Labour laws providing for compensatory relief by way of social security generally have precise methods for computing benefits. The benefits accrue when various conditions specified in the statutory provisions are satisfied. For example, workmen are liable to claim compensation for injuries suffered during the course of their employment provided the injuries are of such nature as specified in different parts of the schedule appended to the Workmen`s Compensation Act, 1923  (WCA).

However, all possible types of injuries cannot be provided for under the Act. Many times, injuries that do not find place in such schedules occur, leading to total or partial disablement, temporary or permanent. A question arises as to whether such injuries can be compensated for under the present legal provisions or not.

In Pamarthisubba Rao vs H Ramarao & Anr. [2008 II CLR 531], the workman was a lorry driver. He met with an accident in which his right leg was crushed. Subsequently, it had to be amputated up to the knee. The case was referred to the Commissioner for Workmen`s Compensation, under the WCA, who held that the workman had suffered permanent partial disability and awarded compensation provided for the same, as per the WCA.

The workman challenged this order in the High Court. He argued that although his injury is assessed as 50 per cent permanent partial disability by the orthopaedic surgeon, it should be treated as 100 per cent disability since his right leg has been amputated up to the knee and he cannot drive any vehicle ever. Compensation, therefore, should be awarded accordingly.

The definition of total disablement given in the ACT u/s 2 (1) (I) specifies that disablement is to be considered total when it incapacitates a workman from doing all work that he was capable of performing at the time of accident.

Permanent total disablement is deemed to follow from every injury specified in Part I of Schedule I or where the aggregate percentage of loss of earnings capacity due to the combination of injuries specified in Part II of the same schedule amount to 100 per cent.

The nature of injury to the workman is neither specified in Part I or Part II of the Schedule. How then can an assessment of the loss of ability to earn be made? The normal procedure in such cases is to take the opinion of a medical practitioner, who can certify loss of earning capacity.

In the present case, an orthopaedic surgeon had certified it as leading to 50 per cent permanent partial disability whereas the workman claimed that it actually resulted in 100 per cent loss of his earning capacity as a driver.

The Hon`ble division bench gave a beneficial interpretation of the permanent total disability under the Act, and held that in spite of the fact that the injuries are not of the nature listed in Part I or Part II of Schedule I, if the result of the injuries is 100 per cent loss of working capacity, it had to be treated as 100 per cent disability and compensation has to be computed accordingly.

In a different case relating to disability, the High Court of Madras held that the term disability under section 47 of the Persons with Disability (Equal opportunities, Protection of Rights and Full Participation) Act 1995 (Disability Act) encompasses not only those disabilities defined in S2 (i) of the said Act but also those which disabled a person from performing work, which he could perform immediately prior to the acquisition of such disability.

In G.M., TN State Transport Corporation Ltd., Kumbakonam, vs Udayasuriyan, (2008 ii CLR 705), the respondent, was working as a driver in a private transport corporation. From 1985, he joined the appellant corporation with continuity of service and the same service conditions.

He was sent for an eye check-up in which the medical board opined that he was unfit to drive due to colour blindness. Based on this report, he was discharged from service on 15 June 2004. The counsel for the corporation argued that the benefit of alternative employment u/s S.47 of the Disability Act will be available to a person if the disability is acquired during the course of employment, whereas, in the present case, it seems to be congenital and not acquired during the course of employment.

The Hon`ble High Court rejected the argument of the corporation and held that in order that an employee becomes eligible for the benefit of S 47, which entitles him/her to alternative employment within the organisation, the test is whether an employee, after acquiring the disability, has become unsuitable for the post he was holding earlier. If the answer to this question is in the affirmative, the employee could be shifted to some other post with the same pay scale and benefits. If it is not possible to adjust such employee against any such post, he may be kept in a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.

The Court held that the benefits of benevolent legislation could not be denied on the grounds of mere technicalities. The term disability, used in S. 47 of the present Act, encompasses those contained in S. 2

(i) as well as those which disabled a person from performing work that he held prior to acquisition to such disability.

Both these judgments protect those with disability and those who acquire disablement during the course of employment from vulnerability in the employment situation.