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CHOLAMANDALAM GENERAL INSURANCE CO. LTD. V/S SURESH CHAND YADAV & OTHERS, decided on Monday, January 9, 2017.
[ In the National Consumer Disputes Redressal Commission (NCDRC), Revision Petition No. 1838 of 2016. ] 09/01/2017
Judge(s) : V.K. JAIN, PRESIDING MEMBER
Advocate(s) : Proxy Counsel N.K. Chauhan. R1, Nazia Hasan, along with In person, R2, R3 Tejaswita.
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    Oral:The complainant / respondent was the beneficiary of a Group Personal Accident Insurance Scheme taken by his employer from the petitioner company. The aforesaid policy provided for payment of compensation to the extent of Rs.2.00 lacs in the event of permanent total disablement of the insured for a period of 12 consecutive months. The total and permanent disablement was defined in the policy to mean that the insured was unable to engage in each and every occupation or employment for compensation or profit for which he was reasonably qualified by education training or experience. The policy also provided for payment of compensation in a case of permanent partial disablement but the benefit payable in that case was only 50%. The bus which the complainant / respondent was driving he being a driver with RSRTC met with an accident. The complainant got seriously injured in the said accident and his one leg had to be amputated. He lodged a claim for payment of Rs.2.00 lacs alleging permanent disablement. The claim having not been paid he approached the concerned District Forum by way of a consumer complaint.2. The complaint was resisted by the petitioner company which paid a sum of Rs.1.00 lac as compensation to the complainant. The complainant however was not satisfied with the quantum of compensation awarded to him. The District Forum vide its order dated 05.2.2015 directed payment of the balance amount of Rs.1.00 lac with interest @ 15% per annum and compensation quantified at Rs.21 000/- for harassment and mental agony etc.3. Being aggrieved by the order passed by the District Forum the petitioner company approached the concerned State Commission by way of an appeal. The State Commission vide its order dated 11.3.2016 dismissed the appeal filed by the petitioner company. Being still aggrieved the petitioner is before this Commission by way of this revision petition.4. The only question which arises for consideration in this case is as to whether the amputation of one leg had resulted in permanent disablement of the complainant or not.5. Section 2(1)(l) of the Workmen’s Compensation Act 1923 defines total disablement to mean such disablement whether of a temporary or permanent nature as incapacitates the workman for all work which he was capable of performing at the time of accident resulting in such disablement. The aforesaid provision came up for consideration of the Hon’ble Supreme Court in Pratap Narain Singh Deo Vs. Srinivas Sabata & Anr. (1976) 1 SCC 289. In that case the employee who was a carpenter had lost is left hand above the elbow and therefore had become unfit for the work of carpenter. It was held by the Commissioner he having been rendered unfit of a work of carpentry which could not be done by one hand alone had suffered total disablement. The findings recorded by the Commissioner were accepted by the Hon’ble Supreme Court. Thus despite use of the words ‘which he was capable of performing at the time of the accident’ the test applied was whether he could despite the injury continue to be engaged in the work which he was performing at the time of the accident.6. In K. Janardhan Vs. United India Insurance Company Ltd. & Anr. (2008) 8 SCC 518 the right leg of the work has to be amputated above the knee. The question which came up for consideration of the Supreme Court was as to whether he had suffered a 100% disability. Referring to its earlier decision in Pratap Narain Singh Deo (supra) it was held that he had suffered a 100% disability and incapacity in earning his keep as a tanker driver. The Hon’ble Supreme Court rejected the contention of the insurance company that amputation amounted to 60% reduction in earning capacity since the doctor had opined disability upto 65%.7. In Mohan Soni Vs. Ram Avtar Tomar & Ors. (2012) 2 SCC 267 the appellant who use to earn his livelihood as a cart puller met with an accident as a result of which his left leg had to be amputated below the know. He filed an application before the Motor Accident Claims Tribunal claiming compensation under Section 166 of the Motor Vehicles Act 1988. In the identity card given to the appellant his disability was shown as 60%. The Tribunal held that his disability could not be above 50% and fixed compensation accordingly. Being aggrieved he approached the High Court by way of an appeal. The compensation was enhanced by the High Court. Being still dissatisfied he approached the Hon’ble Supreme Court by way of a Special Leave. Allowing the appeal Hon’ble Supreme Court inter-alia observed and held as under:“8. …… In the context of loss of future earning any physical disability resulting from an accident has to be judged with reference to the nature of work being performed by the person suffering the disability. This is the basic premise and once that is grasped it clearly follows that the same injury or loss may affect two different persons in different ways. Take the case of a marginal farmer who does his cultivation work himself and ploughs his land with his own two hands; or the puller of a cycle-rickshaw one of the main means of transport in hundreds of small towns all over the country. The loss of one of the legs either to the marginal farmer or the cycle-rickshaw-puller would be the end of the road insofar as their earning capacity is concerned. But in case of a person engaged in some kind of desk work in an office the loss of a leg may not have the same effect. The loss of a leg (or for that matter the loss of any limb) to anyone is bound to have very traumatic effect on one’s personal family or social life but the loss of one of the legs to a person working in the office would not interfere with his work/earning capacity in the same degree as in the case of a marginal farmer or a cycle-rickshaw-puller”.“13. Any scaling down of the compensation should require something more tangible than a hypothetical conjecture that notwithstanding the disability the victim could make up for the loss of income b changing his vocation or aby adopting another means of livelihood. The party advocating for a lower amount of compensation for that reason must plead and show before the Tribunal that the victim enjoyed some legal protection (as in the case of persons covered by the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act 1995) or in case of the vast multitude who earn their livelihood in the unorganized sector of leading cogent evidence that the victim had in fact changed his vocation or the means of his livelihood and by virtue of such change he was deriving a certain income”.8. In Jakir Hussein Vs. Sabir & Ors. (2015) 7 SCC 252 the appellant before the Hon’ble Supreme Court who at the relevant time was working as a driver was driving the tempo which met with an accident causing grievous injuries to him. He sustained grievous and compound fractures in his right arm preventing him from performing his regular work as a driver. He preferred a claim under Section 166 of the Motor Vehicle Act 1988. Being dissatisfied with the quantum of compensation awarded to him by the Tribunal and the High Court he approached the Hon’ble Supreme Court by way of an appeal and contended that he being a driver it was a case of the permanent disablement though the doctor had assessed his permanent disability at 55%. Relying upon its earlier decision in Raj Kumar Vs. Ajay Kumar (2011) 1 SCC 343 where the Hon’ble Supreme Court had given illustration of a driver who had permanent disablement of hand and had held that the loss of future earning capacity in such a case would be virtually hundred percent the Hon’ble Supreme Court held that the disablement in the case of the appellant before it may be treated as hundred percent loss since he will never be able to work again as a driver. The contention of the insurer that the appellant could take up another alternative employment was rejected by the Hon’ble Supreme Court. The aforesaid judgment squarely applies to this case since the respondent / complainant being a driver will never be able to drive the vehicles of his employer or any other vehicle. The disability of the respondent / complainant therefore would be permanent and hundred percent. This is more so when there is no evidence to prove that the respondent / complainant is qualified by education training or experience to obtain another employment where duties of the office can be performed without use of both the feet.9. For the reasons stated herein above I find no ground to interfere with the view taken by the fora below. The revision petition is accordingly dismissed with no order as to costs.