Jammu & Kashmir High Court
Oriental Insurance Co. Ltd vs Sham Lal And Others on 1 August, 2023
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
Sr. No. 1
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
MA No. 19/2014
IA No. 30/2014
Oriental Insurance Co. Ltd. .....Appellant(s)/Petitioner(s)
Through: Mr. Amrit Sarin, Advocate.
Vs
Sham Lal and others ..... Respondent(s)
Through: Mr. Rajiv K Sharma, Advocate.
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
ORDER (ORAL)
1. The present appeal arises out of award dated 25.11.2013 passed by the Commissioner, Employees Compensation Act, 1923 in case titled "Sham Lal V/s Gurvinder Singh and another" whereby the appellant-Insurance Company has been directed to pay an amount of Rs. 8, 27,652/- inclusive of interest to the respondent No. 1.
2. The sole ground on which the award has been impugned by the appellant-
Insurance Company is that despite the medical evidence on record with regard to disability suffered by the respondent No. 1 to the extent of 52 percent, the Commissioner has passed the award after returning a finding that the earning capacity of the respondent No. 1 has been reduced by 100 percent.
3. Mr. Amrit Sarin, learned counsel for the appellant-Insurance Company vehemently argued that the Commissioner was not correct in considering the loss of earning capacity of the respondent No. 1 to the extent of 100 2 MA No. 19/2014 IA No. 30/2014 percent, as the disability of the respondent No. 1 was assessed by Dr. I. K. Wangoo, Sr. Orthopedic Surgeon to the extent of 10 percent and thereafter to the extent of 52 percent by other doctor and by considering the disability suffered by the respondent No. 1 to the extent of 52 percent, the Commissioner could not have awarded the compensation by returning a finding that the earning capacity of the respondent No. 1 has been reduced by 100 percent.
4. Per contra, Mr. Rajeev K Sharma, learned counsel for the respondent No. 1 argued that as the respondent No. 1 was a driver by profession and because of disability suffered by the respondent No. 1 due to accident, he has been deprived of his livelihood, as such, there is nothing wrong in the finding returned by the Commissioner that the respondent No. 1 has suffered loss of earning capacity to the extent of 100 percent.
5. Heard and perused the record.
6. Since the appeal has been filed under Section 30 of the Employees Compensation Act, 1923 and the appeal can be entertained only provided it raises substantial questions of law. The appellant has proposed the following questions of law:
(i) Whether under the Employees Compensation Act, compensation to the victim of an accident, can be awarded by the Commissioner, in violation of the provisions of Section 4(c) (ii) of the Employees Compensation Act, 1923?
(ii) Whether it was not obligatory for the concerned Doctor to access and determine the financial loss to be suffered by the injured vis-à- 3 MA No. 19/2014 IA No. 30/2014
vis the injuries sustained by the victim, while issuing Disability Certificate?
(iii) Whether the authority under the Employees Compensation Act, 1923 can suo-motto access the compensation and the financial loss to be suffered by the injured, without adhering to the provisions of Section 4(c) (ii) of the Employees Compensation Act, 1923 and treat the Permanent disability of the injured as 100% in contravention of the opinions of experts who observed that the disability of the injured is ranging from 10% to 52% only?
(iv) Whether liability for payment of interest can be fastened on the insurer appellant company despite delay on the part of claimant himself in contesting the claim also and on account of inaction on part of owner in settlement of claim, after the alleged occurrence?
7. Out of the above mentioned proposed substantial questions of law, proposed substantial question of law mentioned at serial No. iii is treated as substantial question of law and the same is reproduced as under:
(iii) Whether the authority under the Employees Compensation Act, 1923 can suo-motto access the compensation and the financial loss to be suffered by the injured, without adhering to the provisions of Section 4(c) (ii) of the Employees Compensation Act, 1923 and treat the Permanent disability of the injured as 100% in contravention of the opinions of experts who observed that the disability of the injured is ranging from 10% to 52% only?
8. A perusal of the record reveals that the respondent No. 1 met with an accident on 28.08.2007 when he was driving a vehicle bearing registration 4 MA No. 19/2014 IA No. 30/2014 No. JK02AA-2685 and was coming towards Jammu. As a result of the accident he suffered an injury in his left leg. In his statement he had stated that because of the injury suffered by him in the accident, he cannot drive a vehicle.
9. Dr. I. K. Wangoo, senior Orthopedic Surgeon was also examined and he stated that the disability certificate had been signed by him and as per the certificate the victim suffered permanent disability of 10 percent. He simultaneously stated that with this type of disability the victim cannot walk without support and also cannot drive any type of vehicle. A perusal of the record further depicts that the respondent No. 1 produced another disability certificate dated 23.04.2012 issued in his favour and as per the said disability certificate, the respondent No. 1 was suffering from 55 percent disability. Thereafter, in view of the piquant situation due to two disability certificates, the Commissioner decided to seek opinion from the Principal Government Medical College in respect of the disability of the respondent No. 1. Thereafter, a fresh disability certificate was issued and as per that certificate respondent No. 1 was suffering from 52 percent disability. Dr. Anil Kumar Dhar who was one of the Members of the Board constituted to reassess the rate of disability suffered by the respondent No.1 stated that disability mentioned was with respect to the affected limb of the victim and not with regard to whole of the body. Dr. Abdul Gani was also examined and he also proved the disability certificate and as per his opinion, the respondent No. 1 was suffering from 52 percent disability. He further stated that the respondent No. 1 cannot walk properly and would not be able to drive a vehicle. 5 MA No. 19/2014 IA No. 30/2014
10. The Commissioner after examining the evidence returned a finding that the respondent No. 1 was working as a driver and because of the accident he is unable to work, so his earning capacity has been reduced to 100 percent.
11. This Court in MA No. 474/2010 titled "Ghulam Fatima and others vs. Rajinder Singh and another" reported as 2023:JKLHC:2088 decided on 27.04.2023 has considered an almost identical issue where the workman had suffered loss of complete vision of his left eye. In that case, the Commissioner had awarded the compensation, thereby assessing the loss of earning capacity of the claimant as 40 percent, in view of the injury figuring at Serial No. 26 of Schedule-1 of the Act. This Court modified the award after taking note of the various judgments of Hon'ble Supreme Court, by observing as under:
"Now, the ratio of all these judgments is that authorities under the Act has to assess the loss in the earning capacity of the workmen depending upon the evidence brought on record. So far as instant case is concerned, there is unchallenged statement of the deceased-appellant that his earning capacity has been reduced by 100%. Further the statement of Dr. R. D. Sood has clearly proved that the patient was completely blind so far as his left eye is concerned and that the patient can perform sedentary jobs, meaning thereby that the deceased-appellant was not capable of performing all the jobs which he otherwise could have performed but for the accident."
12. From the medical evidence of the Doctors on record, it is proved that the respondent No. 1 cannot drive a vehicle, as such, this Court does not find any perversity in the finding returned by the Commissioner that the earning capacity of the respondent No. 1 has been reduced to 100 percent. Thus, the substantial question of law is answered accordingly. 6 MA No. 19/2014 IA No. 30/2014
13. After having gone through the award passed by the Commissioner, this Court does not find any reason whatsoever to show indulgence and is of the considered view that the appeal filed by the appellant Insurance Company is without merits and the same is accordingly dismissed.
14. Amount deposited either before this Court or Before Assistant Labour Commissioner, Jammu be released in favour of the respondent No. 1 after his due identification by his counsel.
15. Disposed of.
(RAJNESH OSWAL) JUDGE Jammu 01.08.2023 Sahil Padha Whether the order is speaking: Yes/No. Whether the order is reportable: Yes/No.