even if she cou ld use her ri ght hand , the cr ux i s w hether s he could be considered sui tab le for perform ing her task as a load ing /unloading labourer . Such a task i s ordinarily perfo rmed by us ing both hands. There is no material on record from which it could be inferr ed that the appellant wa s skilled to pe rfo rm a ny kind of job by use of one h and . It is also not a case where the appellant had the skill to perform her job by us ing machines which the appellant could operate by using one hand . In such circumstances, when the Board had certif ied that the appella nt was rend ered unfit for labour, the re was no pervers ity in the decision of the Commissioner in awarding compensation by tre ating the disability as total on account of her functional disability . Consequently , no ques tion of law , much less a substantial on e, arose fo r consideration by the Hig h C our t so as to allow the appeal in exercise of power under Section 30 of the Act. In our considered view, the H igh Court err ed in partly set ting aside the order of th e Commissio ner and assessing the disability as 40% in stead of 100% , as assessed by th e Com mis sioner. Civil Appeal @ SLP ( C) No.138 of 2023 Page 16 of 16 32. For the reasons above, th e appeal i s allowed . The judgment and order of the H igh Court is s et aside. The order of the C om missioner is restored. There is no o rder as to costs. ..... ............. ... ........ .........J. (J. B. PARDIWALA) ..... ............................... ..J. (MANOJ MISRA) New Delhi; July 17, 2023