SURESH BABU Vs. SURESH. M.

JUDGEMENT

(1.) Shri John Joseph Vettikkad takes notice for the second respondent. There is no appearance for the first respondent. We heard the learned Counsel appearing for the parties on both sides and are disposing the MFA.

(2.) The grievance of the appellant is over the percentage of disability reckoned by the Employees Compensation Commissioner for determining the compensation to him. The appellant was a bus conductor. He sustained severe injuries during the course of his employment, on 01.10.1991, when the bus lost control and hit on a tree. As per the disability certificate, Ext.X1 issued by the Medical Board, the occupational disability of appellant was assessed as 90%. Accordingly, the Employees Compensation Commissioner awarded a sum of Rs.7,18,373/- reckoning disability at 90% alone. The contention of the appellant is that he is completely bedridden and incurred cent percent functional disability. He is unable to carry out any kind of work. Therefore, the Compensation Commissioner ought to have reckoned his disability as 100% for assessing the compensation.

(3.) From the records available we find that the appellant, who sustained very severe injuries, though his disability is assessed at 90% only, became totally incapacitated to carry out any work which would show that the functional disability incurred by him is 100%. Our conclusion is supported by the judgment of the Apex Court in Pratap Narain Singh Deo v. Srinivas Sabata [(1976) 1 SCC 289] where the case of a carpenter who suffered amputation of his left arm below elbow during the course of employment came up for consideration. The Commissioner for Workmen Compensation, found that he suffered total disablement and had been disabled from all work which he was capable of performing at the time of the accident. Hence he awarded compensation assessing the disability as 100%. The High Court of Orissa dismissed the appeal. The employer approached the apex court contending that the disablement was only partial. Referring to the definition of total disablement under Section 2(1)(1) of Workmen's Compensation Act, 1923, according to which it means "such disablement, whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement", apex court held that the assessment made by the Commissioner was correct and dismissed the appeal.