Hon'ble Yogesh Chandra Gupta,J.
Order on Appeal It is submitted by Shri Manish Kumar Nigam, learned counsel for the appellant, that as per the disability certificate, the claimant/respondent No.1 sustained Scheduled Injuries, and the extent of disablement was 50%. Such injuries would fall either under Item 19 or Item 20 of Part II of Schedule I to the Workmen's Compensation Act, 1923, and the percentage of loss of earning capacity ought to have been computed as provided in the said Schedule. However, the Workmen's Compensation Commissioner, the submission proceeds, assumed without any basis that there was loss of earning capacity to the extent of 100% which was contrary to the provisions contained in Item (i) of clause (c) of sub-section (1) of Section 4 of the Workmen's Compensation Act, 1923 read with Schedule I to the said Act.
Sri Manish Kumar Nigam, learned counsel for the appellant, has placed reliance on a decision of the Supreme Court in the case of Oriental Insurance Company Ltd. Vs. Mohd. Nasir and another, 2009(3)TAC 598(SC) (Paragraph Nos. 11 and 12) Having considered the submissions made by Sri Manish Kumar Nigam, learned counsel for the appellant, we are prima-facie satisfied that the following Substantial Question of Law is involved in the present Appeal:
Whether on the facts and in the circumstances of the case and keeping in view the nature of the injuries sustained by the claimant-respondent No.1 and also keeping in view the provisions contained in Item (i) of clause (c) of sub-section (1) of Section 4 of the Workmen's Compensation Act, 1923 read with Schedule I to the said Act, the Workmen's Compensation Commissioner was justified in law in assessing the compensation on the assumption that the loss of earning capacity was to the extent of 100%?
Admit.
Issue notice.
Notice will be issued to the respondents by Registered Post A.D. fixing the next date fixed in the matter.
Order on Stay Application Issue notice.
Notice will be issued to the respondents by Registered Post A.D. fixing the next date fixed in the matter.
Requisite steps will be taken within three weeks.
Heard on the question of grant of interim relief.
The amount awarded under the impugned judgment and order dated 09.05.2011 has already been deposited by the appellant as is evident from the Certificate filed with the Memorandum of Appeal.
Having regard to the facts and circumstances of the case and having considered the submissions made by Shri Manish Kumar Nigam, learned counsel for the appellant, it is directed that the operation of the impugned Judgment and Order dated 09.05.2011 will remain stayed until further orders of the Court subject to the following terms and conditions:
(1) 50% of the amount deposited, as mentioned above, will be paid to the claimant-respondent No.1 without furnishing any security.
(2) Balance 50% of the amount of the deposit, as mentioned above, will be invested in maximum interest bearing Fixed Deposit in a Nationalized Bank, renewable from time to time, in the name of the claimant-respondent no.1.
The amount invested in Fixed Deposit as per the directions given above, will not be permitted to be withdrawn by the claimant-respondent no.1 without leave of this Court. However, 50% of the periodical interest accruing on such Fixed Deposit will be permitted to be withdrawn by the claimant-respondent no.1, as and when the same accrues. Balance 50% of the periodical interest accruing on such Fixed Deposit, will continue to be reinvested in such Fixed Deposit.
Counter Affidavit and Rejoinder Affidavit may be exchanged between the parties by the next date fixed in the matter.
List on 30th November, 2011.
Order Date :- 13.7.2011 NS