Loss Of Ability To Perform Work Undertaken By Workman Prior To Accident Qualifies As 100% Loss Of Earning Capacity: Bombay High Court

In the case, the applicant-respondent suffered an accident due to which he had to undergo evisceration of the right eye. The Labour Commisisoner under the Employees Compensation Act, 1923 in the impugned judgement and award observed that the applicant suffered 100% permanent disability, which entailed the consequence of incapacitating the applicant from working as a driver.

Before the High Court, the petitioner (Insurance company) contended that the applicant's injury would not amount to permanent total disablement since the applicant has not suffered 100% loss of earning capacity.

To the contrary, the respondent argued that the question cannot be decided bereft of the work which the applicant was performing before he met with the accident. With the loss of right eye, the applicant could not work as a driver any more, and, therefore, the learned Commissioner was justified in awarding the compensation on the premise that the applicant suffered 100% loss of earning capacity.

Physical Disability and Functional Disability

At the outset, the Court in its judgement observed that the distinction between physical disability and functional disability has to be kept in mind while determining whether the applicant has suffered 100% loss of income. It noted:

"The aspect of loss of earning capacity which an injury entails is necessarily required to be determined keeping in view the distinction between the 'physical disability' and 'functional disability'. Whether the applicant is incapacitated to perform the work which he was performing before the accident is the question which the learned Commissioner is required to pose unto himself. If the answer is in the affirmative, despite the physical disability having been assessed at a lower threshold, an interference that the injury resulted in 100% loss of earning capacity can be legitimately sustained." (Para 29)

The judgement relies on the Supreme Court's judgement in Pratap Narain Singh Deo Vs. Srinivas Sabata & Anr (1976) 1 SCC 289 wherein the Court expounded the meaning of "total disablement"- "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 judgement further places reliance on S. Suresh Vs. Oriental Insurance Company Limited and Another (2010) 13 SCC 777 where the Supreme Court had held that a case in which amputation of right leg below knee would render the applicant-driver unfit for the job of a driver resulting in 100% of his earning capacity would be a case of 'total disablement'.

The judgement then places reliance on a judgement of the Bombay High Court in Shaikh Salim Ramzan Vs. Ashok Beniram Kothawade & Anr, where the Court had considered the loss of earning capacity to qualify the extent of disablement:

"Though under the medical terms, the disability is only 30 % but while computing the compensation the loss of earning capacity is to be considered as because of the loss of vision of right eye, the appellant would not be in a position to continue with his avocation as a driver. It is not disputed that the appellant was driver by profession. In view of the fact that he had to surrender his licence, the appellant would not be in a position to drive the vehicle and continue as driver. Going through the definition of partial disablement and the total disablement as is envisaged in Section 2 (g) and (l) respectively, it is evident that the disablement to be considered is with regard to the reduction in the earning capacity of the workman in any employment, in which he was engaged at the time of accident resulting in disablement. In the present case though the medical disablement is about 30 %, still the said disablement is of permanent nature and has rendered appellant unfit for the work of driver…… The expression " incapacitates workman for all work which he was capable of performing at the time of accident resulting in such disablement " would mean the workman having been rendered incapable of performing that " work " which he had undertaken at the time of accident. The appellant being a qualified driver and was performing his duty as a driver, because of the loss of vision of right eye he has been incapacitated for all work as driver, he has been rendered unfit for the work of driver."

Having canvassed the precedents on this question of law, the Court observed that "it is too late to urge that the work that the employee was performing before the accident has no relevance to the determination of the question as to whether the employee is permanently incapacitated to perform the work."

In the present case, the judgement notes, since the respondent was incapacitated to undertake from working as a driver, the Labour Commisisoner was justified in awarding the compensation on the premise that the applicant suffered permanent total disablement and 100% loss of earning capacity.

Case Title: Reliance General Insurance Co Ltd v Keshar Gopal Singh Thakur

Citation: 2022 LiveLaw (Bom) 28

Coram: Justice J Jamdar

Read/Download the Judgement here