K. JANARDHANversusUNITED INDIA INSURANCE CO. LTD. & ANR.

                                  [2008] 8 S.C.R. 157
         )



'                                 K. JANARDHAN
                                          II.
                   UNITED INDIA INSURANCE CO. LTD. & ANR.
                         (Civil Appeal No.5831 Of 2002)
                                                                           A




                                    MAY 9, 2008
                                                                           B
    ..       [TARUN CHATTERJEE AND HARJIT SINGH BEDI, JJ.]


                    Workmen's Compensation Act - s.2(1)(e) - Compensa-
             tion - For disablement incapacitating the victim for work which
             he was capable of performing at the time of accident - Appel- c
             /ant, tanker driver, met with accident- His right leg amputated
             from the knee - Appellant was 30 years of age at the time of
             accident and earning Rs.20001- per month - Claim for com-
             pensation - Held: Appellant suffered 100% disability and in-
             capacity in earning his keep as a tanker driver - He became D
             disqualified from e11en getting a driving licence - In facts and
             circumstances of the case, the Commissioner for Workmen's
             Compensation was right in determining the compensation
             payable to Appellant at Rs.2.5 lakhs with interest@ 12% p.a.
             from the date of accident - Motor Vehicles Act, 1988 - ss. 8 E
             and 9..
                  Appellant, a tanker driver, while driving his vehicle
             met with an accident with a tractor coming from the op-
             posite side. As a result, the Appellant suffered serious in-
             juries and also an amputation of the right leg up to the F
             knee joint. He thereupon moved an application before the
             Commissioner for Workmen's Compensation praying for
             grant of Rs. 5 lakhs by way of compensation. The Com-
             missioner observed that the claimant was 30 years of age
             and determined his salary at Rs. 2000/- per month. The G
    '        Commissioner also found that as the claimant had suf-
             fered an amputation of his right leg up to the knee, he had
             suffered a loss of 100% of his earning capacity as a driver
             and accordingly determined the compensation payable
                                         . 157                            H
    158      SUPREME COURT REPORTS                 (2008) 8 S.C.R.


A to him at about Rs. 2.50 lakhs with interest @ 12% p.a.
  frQm the date of the accident. An appeal was thereafter
  taken to the High Court by the Respondent-Insurance
  Company. The High Court accepted the plea raised in
  appeal that as per the Schedule to the Workmen's Com-
B pensation 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 accordingly reduced the compensation
  to about Rs.1.62 lakhs.
C         In appeal to this Court, the contention raised by Ap-
    pellant is that he being a tanker driver, the loss of his right
    leg ipso facto meant a total disablement as understood in
    terms of Section 2(1)(e) of the Workmen's Compensation
    Act and as such he was entitled to have his compensa-
0   tion computed on that basis.
          Allowing the appeal, the Court
       HELD: 1. The Appellant suffered 100% disability and
  incapacity in earning his keep as a tanker driver as his right
E leg had been amputated from the knee. Additionally, a pe-
  rusal of Sections 8 and 9 of the Motor Vehicles Act 1988
  would show that the Appellant would now be disqualified .
  from eveh getting a driving licence. [Para 5) [161-C,D]
       1;2. The judgment of the High Court is set aside and
F that of the Commissioner restored. [Para 6) [161-D]
         Pratap Narain Singh Dea vs. Srinivas Sabata & Anr
    (1$76) 1 sec 289 - relied on.
         CIVILAPPELLATE JURISDICTION: Civil Appeal No. 5831
G   of 2002

         From the final Judgment and Order dated 6.10.2001 of the
    High Court of Karnataka at Bangalore in MFA No. 484 of 2000
         R.S. Hegde, Chandra Prakash, Ashwani Garg and P.P.
H   Singh for the Appellant.
            K. JANARDHAN v. UNITED INDIA INSURANCE               159
             CO. LTD. & ANR. [HARJIT SINGH BEDI, J.]

         The Judgment of the Court was delivered by                    A
         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."
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
F         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
G         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
H
         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