INDRA BAIversusORIENTAL INSURANCE COMPANY LTD. & ANOTHER

848               [2023] COURT
               SUPREME   10 S.C.R.REPORTS
                                   848 : 2023 INSC 624
                                                   [2023] 10 S.C.R.


A                                INDRA BAI
                                       v.
         ORIENTAL INSURANCE COMPANY LTD. & ANOTHER
                         (Civil Apeal No. 4492 of 2023)
B                               JULY 17, 2023
              [J. B. PARDIWALA AND MANOJ MISRA, JJ.]
             Employee’s Compensation Act, 1923 – s.2 and s.4 – Total
      disablement – Functional Disability – Appellant-employee was
      employed as a loading and unloading labourer with R-2-company
C
      for truck insured with R-1 – While loading poles in a truck, the
      appellant suffered a severe injury on the left arm – There was no
      grip left in her left hand – Workmen’s Compensation Commissioner
      upon consideration of the evidence on record found the appellant
      rendered permanently unfit to do labour work, which she was doing
D     at the time of the accident and awarded total compensation of
      Rs.3,74,364/- – However, the High Court assessed her permanent
      disability as 40% and thereby reduced the compensation awarded
      – On appeal, held: If the disablement incapacitates a workman for
      all work which he was capable of performing at the time of the
      accident, it would be considered as total disablement for the
E
      purposes of award of compensation – When the Board had certified
      that the appellant was rendered unfit for labour, there was no
      perversity in the decision of the Commissioner in awarding
      compensation by treating the disability as total on account of her
      functional disability – Judgment of High court set aside – Order of
F     the Commissioner restored.
            Allowing the appeal, the Court
             HELD: 1. The definition of the term “total disablement”
      as provided by clause (l) of sub-section (1) of section 2 of the
      Employee’s Compensation Act, 1923, it is the functional disability
G     and not just the physical disability which is the determining factor
      in assessing whether the claimant (i.e., workman) has incurred
      total disablement. Thus, if the disablement incurred in an accident
      incapacitates a workman for all work which he was capable of
      performing at the time of the accident resulting in such
H     disablement, the disablement would be taken as total for the
                                      848
  INDRA BAI v. ORIENTAL INSURANCE COMPANY LTD. &                            849
                      ANOTHER

purposes of award of compensation under section 4(1)(b) of the              A
Act regardless of the injury sustained being not one as specified
in Part I of Schedule I of the Act. The proviso to clause (l) of sub-
section (1) of Section 2 of the Act does not dilute the import of
the substantive clause. Rather, it adds to it by specifying categories
wherein it shall be deemed that there is permanent total
                                                                            B
disablement. [Para 28][857-E-G]
       2. On the basis of medical certificate provided by the Board,
the Commissioner found the appellant unfit for labour inasmuch
as there was complete loss of grip in appellant’s left hand. Prior
to the accident, the appellant worked as a loading/unloading
labourer. Even if she could use her right hand, the crux is whether         C
she could be considered suitable for performing her task as a
loading/unloading labourer. Such a task is ordinarily performed
by using both hands. There is no material on record from which it
could be inferred that the appellant was skilled to perform any
kind of job by use of one hand. It is also not a case where the             D
appellant had the skill to perform her job by using machines which
the appellant could operate by using one hand. In such
circumstances, when the Board had certified that the appellant
was rendered unfit for labour, there was no perversity in the
decision of the Commissioner in awarding compensation by
treating the disability as total on account of her functional disability.   E
Consequently, no question of law, much less a substantial one,
arose for consideration by the High Court so as to allow the appeal
in exercise of power under Section 30 of the Act. In our
considered view, the High Court erred in partly setting aside the
order of the Commissioner and assessing the disability as 40%               F
instead of 100%, as assessed by the Commissioner. [Para 31][858-
D-G]
      National Insurance Co. Ltd. v. Mubasir Ahmed and
      Another (2007) 2 SCC 349 : [2007] 2 SCR 117 – held
      inapplicable.                                                         G
      Pratap Narain Singh Deo v. Srinivas Sabata Another
      (1976) 1 SCC 289 : [1976] 2 SCR 872; Chanappa
      Nagappa Muchalagoda v. Divisional Manager, New
      India Insurance Co. Ltd. (2020) 1 SCC 796 : [2019]
      14 SCR 556 – relied on.                                               H
850            SUPREME COURT REPORTS                          [2023] 10 S.C.R.


A           Oriental Insurance Company Ltd v. Mohd. Nasir and
            Another (2009) 6 SCC 280 : [2009] 8 SCR 829; Golla
            Rajanna and Other v. Divisional Manager and Another
            (2017)1 SCC 45 : [2016] 9 SCR 469 – referred to.
                               Case Law Reference
B     [2007] 2 SCR 117                  held inapplicable     Para 16
      [2009] 8 SCR 829                  referred to           Para 16
      [2019] 14 SCR 556                 relied on             Para 21
      [2016] 9 SCR 469                  referred to           Para 21
C
      [1976] 2 SCR 872                  relied on             Para 26
            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4492
      of 2023.
           From the Judgment and Order dated 31.10.2022 of the High Court
D     of Madhya Pradesh, Principal Seat at Jabalpur in MA No. 2369 of 2003.
            Siddhartha Sinha, Nring Chamwibo Zeliang, Tathagat Sharma,
      Aviral Vinayak Jaroliya, Ms. Anu Priya Nisha Minz, Abhishek Singh,
      Ms. Akanksha, Advs. for the Appellant.

            The Judgment of the Court was delivered by
E
            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
F
      31.10.2022, in Misc. Appeal No. 2369 of 2003, whereby the High 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 compensation
G     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 %.
            FACTS:-
            3. The appellant was employed as loading and unloading labourer
      with M/s. Simplex Concrete Company (R-2 herein) for Truck No. MPF
H
  INDRA BAI v. ORIENTAL INSURANCE COMPANY LTD. &                                851
              ANOTHER [MANOJ MISRA, J.]

7567, which was insured with R-1. On 03.10.2002, while the appellant            A
was loading poles/pillars in that truck, the chain pulley broke and the
poles fell on the left arm of the appellant resulting in a compound fracture
of her left arm 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
                                                                                B
R-2. R-2 claimed itself to be insured with R-1 and requested 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
Compensation Act, 1923, now known as “the Employee’s Compensation
Act, 1923" (in short, “the Act”).                                               C
       4. Before the Commissioner, R-2 did not dispute the facts set up
in the claim petition, rather he claimed the benefit of insurance cover
under a policy issued by R-1.
       5. R-1 (the Insurer), though did not deny existence of an insurance
cover in favour of R-2, took usual pleas to defeat the claim which need         D
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 labourer of Truck No. MPF 7567, owned by R-2 and              E
insured with R-1; on the fateful day while she was loading poles/pillars
on the said truck along with other labourers, the chain pulley broke and
the poles fell on her, resulting in severe injuries to her left hand; she was
admitted to the hospital for a period exceeding 10 days and due to the
injuries sustained in that accident, her left hand has become completely        F
ineffective because of no movement in the fingers of her left hand on
account of nerve damage. Various documents including salary certificate
(Exh. P-5), discharge card (Exh. P-7) and disability certificate issued by
Medical Board (Exh. P-8) were produced to support her claim.
       7. The appellant also examined Dr. Ravi Shankar Chowdhary, an            G
Orthopaedist and a member of the District Medical Board (in short,
“the Board”), who deposed that on 22.10.2002 the appellant 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 left arm and plates and screws were installed in her radial
                                                                                H
852             SUPREME COURT REPORTS                          [2023] 10 S.C.R.


A     and ulna bone 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 she is unfit for labour work has been issued by the Board.
             8. Neither R-1 nor R-2 produced evidence to rebut the evidence
B     led by the appellant.
            COMMISSIONER’S FINDINGS
            9. The Commissioner upon consideration of the evidence on record
      found the appellant rendered permanently unfit to do labour work, which
      she was doing at the time of the accident. Accordingly, appellant’s
C     permanent disability was assessed as total.
             10. Having assessed that the appellant had incurred permanent
      total disability, on finding that her age was 30 years and monthly wages
      were Rs.3,000/- at the time of the accident, the Commissioner computed
      the compensation payable in terms of Section 4(1)(b) of the Act as below:-
D
            “17. The age of applicant was 30 years at the time of the accident
            whose age factor is 207.98 as per Schedule IV of Section 4 of
            the Workmen’s Compensation Act. Multiplying this age factor by
            60% of the monthly salary of Rs. 3000/- given to the applicant by
            Rs. 1800/-, the total compensation amount is Rs. 3,74,364/-.”
E
             11. After computing the compensation, the Commissioner directed
      as follows:-
            “18. Therefore, the non-applicants are ordered to jointly and
            severally deposit an amount of Rs.3,74,364/- in this Court within
            45 days from the date of this order. The non-applicants will be
F
            liable to deposit 9% interest from the date of this order for not
            depositing the compensation amount within the stipulated time.”
            12. Aggrieved by the order of the Commissioner, R-1 preferred
      appeal, under Section 30 of the Act, before the High Court.
G           FINDINGS 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. However, the High Court
      assessed her permanent disability as 40% and thereby reduced the
H     compensation awarded.
     INDRA BAI v. ORIENTAL INSURANCE COMPANY LTD. &                               853
                 ANOTHER [MANOJ MISRA, J.]

       14. On the extent of permanent disability, the High Court noticed          A
the certificate provided by the Board and observed:-
         “A perusal of the record reveals that claimant had produced
         certificate from District Medical Board, Jabalpur, Ex. P-8 dated
         25.02.2003, whereby it is mentioned that claimant Smt. Indra Bai
         is an old case of compound fracture of left Radial Ulna with P.O.        B
         Plating and screw with contracture of fingers with wrist drop with
         monoparesis upper limb. Disability was certified at 50% with
         further stipulation that unfit for labour job.”
       15. The High Court also noticed the statement of the doctor who
did the medical examination and observed:-                                        C
         “Dr. Ravi Shankar Choudhary was examined on behalf of the
         claimant, who deposed that it was a case of old compound fracture
         of radius and ulna bone, which was fixed through an operation by
         fixing plate and screw. In cross-examination, this witness admitted
         that except for her left hand, there is no disability in her body. She   D
         can carry out all the works which can be carried out by right
         hand.”
       16. The High Court considered the decision of this Court in
National Insurance Co. Ltd. v. Mubasir Ahmed and Another1 to
observe that if there is permanent partial disablement on account of              E
injuries not specified in Schedule 1 then loss of earning capacity is not a
substitute for percentage of physical disablement though it is one of the
factors to be taken into account. It also noticed another decision of this
Court rendered in Oriental Insurance Company Ltd. v. Mohd. Nasir
and Another2 to observe that the extent of disability is to be determined
having regard to the facts and circumstances of the case but not in an            F
arbitrary and illegal manner.
      17. After observing as above and taking notice of a decision of
the High Court, 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                        G
compensation awarded to the extent indicated above.



1
    (2007) 2 SCC 349
2
    (2007) 2 SCC 349                                                              H
854               SUPREME COURT REPORTS                        [2023] 10 S.C.R.


A           18. Aggrieved 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, notices were issued on 13.01.2023 to the
      respondents 1 and 2 and it was directed that no recovery of any excess
B     amount shall be made from the petitioner. As per the office report dated
      05.04.2023, despite due service on the respondents, none has entered
      appearance on their behalf.
            20. We have heard learned counsel for the appellant and have
      perused the record.
C              SUBMISSIONS OF THE APPELLANT
             21. The learned counsel for the appellant submitted that, - firstly,
      appeal under section 30 of the Act is not to be entertained unless a
      substantial question of law arises. In absence of any perversity in the
      reasoning qua the extent of disability, it being a question of fact, the High
D     Court erred by delving into that issue. Secondly, the High Court fell in
      error by assessing the permanent disability as 40% instead of 100%. It
      was urged that total disablement, whether temporary or permanent, of a
      workman is to be adjudged on the basis of his incapacity to perform the
      work which he was capable of performing at the time of the accident
E     resulting in such disablement. The appellant was a loading and unloading
      labourer at the time of the accident. For the purposes of loading/unloading,
      use of both arms/hands are required. The evidence brought on record
      had clearly indicated that the appellant’s left hand was rendered useless
      therefore she was declared unfit for labour job. In such circumstances,
      the Commissioner was justified in assessing the permanent disability as
F     100% (i.e., total disablement) whereas the High Court fell in error by
      assessing it as 40%. In support of his submissions, the learned counsel
      for the appellant placed reliance on decisions of this Court in Chanappa
      Nagappa Muchalagoda v. Divisional Manager, New India
      Insurance Co. Ltd.3 and Golla Rajanna and Others v. Divisional
G     Manager and Another.4
               DISCUSSION AND ANALYSIS
            22. We have considered the submissions and have perused the
      record.
      3
          (2020) 1 SCC 796
H     4
          (2017) 1 SCC 45
  INDRA BAI v. ORIENTAL INSURANCE COMPANY LTD. &                              855
              ANOTHER [MANOJ MISRA, J.]

       23. There is no dispute between the parties in respect of the          A
following:-
      (a) that the appellant was under employment of R-2 as a loading
      and unloading labourer for Truck No. MPF 7567, which was
      insured with R- 1 at the time of the accident;
      (b) that the accident occurred during the course of employment;         B

      (c) that at the time of accident, age of the appellant was 30 years
      and monthly wages were Rs.3000; and
      (d) that though the Board declared her permanently disabled to
      the extent of 50%, but certified that she is ‘unfit’ for labour.        C
      24. Section 4(1)(b) of the Act, at the relevant time, read as under:-
      “4. Amount of compensation.- (1) Subject to the provisions of
      this Act, the amount of compensation shall be as follows, namely:-

                                                                              D




                                                                              E


      Provided that the Central Government may, by notification in the
Official Gazette, from time to time, enhance the amount of compensation
mentioned in clauses (a) and (b).
                                                                              F
       Explanation 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 column
of that Schedule specifying the 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.”           G
      25. “Total disablement” is defined by section 2(1)(l) as follows:-
      “ “total 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 the
      accident resulting in such disablement:                                 H
856               SUPREME COURT REPORTS                       [2023] 10 S.C.R.


A                    Provided that permanent total disablement 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 percentage of the loss of earning capacity, as specified
             in the said Part II against those injuries, amounts to one hundred
             per cent or more;”
B
             26. In Pratap Narain Singh Deo v. Srinivas Sabata and
      Another5, decided by a four-Judge Bench of this Court, the injured
      workman was a carpenter by profession and by loss of left hand above
      the elbow, he was evidently rendered unfit for the work of carpentry
      and, therefore, the Commissioner awarded compensation by considering
C     permanent disability as total i.e., 100%. The employer raised an argument
      that the injury did not result in permanent total disablement of the workman
      and therefore, the Commissioner committed a gross error of law in taking
      a view that there was total disablement. In that context, this Court held:-
             “5. The expression “total disablement” has been defined in section
D            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 which he was capable of performing at
                  the time of the accident resulting in such disablement.”
E            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:
F
                  “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
G            the appellant has not been able to assail it on any ground and it
             does not require to be corrected in this appeal.”
             27. In Chanappa Nagappa Muchalagoda (supra), the issue
      that came for consideration before this Court was, whether a workman
      5
H         (1976) 1 SCC 289
  INDRA BAI v. ORIENTAL INSURANCE COMPANY LTD. &                                  857
              ANOTHER [MANOJ MISRA, J.]

driver who, on account of injury on his leg, could neither stand for a long       A
time nor fold his legs and was required to use a walking stick, and could
not lift heavy objects, would be entitled for compensation by taking the
disability as 100% or less, as per the medical opinion. Notably, in that
case, the doctor had certified that the workman had suffered 37% disability
in his whole body, and could not perform the work of a truck driver any
                                                                                  B
longer. In that context, it was held:
        “10. 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        C
        as a driver.
        14. ….. 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            D
        prospect of securing any other 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 assessed
        as 100%.”
                                                                                  E
        28. In light of the aforesaid decisions and the definition of the
term “total disablement” as provided by clause (l) of sub-section (1) of
section 2 of the Act, it is the functional disability and not just the physical
disability which is the determining factor in assessing whether the claimant
(i.e., workman) has incurred total disablement. Thus, if the disablement
incurred in an accident incapacitates a workman for all work which he             F
was capable of performing at the time of the accident resulting in such
disablement, the disablement would be taken as total for the purposes
of award of 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 Act. The proviso to clause (l) of sub-section (1) of Section 2 of the
                                                                                  G
Act does not dilute the import of the substantive clause. Rather, it adds
to it by specifying categories wherein it shall be deemed that there is
permanent total disablement.
        29. In Mohd. Nasir (supra), which has been relied by the High
Court, the workman was a cleaner. He had suffered fracture in the leg.
                                                                                  H
858              SUPREME COURT REPORTS                         [2023] 10 S.C.R.


A     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 and not
      total.
              30. In Mubasir Ahmed (supra), another decision relied by the
      High Court, the matter did not relate to injuries specified in Schedule I
B     and, as such, it was observed that the case was covered by Section
      4(1)(c)(ii) of the Act. However, in that case, the Court at no stage
      examined whether the disablement in question had incapacitated the
      workman from performing all work which he was capable of performing
      at the time of the accident resulting in such disablement. In other words,
      the Court had no occasion to examine the true import of the term “total
C     disablement” as defined by Section 2(1)(l) of the Act. Therefore, in our
      view, the decision in Mubasir Ahmed (supra) was wrongly applied by
      the High Court.
              31. In the instant case, on the basis of medical certificate provided
      by the Board, the Commissioner found the appellant unfit for labour
D     inasmuch as there was complete loss of grip in appellant’s left hand.
      Prior to the accident, the appellant worked as a loading/unloading
      labourer. Even if she could use her right hand, the crux is whether she
      could be considered suitable for performing her task as a loading/unloading
      labourer. Such a task is ordinarily performed by using both hands. There
      is no material on record from which it could be inferred that the appellant
E     was skilled to perform any kind of job by use of one hand. It is also not
      a case where the appellant had the skill to perform her job by using
      machines which the appellant could operate by using one hand. In such
      circumstances, when the Board had certified that the appellant was
      rendered unfit for labour, there was no perversity in the decision of the
F     Commissioner in awarding compensation by treating the disability as total
      on account of her functional disability. Consequently, no question of law,
      much less a substantial one, arose for consideration by the High Court so
      as to allow the appeal in exercise of power under Section 30 of the Act.
      In our considered view, the High Court erred in partly setting aside the
      order of the Commissioner and assessing the disability as 40% instead
G     of 100%, as assessed by the Commissioner.
              32. For the reasons above, the appeal is allowed. The judgment
      and order of the High Court is set aside. The order of the Commissioner
      is restored. There is no order as to costs.

H     Ankit Gyan                                                     Appeal allowed.
      (Assisted by : Aarsh Choudhary, LCRA)