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                                               REPORTABLE

            IN THE SUPREME COURT OF INDIA               CIVIL APPELLATE JURISDICTION

             CIVIL APPEAL NO. 5831 OF 2002

K. Janardhan                                 ......Appellant

               Versus

United India Insurance Co. Ltd. & Anr.       ...Respondents

                     JUDGMENT

HARJIT SINGH BEDI, J.

1.   This appeal is directed against the judgment and order

dated   6th October, 2001 of the learned Single Judge of the

Karnataka      High    Court       whereby    compensation     of

Rs.2,49,576/- awarded by the Commissioner for Workmen’s

Compensation has been reduced to Rs.1,62,224.40/-.             It

arises from the following facts.

2.   The claimant- appellant a tanker driver, while driving his

vehicle from Ayanoor towards Shimoga met with an accident

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with a tractor coming from the opposite side. As a result of

the accident, the appellant suffered serious injuries and also

an amputation of the right leg up to the knee joint.          He

thereupon moved an application before the Commissioner for

Workmen’s Compensation praying that as he was 25 years of

age and earning      Rs. 3,000/- per month and had suffered

100% disability, he was entitled to a sum of Rs. 5 lac by way

of compensation.      The Commissioner in his order dated

18th November, 1999 observed that the claimant was 30 years

of age and the salary as claimed by him was on the higher

side and accordingly determined the same at Rs. 2000/- per

month. The Commissioner also found that as the claimant

had suffered an amputation of his right leg up to the knee, he

was said to have suffered a loss of 100% of his earning

capacity   as   a   driver   and   accordingly   determined   the

compensation payable to him at Rs. 2,49,576/- and interest @

12% p.a. thereon from the date of the accident.       An appeal

was thereafter taken to the High Court by the Insurance

Company - respondent.        The High Court accepted the plea

raised in appeal that as per the Schedule to the Workmen’s

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Compensation Act, the loss of a leg on amputation amounted

to a 60% reduction in the earning capacity and as the doctor

had opined to a 65% disability, this figure was to be accepted

and   accordingly   reduced   the   compensation    as    already

mentioned above. It is in this circumstance, that the aggrieved

claimant has come up to this court.

3.    The learned counsel for the appellant has raised only one

argument during the course of the hearing . He has submitted

that the claimant - appellant being a tanker driver, the loss of

his right leg ipso facto meant a total disablement as

understood in terms of Section 2(1)(e) of the Workmen’s

Compensation Act and as such the appellant was entitled to

have his compensation computed on that basis. In support of

this plea, the learned counsel has placed reliance on Pratap

Narain Singh Deo      vs.   Srinivas Sabata & Anr.       (1976) 1

SCC 289. The cited case pertained to a carpenter who had

suffered an amputation of his left arm from the elbow and this

court held that this amounted to a total disability as the injury

was of such a nature that the claimant had been disabled

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from all work which he was capable of performing at the time

of the accident. It was observed as under:

   5. The expression "total disablement" has been   defined in Section 2(1)(e) of the Act as follows:

       "(1) ‘total disablement’     means such      disablement whether of a temporary or      permanent nature, as incapacitates workman      for all work which he was capable of      performing at the time of the accident      resulting in such 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      Commissioner has examined the question and      recorded his finding as follows:

      "The injured workman in this case is      carpenter by profession .... By loss of the left      hand above the elbow, he has evidently been      rendered unfit for the work of carpenter as the      work of carpentry cannot be done by one hand      only."

    This is obviously a reasonable and correct      finding. Counsel for the appellant has not      been able to assail it on any ground and it      does not require to be corrected in this appeal.      There is also no justification for the other      argument which has been advanced with      reference to Item 3 of Part II of Schedule 1,      because it was not the appellant’s case before      the Commissioner that amputation of the arm

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    was from 8" from tip of acromion to less than 4      below the tip of olecranon. A new case cannot      therefore be allowed to be set up on facts      which have not been admitted or established.

4.   Applying the ratio of the cited judgment to the facts of

the present case we are of the opinion that the appellant

herein has also suffered a 100% disability and incapacity in

earning his keep as a tanker driver as his right leg had been

amputated from the knee.     Additionally, a perusal of Sections

8 and 9 of the Motor Vehicles Act 1988 would show that the

appellant would now be disqualified from even getting a

driving licence.

5.     We therefore allow this appeal, set aside the judgment

of the High Court and restore that of the Commissioner but

with no order as to costs.

                                    ................................. J.                                      (TARUN CHATTERJEE)

                                      .................................J.                                       (HARJIT SINGH BEDI) New Delhi Dated: May 9, 2008