1. This appeal has been preferred against the judgment and award dated 01.09.1992 passed by the Workmen Compensation Commissioner, Labour Court, Rajkot in W.C.F. No.78/1990 whereby, the claim application was partly allowed and the respondents, original opponents, have been jointly and severally held liable to pay Rs.34,062/- as compensation to the appellant, original claimant. The original opponents have also been directed to pay 50% of the amount, i.e. Rs.17,031/-, as penalty along with interest at the rate of 6% per annum from 15.01.1989 till the same is deposited.
2. The appellant filed the claim application for the injury sustained by him on 15.01.1989 during the course of employment with respondent no.1 herein. In the accident, the right leg of the appellant was amputed. The learned Commissioner partly allowed the claim application by awarding only 50% of the total claim. Against the said award, the present appeal has been preferred.
3. The main contention raised on behalf of the appellant is that the disability of amputation of right leg sustained by the appellant can be said as 100% disability and incapacity and therefore, computation of compensation has to be done on the basis of loss of 100% earning capacity.
In support of the above submission, learned counsel for the appellant has placed reliance upon a decision of the Apex Court in the case of K.Janardhan v. United India Insurance Co. and another, AIR 2008 S.C. 2384.
4. Heard learned counsel for the appellant and learned counsel for respondent no.2. Though served none appears on behalf of respondent no.1-employer. It is not in dispute that the right leg of the appellant was amputed on account of the injury sustained by him during the course of employment with respondent no.1- employer. In the case of K.Janardhan (supra), it has been held that the serious injury of amputation of right leg sustained by the Tanker driver, who met with an accident with a Tractor, can be said to be 100% disability and incapacity leading to disqualification from even getting the driving licence and therefore, the computation of compensation has to be done on the basis of loss of 100% of the earning capacity.
5. In the instant case, the appellant was a serving as a Truck driver with respondent no.1 and his right leg had to be amputed for the injury sustained by him during the course of employment with respondent no.1. Hence, the principle laid down in Janardhan's case (supra) will squarely apply to the present case. Therefore, the computation of compensation has to be assessed on the basis of loss of 100% of the earning capacity of the appellant, which comes to Rs.34,062/-.
6. For the foregoing reasons, the appeal is allowed. The impugned award passed by the learned Commissioner is modified to the extent that the appellant, original claimant, shall be entitled for additional compensation of Rs.34,062/- [Rupees Thirty four thousand sixty two only] along with interest at the rate of 6% per annum from the date of application till its realization. Consequently, the amount of penalty will also be increased by another Rs.17,031/-, totalling to Rs.34,062/-. The impugned award stands modified to the above extent. The appeal stands disposed of accordingly.
[K. S. JHAVERI, J.]
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