Q. What will be the extent of compensation in case of total disablement?
Ans. It depends upon the incapacity of the victim of an accident, but at the same time unless a workman is totally incapacitated, cent per cent compensation will not be justified as held by the Orissa High Court. In one case, the Karnataka High Court has held that while awarding compensation in an accident case, broader possibilities should be taken into consideration. 1
The Orissa High Court has also held that unless a workman is totally incapacitated, 100% compensation will not be justified. 2 To be more specific, for permanent and total disability the following are some of the instances:-
(i) loss of both hands or a hand and a foot;
(ii) loss of so much vision that the workman can perform no work that requires eye sight;
(ill) severe fatal disfigurement e.g ., acid cases;
(iv) complete deafness.
When the lower limb of the driver is amputated below the knee because of the accident, it will amount to 100% disablement for calculation of compensation being total loss of earning capacity. 3
Two employees being professional drivers will be entitled to accident compensation by treating totally disabled since one of them has lost his eyes and his driving licence cannot be renewed whereas the other's disability has resulted into shortening of his leg due to injury and he would not be able to drive the vehicle for long distance. 4 100% compensation can be awarded despite doctor's recommendation for 40% disability. 5
The Bombay High Court has held that if the accident has incapacitated the driver permanently to drive the vehicle causing 100% loss of his earning capacity, the amount of compensation has to be calculated accordingly as provided under section 4(1)(b) of the Act subject to maximum within Explanation II of section 4 of the Act. 6
- Traffic Manager, New Mangalore Port Trust v. B. Radha , 1998 LLR 726 (Kant HC).
- Prakash Kumar Stapathy v. Rama Chandra Maharana, 1998 LLR 934 (Ori HC).
- Oriental Insurance Co. Ltd. v. Shambhu Nath Yadav , 2007 LLR 1230 (SN): (2008) 1 LLN 139: 2008 Lab IC (NOC) 129 (All HC).
- United India Insurance Co. Ltd. v. Y. Ananda Rao, 2013 LLR (SN) 333: 2012 (135) FLR 959 (APHC).
- National Insurance Co. Ltd., Jabalpur v. Ramkishore Mishra , 2013 LLR 102 (MP HC).
- United India Insurance Co. Ltd . v. Suryakant Damodar Meherkhambe , 2014 LLR 137 (Bom HC).