NATIONAL INSURANCE CO LTD Vs. T T MAMMU

JUDGEMENT

(1.) This appeal under the Workmen's Compensation Act, 1923 is by the insurer. Valid insurance cover for a lorry belonging to the second respondent is admitted. The first respondent claimed that he met with an accident which falls under the provisions of the Workmen's Compensation Act, 1923 (hereinafter, the 'Act'). His allegation was that while he was unloading goods from the second respondent's lorry, a wooden plank of that lorry gave way injuring him, ultimately leading to paralysis. The testimony of the second respondent's representative clinchingly established the master and servant relationship between the respondents. The material evidence on record showed that the first respondent suffered the injuries, underwent treatment and that the competent Medical Board certified that he has 50% physical disability and that he suffers 100% occupational disability, having regard to the fact that he is a headload worker. The Commissioner passed an award taking the disability of 100%. Before us, the insurer raises two points. Firstly, it is argued that there is no relationship between the respondents, which could be termed as one of a master and servant, to enable the first respondent being treated as a workman for the purpose of the Act. The next argument is that the Medical Board acted illegally in fixing the professional disability at 100% and the Commissioner ought to have accepted the disability as only 50%.

(2.) As regards the first among the arguments, section 2(1) (n) read with Schedule II, entry (xxxvii) provides that a person employed in the handling or transport of goods which have been loaded in any mechanically propelled vehicle is a workman for the purpose of the Act. Obviously, the injured was handling the goods which were loaded in the vehicle of the second respondent. There is no dispute that it was a mechanically propelled one. The argument of the Learned Counsel for the first respondent, in this regard, is only to be accepted. Under such circumstances, we do not find any way to reverse the finding of the Commissioner rendered on this issue.

(3.) Now, on the issue as to whether 100% could have been treated as the percentage of disability, it needs to be noted, on facts, that the injured was around 48 years of age when he suffered the incident. Temporary partial disability, temporary total disability, permanent partial disability and permanent total disability are different concepts and variants relating to the measure of physical disability, having regard to various relevant yardsticks. Professional disability or occupational disability is a measure of the loss of earning power that has to be determined with reference to the peculiar facts and circumstances of each case as emanating out, on the basis of the evidence and on the totality of the facts and circumstances, going by the common course of human conduct. This varies from case to case. There cannot be any principle of law as to percentage, which could be applied in such matteRs. What would be cent percent occupational disability in one case could be a flee-bite or 5% to 10% occupational disability in a different fact situation, depending on various factors in relation to the person injured. The age of the person when he suffered the injury, his ability for other avocations, the period for which he could be expected to have continued with his avocation, had he not been injured, his educational status, etc. are among the relevant factoRs. Therefore, there cannot be any universally acceptable doctrine to provide a measure of occupational disability or professional disability. Varied relevant factors for determining the occupational disability could be easily conceived and deciphered in the common course of employment. That would depend, as already noted, upon the individual who is injured, that person's age, the avocation which was being done by that person at the time of suffering the injury, the ability of that person to carry on with the same avocation or to change over to any other avocation etc. All these will have to be decided, taking a pragmatic view of the totality of the facts and materials on record, as also, reasonable inferences and inescapable conclusions deducible on the wholesome, just and reasonable evaluation of all relevant aspects.