In absence of any perversity 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 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 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 100% (i.e., total disablement) (Para 21)
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 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 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. (Para 28)
In the instant case, 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 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 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. 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 of 100%, as assessed by the Commissioner. (Para 31)
SUPREME COURT JUDGMENT
Citation: 2023 STPL(Web) 67 SC
INDRA BAI Vs. ORIENTAL INSURANCE COMPANY LTD. & ANOTHER
Civil appeal no. 4492 of 2023 (Arising out of SLP (Civil) No.138 of 2023)-Decided on 17-7-2023
Click to See Full Text of Judgment: 2023 STPL(WEB) 67 SC
