Court No. - 26
Case :- FIRST APPEAL FROM ORDER No. - 1496 of 2007
Appellant :- The New India Assurance Company Ltd.
Respondent :- Resham Singh And Another Counsel for Appellant :- S.K. Mehrotra Counsel for Respondent :- C.B. Dubey,A.K. Singh,A.K.S. Baish
Hon'ble Saral Srivastava,J.
Heard counsel for the parties.
The present appeal has been directed against the judgment and order of the Workmen Compensation Commissioner/Assistant Labour Commissioner, Bareilly region in Case No. 116/WCA/2005 whereby the Commissioner has awarded Rs. 3,80,069/- as compensation to the complainant/respondents.
The claim petition was instituted by the claimant no.1 on the ground that he was employed as driver of Tyota Qualis No. 25-/8523 and was getting salary of Rs. 4,000/- and Rs. 30 towards daily diet. On 14.10.2013, on the instruction of the owner, he was driving the vehicle which met with an accident with another vehicle D.C.M U.P-25/8393.
The Commissioner on the basis of evidence came to the conclusion that the claimant has lost one eye and vision of other eye was also affected which resulted into 100% loss of earning capacity of the claimant. The Commissioner further held that the injuries suffered by the claimant falls at serial no.4 in part-I of Schedule-I and thus the complainant had suffered 100% loss earning capacity. Treating the 100% loss earning capacity of the claimant, Commissioner computed the compensation and awarded Rs. 3,80,069/-.
Challenging the quantification of compensation, learned counsel for the appellant urged that the claimant had suffered only loss of vision in one eye and thus, injuries suffered by the claimant falls at serial No. 25 in Par-II of Schedule-I of the Employee Compensation Act, 1923 and, therefore, the loss of earning capacity suffered by the claimant cannot be more than 40%. He submits that the medical certificate filed by the claimant also supported the contention of the appellant wherein 40% disability has been recorded by the Medical Board in the disability certificate.
He further contends that DW-1 Nand Kumar, who has power of attorney of the owner of vehicle Tyota Qualis, stated before the Commissioner that claimant is still continuing in employment with the owner of Tyota Qualis and getting Rs.3,000/- as salary. Thus, the submission is that there is no loss of income suffered by the claimant for the injuries suffered by him in the accident. In this regard, he has placed reliance upon the judgment of Apex Court in the case of Pal Raj Vs. Divisional Controller, NEKRTC 2010 (4) TAC 79 (SC) and judgment of High Court of Karnataka at Bangalore in the case of Shivalinga Shivangowda Patil and Another Vs. Erappa Basappa Bhavihala 2004 ACJ 333.
Per contra, learned counsel for the respondents submits that in the instant case, claimant has lost one eye and also suffered loss of vision in other eye. The claimant has proved on record that he had lost vision in the other eye also and there was no evidence in rebuttal to the evidence of the claimant in respect of the loss of vision of other eye. He submits that injuries suffered by the claimant falls at serial no. 4 in par-I of Schedule-I of the Employees Compensation Act, 1923, thought Tribunal had wrongly mentioned the entry 5 of part-I of Schedule –I. Thus, the submission is that the finding of the Commissioner holding 100% loss of earning capacity is correct in the fact of the present case and is not liable to be interfered with in an appeal.
He further contends that the statement of DW-1, who holds power of attorney of the owner of vehicle Tyota Qualis, cannot be read in evidence to hold that the claimant is still continuing in employment with the owner of vehicle Tyota Qualis. He submits that the claimant has categorically stated that he was not in employment with the owner of vehicle Tyota Qualis and hence, the awarded amount is just and proper in the facts of the present case and the same is not liable to be interfered with by this Court.
I have considered respective submissions of the parties and perused the record.
The Commissioner, on the basis of evidence on record, has recorded a finding that claimant has suffered loss of one eye. He further came to the conclusion that claimant has suffered loss of vision in the other eye also on the basis of evidence led by the parties. In view of the aforesaid finding, the Commissioner repelled the contention of the counsel for the insurance company that the injuries alleged to have been suffered by the claimant would fall at serial No. 25 in part-II of Schedule-I.
So far as the finding of the Commissioner in respect of loss of vision of other eye is concerned, appellant has not led any evidence to demonstrate that the said finding of the Commissioner is perverse and against the record.
In view of the aforesaid fact, the finding of the Commissioner that claimant has suffered loss of one eye and vision of other eye is correct and is a finding of fact. Thus, the finding of the Commissioner holding that injuries suffered by the claimant would fall at serial no.4 of part-I of Schedule II is correct. Hence, the assessment of compensation treating 100% loss of earning capacity suffered by the claimant is just and proper in the facts of the present case.
So far as the judgment of the Apex Court in the case of Pal Raj (supra) relied upon by the counsel for the appellant, the said judgement in the facts of the present case is not applicable for the reason that in the case of Pal Raj, Apex Court was dealing with a fact situation where injuries suffered by the claimant was not scheduled injury and in that context, Apex Court held the functional disability of the claimant to the extent of 35%. In the instant case, injuries suffered by the claimant would fall at serial no. 4 of part-I of Schedule-I for which Schedule-I provides 100% loss of earning capacity.
Appellant has relied upon another judgment of Karnataka High Court in the case of Shivalinga Shivangowda Patil (Supra) where also injuries suffered by the claimant was not a scheduled injury and thus, Full Bench judgement of the Karnataka High Court is not applicable in the facts of the present case.
In respect of the submission of learned counsel for the appellant the testimony of DW-1 Nand Kumar, who has power of attorney of the owner of the vehicle Tyota Qualis, has stated that claimant is still continuing his employment with the owner of the vehicle Toyota Qualis and the claimant has not suffered any loss of income. The said contention of the appellant is misconceived for the reason that the testimony of DW-1 cannot be relied upon to hold that claimant/respondent no.1 is still continuing in employment with the owner of the vehicle Tyota Qualis as the owner of Tyota Qualis did not appear before the Commissioner to prove that claimant/respondent no.1 is still continuing in employment him.
Thus, for the reason given above, no substantial question of law arises in the present appeal which is to be answered by this Court. The appeal lacks merit and is accordingly, dismissed. There shall be no order as to cost.
Order Date :- 28.11.2018 Sattyarth