NEW INDIA ASSURANCE COMPANY LIMITED vs SH. WASEEM & ANR.

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 01 December 2023
Judgment pronounced on : 22 January 2024
+ FAO 161/2021 & CM APPL. 21602/2021, CM APPL. 21604/
2021, CM APPL. 21605/2021, CM APPL. 21673/2021
NEW INDIA ASSURANCE COMPANY LIMITED
….. Appellant
Through: Appearance not given.
versus
SH. WASEEM & ANR. ….. Respondents
Through: Mr. R.K. Nain, Mr. Daksh Nain
and Mr. Chandan Prajapati,
Advs. for R-1.
CORAM:
HON’BLE MR. JUSTICE DHARMESH SHARMA
J U D G M E N T

1. This is an appeal preferred under Section 30 of the Employees
Compensation Act1 by the appellant/insurance company assailing the
impugned judgment dated 27.08.2019 passed by the learned
Commissioner, Employee”s Compensation (South)2 whereby the
claimant/respondent No.1 has been awarded total compensation of Rs.
8,28,096/- payable with interest @ 12% per annum within 30 days in
case No. CEC/SD/I/65/2018/2986.
2. Shorn of unnecessary details, it is stated that the respondent
no.1/claimant was employed as driver on truck bearing No. HR-38X-
6878 which met with an accident when the same was being driven by

1 Act, 1923
2 Commissioner

him on 29.03.2018 resulting in injuries to his left leg. The ill-fated
truck was evidently insured with the appellant/insurance company and
respondent no. 1/claimant was admittedly holding a valid driving
licence. Further, respondent No.2 was in agreement with the fact that
the injuries sustained by respondent no. 1 were during the course of
employment.
3. The claim petition was allowed by the learned Commissioner
vide impugned judgment/award, which is assailed in the present
appeal primarily on the grounds that the learned Commissioner
erroneously considered the physical disability @ 22% in relation to
„left lower limb” of the respondent No.1/claimant as 100% functional
disability and drawing perverse assumptions that respondent no.
1/claimant would be unable to perform his duties as driver. The
appellant/ insurance company has relied on proposition of law laid
down in the case of Pradeep Mahta v. National Insurance Co. Ltd.
& Anr.3 and Reliance General Insurance Co. Ltd. v. Manoj Singh
@ Manoj Chandra Wanshi & Anr.4 It was canvassed that the
respondent No.1/claimant/injured has made considerable
improvements in his working capacity and has otherwise been quite
healthy, and therefore, disability could not have been assessed at
100%.

3 FAO 216 of 2017 dated 16.02.2018 by Delhi High Court
4 FAO 425 of 2016 dated 02.09.2019

ANALYSIS:APPRECIATION OF FACTS & LAW:

4. I have given my thoughtful consideration to the submissions
made by the learned counsel for the rival parties. I have also gone

through the relevant record of the case including the digitized lower
Court record.
5. It is relevant to take note that learned Commissioner based on
the pleadings of the parties, framed the following issues for
consideration:

“1. Whether there exists employee-employer relationship between
Respondent No. 1?
2. Whether the applicant suffered injury in the course of the said
employment?
3. If, yes, what relief and what direction is to be passed?”

6. The learned Commissioner conjointly decided the issues No. 1
and 2 and the operative portion of the order in so far as it decides issue
No.2 reads as under:-

“11. In view of above discussion it is proved from the statement of
Respondent No. 1, documents placed on record regarding treatment
of applicant and as no negativity has come out from the cross
examination of the applicant and witness done by counsel for
respondent no.2, therefore, it is proved that applicant was
employed by Respondent No. 1 as a driver and he met with an
accident in the course of his employment on 29/03/2018 resulting
thereby his left leg was operated and rod was fitted in his left leg
and due to this he is unable to perform his duty as a driver which
he was doing before the accident as such he has lost his 100%
earning capacity. I”m not in agreement with the assessment done
by Aruna Asaf Ali Govt. Hospital Delhi wherein Medical Board
assessed 22% only permanent disability. While Ld. Counsel for
applicant argued that respondent has become 100% disable for
permanent and unable to perform his duty as driver which he was
doing before the accident. In this regard Ld. Counsel relied upon
the judgement of Hon’ble Supreme Court of India in case titled
as Partpa Narayan Singh Deo V/s Sriniwas Sabata and another
cited in 1976 ACJ 141. The relevant portion of judgment
reproduced as under:-

“It has not been deputed (sic. disputed) before us that the
injury was of such nature as to cause permanent
disablement to the respondent, and the question of
consideration is that whether the disablement has
incapacitated the respondent for all work which he was

capable of performing at the time of the accident. The
Commissioner has examined the question and recorded
his findings as follow.
The injured workman in this case is carpenter by
profession……… By loss of the left hand above the elbow
he had evidently been rendered unfit for the work of
carpenter as the work of carpenter cannot be done by one
hand.
12. In this case the applicant was driver by profession and he was
injured rendering him unable to do which he was doing prior to the
accident hence the loss of earning capacity is 100%. The above
judgement is completely applicable here as applicant is unable to
perform his duty as a driver which he was doing prior to the
accident Hence, I am not considering medical certificate report
issued by Aruna Asaf Ali Hospital Delhi and accordingly hold that
applicant has become permanently 100 % disable and entitled for
100% injury compensation.
Ld. counsel for petitioner Mr. R.K. Nain also argued that the
principles of Evidence Act are not applicable in the proceedings
before the Commissioner and it is not incumbent on the part of the
applicant to get his case proved beyond doubt. In this regard he
relied upon the judgement of Hon’ble Supreme Court of India in
case titled as Maghar Singh V/s Jaswant Singh cited at 1997 ACJ
517 wherein Hon’ble Court held that.
“Workmen’s Compensation Act, 1923 Section 3(1) and 2(n)-
Accident arising out of and in the course of the Employment-
Workman-Claimant sustained injury which resulted in loss of both
hands just above the wrist resulting in permanent disability with
100% functional loss while he was operating toka machine-
Respondent contended that the Claimant was not his Employee-
Claimant did not possess any letter of appointment are any
documentary evidence for payments received by him for the work
done-Evidence that the machine which the Claimant was operating
was that of Respondent-Respondent had taken Claimant to the
Hospital after the injury and had signed the bed head ticket-
whether the Claimant was a workman under the Respondent and
the accident arose out of and in the course of Employment-Held
yes.

13. In other judgement of Hon’ble Supreme Court of India in the
matter in Mohan Soni V/s. Ram Avtar & Ors., 2102 ACJ 583 on
which Counsel for Petitioner relied. In this case tanker driver met
with an accident resulting thereby he suffered serious injury in a
motor accident and as a result, his right leg was amputated up to
the knee joint. He made a claim under the Workman Compensation
Act, 1923. The Commissioner held that disability suffered by him

as a result of the loss of the leg was 100% and awarded
compensation to him on that basis. In appeal the Hon’ble High
Court, like in the present case referred to the scheduled to the
Workman Compensation Act, 1923 and held that the loss of a leg
on amputation amounted to reduction in the earning capacity by the
60% and accordingly reduced the Compensation awarded to the
tanker driver. Hon’ble Supreme Court in this case set aside the
High Court Judgement and held that the tanker driver had suffered
100% disability and incapacity in earning his keep as a tanker
driver as his right leg was amputated knee and accordingly restored
the order passed by the Commissioner Workmen Compensation.
On the other side Ld. Counsel of the Respondent No. 2, also filed
written submission on record wherein he argued that in this case
neither the accident took place within the jurisdiction of this
Authority nor the injured Claimant is residing within the
jurisdiction of this Authority. Hence the Authority does not have
the Jurisdiction to try and entertain the Claim of Claimant.
Respondent No. 2, had admitted to the extent that vehicle in
question bearing no. HR-38-X-6878 was insured with Respondent
No. 2, vide policy no. 31270531170100000220 valid from
28.06.2017 to 27.06.2018 issued in the name of Saleem S/o Sh.
Sultan Khan. Further Ld. Counsel argued that there is no FIR or
information to police regarding this accident there is possibility
that Applicant deliberately not disclosed fact regarding the report
to police, there is possibility that he had filed the case under Motor
Vehicle Act, 1998 and possibility to get the compensation from
both the forums. It is further argued that there is no photographs on
driving license which is exhibited AW-1/3. This fact shows that the
Claimant has placed the fabricated driving license and he was not
holding the Driving License. Hence he was not a driver on alleged
vehicle on the day of accident. Further Ld. Counsel argued that
date of birth of applicant as shown in Aadhar card is correct. As
per Aadhar card date of birth of Applicant is 01.01.1974 show the
aged of Claimant/Applicant at the time of alleged accident was 44
years 2 month and 28 days. Further Ld. Counsel argued that as per
disability certificate issued by Aruna Asaf Ali Govt. Hospital
Delhi, Applicant become 22% disabled permanent (physical
impairment) in relation to his left lower limb. But Applicant never
got any treatment from Aruna Asaf Ali Govt. Hospital Delhi. Thus
the Ld. Counsel put question mark on disability certificate issued
by Aruna Asaf Ali Govt. Hospital Delhi. Further Ld. Counsel
relied upon the judgement mentioned bellow on disability issue.
1. National Insurance Company Ltd., Vs. Mubasir Ahmed &
Anr. II(2007) ACC 374 (SC)

2. Pal Raj Vs. Divisional Controller., NEKRTC, II (2010)
ACC 915 (SC)
3. Oriental Insurance Company Ltd., Vs. Mohd. Nasir & Anr.
IV (2009) ACC (SC)
4. New India Assurance Company Ltd., Vs. Narayan Basu &
Anr. FMA 610/2012 with CAN No. 8372 of 2014 decided on
09.04.2015, by Hon’ble High Court of Calcutta.
Finally Ld. Counsel for R-2 argued that Respondent No. 2,
Insurance Company is not statutory liable to pay
compensation to Applicant.
14. I have gone through the pleadings on party on document
available on records and various Judgements sited by both the
parties. The main issue in this case is this that Applicant Mr.
Waseem was employed as a driver with Respondent No. 1, on
which vehicle bearing no. HR-38-X-6878 truck on 29.03.2018
when he was occupational trip he met with an accident out of and
during the course of employment resulting thereby he sustained
injuries all over his body specially on his left leg and during the
treatment rod was fitted in his left leg and due to this he was unable
to move, climb or perform duty of driver which he was performing
before accident. To prove his case Applicant examined himself and
Sh. Rashid Ali, who had taken him for treatment to AIIMS Trauma
Centre Delhi after the accident, who deposed clearly that Waseem
Applicant mate with an accident while he was on duty with vehicle
in question. And he was employed with Saleem Respondent No. 1
on the day of accident and in this accident Applicant sustained
injuries on his leg arms and head. In cross examination done by
Respondent No. 2, nothing has come out which goes against the
Claimant. Further Respondent No. 2, Insurance Company did not
lead any evidence to prove contents of his case. Thus Respondent
No. 2, to fail to prove his case. On the basis or material available
on record it is proved that on the day of accident Applicant was in
the employment of Respondent No. 1 as a driver and further
objection of Respondent No. 2 regarding jurisdiction to entertain
this claim by this Authority because Respondent No. 2 had issued
Insurance Policy in favour of Respondent No. 2 who reside in
Delhi as per address mention on policy certificate no.
31270531170100000220 valid from 28.06.2017 to 27.06.2018 and
additional premium was paid to Respondent No. 2 to cover all the
risk and liability as per policy certificate. In these circumstances
objection of Respondent no. 2 Insurance Company on the issue on
jurisdiction to entertain this Authority is not considerable.

15. In view of above discussion I have come to conclusion that the
judgement relied by the Ld. Counsel for petitioner to access

disability of Applicant is in favour of Applicant and accordingly
the assessment done by Aruna Asaf Ali Govt. Hospital reaching
conclusion 22% in this case is not appear correct in the light of
various judgement of the Court as cited above because being the
driver after the accident rod was fitted in his left leg would be
unable to perform his duty as driver which he was performing post
to accident. The argument adduced by Ld. Counsel for ,
Respondent No. 2, are not fit to considered and further the
judgement on which Ld. Counsel relied are also not completely
applicable in this case.
16. Accordingly I hold that employee and employer relationship
has been proved as discussed above and applicant is entitled to
receive injury compensation from the Respondent No. 1 owner of
the vehicle, since vehicle in question was insured with Respondent
No. 1 New India Assurance Company Limited hence Respondent
no.2 is liable to indemnify to applicant. 17. Accordingly issue no.1
and No.2 are decided in favour of Applicant
17. Accordingly issue no.1 and No.2 are decided in favour of
Applicant.
Issue No.3
For calculation of injury compensation age of petitioner as on
accident was 44 years on the basis of date of birth of Applicant i.e.
01.01.1974, as per his Aadhar Card and relevant factor 172.52 and
60% of wages of Rs. 8,000/- (Rs. 4,800/-)as restricted by Govt. of
India on 31.05.2010. Accordingly calculation was calculated as
under:
172.52 X 4,800/- =Rs. 8,28,096/-
Since in view of above calculation Applicant is entitled to received
Rs. 8,28,096/from the Respondent No. 1. Since vehicle in question
was insured on the day of accident with Respondent No. 2, New
India Assurance Company Ltd., is liable to indemnify to claimant.
Further Respondents fail to deposit compensation after 30 days
from the date of accident with this Authority hence Respondent is
also liable to pay 12% interest per annum on awarded amount with
effect from 29.04.2018. In regard penalty as prayed by Claimant I
do not file any justified arguments to impose penalty upon
Respondents hence same is not considered.
18. Accordingly Respondent No. 2, The New India Assurance
Company Ltd., is directed to deposit Rs. 8,28,096/- with 12%
interest per annum with effect from 29.04.2018 within 30 days
from the date of order, failing which same shall be recovered as per
provision of the Act.”

7. It is pertinent to indicate that the arguments in the instant matter
were addressed alongwith connected matters viz. FAO 17/2021 titled
„New India Assurance Co. Ltd. v. Moharman & Anr.”; FAO
21/2021 titled „New India Assurance Co. Ltd. v. Pushkin Tiwari &
Anr.”; and, FAO 305/2022 titled „New India Assurance Co. Ltd. v.
Furkan @ Mohd. Furkan & Anr.” besides FAO 172/2021 titled
„New India Assurance Co. Ltd. Vs. Sanjay Kumar Dass @ Sanjay
Kumar Singh & Anr.” wherein the same substantial question of law
has been raised, thereby challenging the impugned judgment-cum-
award passed by learned Commissioner, Employees” Compensation
awarding compensation holding 100% loss of earning capacity for the
injuries sustained in the accident by respondent no.1/claimant
workman. The above-noted first three FAOs have been decided vide
common judgment of even date. This Court has dealt with the entire
chronology of the case-law cited at the Bar in the common judgment
in FAOs 17/2021, 21/2021 and 305/2022. Therefore, this Court would
do no further than to cut and paste the relevant portions of the
discussion on the proposition of law in the present matter, except in so
far as distinguishable from the facts of this matter, which go as under:

PASSAGES BORROWED FROM FAOs 17/2012, 21/2021 &
305/2022 FOR THE SAKE OF CONVENIENCE:

8. At the outset, it must be stated that an appeal preferred under
Section 13 against the order of the learned Commissioner is not like a
regular first appeal in the nature of Section 96 of the CPC and the
appellate jurisdiction of this Court is only to examine the substantial

questions of law arising in the matter5. It must be stated first that on
the face of it, except for the issue of the functional disability of each of
the claimants having been assumed/taken/considered @ 100% loss of
earning in contradiction to the medical certificate with regard to
physical disability, there are canvassed no other issues.

5 North East Karnataka Road Transport Corpn. v. Sujatha, (2019) 11 SCC 514).

PROPOSITION OF LAW

9. Therefore, let us first examine as to what „substantial
question” of law is involved. In order to decide whether the given set
of facts and circumstances involve substantial question of law, it
would first be expedient to refer to Section 4 of the Act, which
provides as follows:

“4. Amount of compensation.—(1) Subject to the provisions of
this Act, the amount of compensation shall be as follows,
namely:—

(a) ………..not relevant;

(b) where permanent
total disablement results
from the injury

an amount equal to 2[sixty per
cent.] of the monthly wages of
the injured 3[employee]
multiplied by the relevant
factor;
or
an amount of 6[one lakh and
forty thousand rupees],
whichever is more:

1[Provided that the Central Government may, by
notification in the Official Gazette, from time to time, enhance the
amount of compensation mentioned in clauses (a) and (b);]
Explanation I.—For the purposes of clause (a) and clause
(b), “relevant factor”, in relation to 2 [an employee] means the
factor specified in the second column of Schedule IV against the
entry in the first column of that Schedule specifying the number of
years which are the same as the completed years of the age of the
3[employee] on his last birthday immediately preceding the date on
which the compensation fell due.

4[* * * **]

(a) ………..not relevant;

(b) where permanent
total disablement results
from the injury

an amount equal to 5[sixty per
cent.] of the monthly wages of
the injured 3[employee]
multiplied by the relevant
factor;
or
an amount of 6[one lakh and
forty thousand rupees],
whichever is more:

(c) where permanent
partial disablement
results from the injury

(i) in the case of an injury
specified in Part II of Schedule
I, such percentage of the
compensation which would
have been payable in the case of
permanent total disablement as
is specified therein as being the
percentage of the loss of earning
capacity caused by that injury;
and
(ii) in the case of an injury not
specified in Schedule I, such
percentage of the compensation
payable in the case of
permanent total disablement as
is proportionate to the loss of
earning capacity (as assessed by
the qualified medical
practitioner) permanently
caused by the injury;

Explanation I.—Where more injuries than one are caused
by the same accident, the amount of compensation payable under
this head shall be aggregated but not so in any case as to exceed the
amount which would have been payable if permanent total
disablement had resulted from the injuries.
Explanation II.—In assessing the loss of earning capacity
for the purposes of sub-clause (ii), the qualified medical
practitioner shall have due regard to the percentages of loss of
earning capacity in relation to different injuries specified in
Schedule I;

(d) where temporary
disablement, whether

a half-monthly payment of the
sum equivalent to twenty-five

total or partial results
from the injury

per cent. of monthly wages of
the 3[employee], to be paid in
accordance with the provisions
of sub-section (2).

5[(2A) The employee shall be reimbursed the actual
medical expenditure incurred by him for treatment of injuries
caused during the course of employment.]”

10. At this juncture, it is pertinent to indicate that each of the
appeals are ones that pertain to the category vide section 4(1)(c)(ii)) of
the Act. It would further be relevant to refer to Section 2(g) of the Act
which inter alia defines „partial disablement” apart from Section 2(l)
of the Act, which defines „total disablement” as under:

“2(g) “partial disablement” means, where the disablement is of a
temporary nature, such disablement as reduces the earning capacity
of a 2 [employee] in any employment in which he was engaged at
the time of the accident resulting in the disablement, and, where the
disablement is of a permanent nature, such disablement as reduces
his earning capacity in every employment which he was capable of
undertaking at that time: provided that every injury specified 3 [in
Part II of Schedule I] shall be deemed to result in permanent partial
disablement;
2(l) “total disablement” means such disablement, whether of a
temporary or permanent nature, as incapacitates a2 [employee] for
all work which he was capable of performing at the time of the
accident resulting in such disablement:”

11. A careful perusal of the aforesaid provisions read with Parts-I
and II of Schedule-I vis-à-vis Section 2(g) and (l) of the Act would
show that where “permanent partial disability” is claimed, vide
Explanation II to Section 4(c) of the Act, the medical practitioner shall
have due regard to the percentages of loss of earning capacity in
relation to different injuries specified in the Schedule-I for the
purposes of assessment of loss of earning capacity. Further, whereas

Part-I specifies the injuries which would be deemed to result in
„permanent total disablement”, Part-II specifies injuries which would
be deemed to result in „permanent partial disablement”. The distinction
is very thin, but real to the effect that while permanent disablement is
100% disablement, permanent partial disablement is only the
disablement to the extent specified in the schedule.
12. The above-noted provisions of the Act have come to be
interpreted in umpteen number of matters by the Apex Court as also
by various High Courts, including our High Court. In the cited case of
Mohd. Nasir (supra), the claimant/workman was working as a cleaner
on a truck, which met with an accident and he suffered permanent
partial disability in the nature of injuries to his right leg. The learned
Commissioner opined that although workman had suffered 50%
disability, the loss of his earning capacity was 100%. The cited case
was in fact a common decision rendered on three other SLPs. The
second case was one where the injured was a casual labour employed
for loading and unloading and although his physical disability was
assessed at 40%, the functional loss of earning capacity was assessed
to be 80%. The third case also involved two victims who were
engaged for loading and unloading of goods wherein physical
disability was assessed at 40% for each but the loss of earning
capacity was assessed at 80% and 100% respectively; and the fourth
case was one where the victim was a driver of the offending vehicle
aged about 65 years, who was a practicing advocate, and his
permanent disability was assessed at 50% and loss of earning capacity
was assessed at 50%.

13. The Supreme Court while referring to earlier case in Mubasir
Ahmed (supra) quoted the following observations in law with
approval :

“8. Loss of earning capacity is, therefore, not a substitute for
percentage of the physical disablement. It is one of the factors
taken into account. In the instant case the doctor who examined the
claimant also noted about the functional disablement. In other
words, the doctor had taken note of the relevant factors relating to
loss of earning capacity. Without indicating any reason or basis the
High Court held that there was 100% loss of earning capacity.
Since no basis was indicated in support of the conclusion, same
cannot be maintained. Therefore, we set aside that part of the
High Court’s order and restore that of the Commissioner, in view of
the fact situation. Coming to the question of liability to pay
interest, Section 4-A(3) deals with that question. The provision has
been quoted above.”

14. In view of the said observation, the Supreme Court in the case
of Mohd. Nasir (supra) held as follows:

“16. In determining the amount of compensation, several factors
are required to be taken into consideration having regard to the
Note. Functional disability, thus, has a direct relationship with the
loss of limb.
Mohd. Nasir was a driver. A driver of a vehicle must be
able to make use of both his feet. It was the case of the claimant
that he would not be in a position to drive the vehicle and
furthermore would not be able to do any other work. He was
incapable of taking load on his body. It, however, appears that
in his cross-examination, he categorically stated that only Chief
Medical Officer had checked him in his office. No disability
certificate had been granted. He admitted that he had not suffered
any permanent disability. He ,even according to the Chief Medical
Officer who had not been examined, suffered only 15% disability.
The Tribunal has arrived at the following findings:

“On page 16 original of disability certificate, the prescription
of medicine, X-Ray report of Sarvodaya and of Mohan X-
Rays have been produced which reveals the fracture of right
leg. CMO certificate No O/M 9.2003 dated 21.3.2005 has
also been produced which is alleged to be false by Insurance
Company. I have perused them carefully which bears
signature of Deputy CMO of Disability Board, Moradabad

had shown that the applicant had appeared before them for
medical check up and whose examination was done by senior
orthopaedic surgeon Dr. R.K. Singh on the basis of
recommendation of Dr. Bansal operation was done on
2.10.2004. The applicant walks with the help of the
support and is not competent to drive heavy motor
vehicle. The said certificate was issued with recommendation
that after six months his condition is to be reviewed.
That document was filed on 29.33.2005. Insurance Company
has stated the doctor who has issued disability certificate has
not been produced in the Court. But looking into the
aftermath situation the plea of Insurance Company that the
said certificate is forged and the same has not been issued by
any MBBS doctor, carries no force.”
17. The learned Tribunal had held that there has been a 15%
disability but then there was nothing to show that he suffered 100%
loss of earning capacity. The Commissioner has applied the 197-
06 as the relevant factor, his age being 35. He, therefore,
proceeded on the basis that it was a case of permanent total
disablement. However, his income was taken to be at Rs. 1,920/-
per month. There is nothing on record to show that the qualified
medical practitioner opined that there was a permanent and
complete loss of use of his right leg or that he became totally unfit
to work as a driver. In that situation, the High Court, in our
opinion, was not correct in determining the loss of income at
100%.
In Ramprasad Balmiki v. Anil Kumar Jain & Ors., IV
(2008) ACC 1(SC)=(2008) 9 SCC 492, wherein upon referring to
the evidence of the Doctor who did not say that any permanent
disability had been caused, this Court held:
“Be that as it may, the High Court, in our opinion, correctly
proceeded on the assumption that the extent of permanent
disability suffered by the appellant is only 40% and not
100%.”

We, therefore, are of the opinion that the extent of disability should
have been determined at 15% and not 100%. The appeal is allowed
to the aforementioned extent.”

{Bold emphasized and contrasted with sentences in italics}

15. In the cited case of Raj Kumar (supra), the victim sustained
fracture of both bones of left leg and fracture of left radius and
admittedly remained under prolonged medical treatment. Although the

medical certificate provided that permanent disability had been
suffered to the extent of 45%, the learned Tribunal assessed the loss of
earning capacity to be 100%. It is in the said context that the following
observations of law, that remained untampered till today, were made
which read as under:

“12. Therefore, the Tribunal has to first decide whether there is
any permanent disability and, if so, the extent of such permanent
disability. This means that the Tribunal should consider and decide
with reference to the evidence:
(i) whether the disablement is permanent or temporary;
(ii) if the disablement is permanent, whether it is
permanent total disablement or permanent partial
disablement;
(iii) if the disablement percentage is expressed with
reference to any specific limb, then the effect of such
disablement of the limb on the functioning of the entire body,
that is, the permanent disability suffered by the person.
If the Tribunal concludes that there is no permanent disability then
there is no question of proceeding further and determining the loss
of future earning capacity. But if the Tribunal concludes that there
is permanent disability then it will proceed to ascertain its extent.
After the Tribunal ascertains the actual extent of permanent
disability of the claimant based on the medical evidence, it has to
determine whether such permanent disability has affected or will
affect his earning capacity.

13. Ascertainment of the effect of the permanent disability on
the actual earning capacity involves three steps. The Tribunal has
to first ascertain what activities the claimant could carry on in
spite of the permanent disability and what he could not do as a
result of the permanent disability (this is also relevant for
awarding compensation under the head of loss of amenities of life).
The second step is to ascertain his avocation, profession and
nature of work before the accident, as also his age. The third
step is to find out whether (i) the claimant is totally disabled from
earning any kind of livelihood, or (ii) whether in spite of the
permanent disability, the claimant could still effectively carry on
the activities and functions, which he was earlier carrying on,
or (iii) whether he was prevented or restricted from discharging
his previous activities and functions, but could carry on some

other or lesser scale of activities and functions so that he
continues to earn or can continue to earn his livelihood.”
{bold portions emphasized}

16. The principles laid down in Raj Kumar (supra) that were
summarised are as follows:

“19. We may now summarise the principles discussed above:
(i) All injuries (or permanent disabilities arising from injuries),
do not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to
the whole body of a person, cannot be assumed to be the
percentage of loss of earning capacity. To put it differently, the
percentage of loss of earning capacity is not the same as the
percentage of permanent disability (except in a few cases, where
the Tribunal on the basis of evidence, concludes that the percentage
of loss of earning capacity is the same as the percentage of
permanent disability).
(iii) The doctor who treated an injured claimant or who
examined him subsequently to assess the extent of his permanent
disability can give evidence only in regard to the extent of
permanent disability. The loss of earning capacity is something that
will have to be assessed by the Tribunal with reference to the
evidence in entirety.
(iv) The same permanent disability may result in different
percentages of loss of earning capacity in different persons,
depending upon the nature of profession, occupation or job, age,
education and other factors.”

17. It is pertinent to mention here that the dictum in the aforesaid
two cases, heavily relied upon by the learned counsel for the
appellants, were rendered by two Hon”ble Judges i.e., the Division
Bench of the Supreme Court. On the other hand, learned counsel for
the respondent/claimant referred to a decision in Pratap Narain Singh
Deo (supra), which was given by a Constitution Bench consisting of
five judges of the Supreme Court, wherein the Court decided a matter
in which the victim was working as a carpenter who met with an

accident and the injuries sustained resulted in amputation of his left
arm from the elbow. The injury was held to be „total disablement”
within the meaning of Section 2(l) of the Act and it was observed that
amputation of the left hand above the elbow has rendered the
workman „unfit” for performing work as a carpenter, as carpentry
work cannot be done with one hand only and the decision to adjudge
100% loss of earning capacity was upheld.
18. In the case of Ranjit Singh @ Rana (supra), the victim was a
driver by profession and he sustained permanent disability to the
extent of 50% while the learned Commissioner assessed the loss of
earning capacity to the extent of 100%. This Court relying on the
decision in the case of State of Gujarat v. Rajendra Khodabhai
Deshdia & Anr.6, Pratap Narain Singh Deo (supra), Rayapati
Venkateswar Rao v. Mantai Sambasiva Rao & Anr.7 and G.
Anjaneyulu v. Alla Seshi Reddy & Anr.8, upheld the decision by the
learned Commissioner to the effect that “the operation of right leg
had been impaired that would render the workman not in a position
to drive any heavy vehicle like truck/bus and therefore, functional
disability has been correctly assessed @ 100%”.
19. In the case of Hari Om (supra), the workman was employed as
a driver, who sustained injuries in the nature of Compound Fracture
Shaft Femur Rt. with Communicated Intra-articular Fracture Rt. Knee
of upper and of Tibia and Fibula with large degloving injury Lt. leg
with fracture base of Rt. 1st Metatarsal with fracture of lateral nasal

6 1991 ACJ 638
7 2001 ACJ 2105
8 2002 ACJ 1392

bone with multiple lacerated wounds. Although medical disability was
assessed as 30% permanent in nature, the loss of earning capacity
assessed as 100% by the learned Commissioner was upheld.
20. In Mohan Soni (supra), the victim was earning his livelihood
as a cart puller and the accident resulted in amputation of his left leg
below the knee. The Supreme Court did not approve the decision of
the learned Tribunal and the High Court limited the loss of earning
capacity to 50% merely because the victim was a cart puller. The
observations referred to in the above judgment in the case of Raj
Kumar (supra) were cited with approval and the functional disability
was held to be as high as 100% but in no case less than 90%. What is
to be underlined is that it was observed by the Supreme Court that
“the estimation of functional disability and its effect on nature of work
being performed by the victim suffering from such disability may be
different and affect two different persons in different ways”. It was
also observed that “while estimating functional disability, the Court
should refrain from considering hypothetical factors like possibility of
change of vocation or adoption of another means of livelihood”. It
was held that “scaling down of compensation could only be done when
some tangible evidence is on the record and not otherwise”.
21. The decision in Mohd. Ajmer (supra) is one where the victim
was a driver and although physical disability in his right lower limb
was medically assessed to be 30%, the functional disability was held
to be 100%. This Court referred to a decision by the Supreme Court in
Mohan Soni (supra) wherein it was held that “in the context of loss of
future earning, any physical disability resulting from an incident has

to be judged with reference to the nature of work being performed by
a person suffering the disability. This is the basic premise and once
that is grasped, it clearly follows that the same injury or loss may
affect two different persons in different ways”. This Court also
referred to the decision in Bikramjit Singh (supra), wherein it was
observed as under:

“The appellant’s argument is untenable because what has to be
examined is whether the physical disability results in such a
disability that would render the injured party unable to discharge
functions of employment which he/she was doing earlier i.e. the
degree of functional disability would form the basis for assessing
compensation. The driver has 31% physical disability in the right
lower limb and that would obviously render him unable to drive a
motor vehicle or a goods carrier as the right leg is used primarily
for acceleration and applying the brake, the two most important
aspects of a motor vehicle in motion.
If there is an impairment to such a degree, then it would
compromise the safe driving of the vehicle, therefore, it could
well be determined as 100% functional disability. Hence, 31%
disability in the right leg can easily be equated as 100% disability
for a driving.
Since, there was a doubt about the extent of disability
suffered by the claimant, the Commissioner, Employees’
Compensation had referred the case for ascertainment of the
disability to the Medical Board of Aruna Asaf Ali Hospital, Delhi,
a government owned and run hospital. The said Medical Board
comprising three doctors, by a Certificate dated 13.09.2013,
Exhibit AW 1/2 has certified that the claimant’s case was of
proximal femur (right) resulting in physical disability of 31% in the
right lower limb.

Keeping this Certificate in mind, the impugned order relied
upon the judgment of this Court in National Insurance Co. v. Hari
Om, 2011 LLR-428 that loss of earning capacity of the driver was
assessed as 100% even though his physical disability was only
20%-25%. Similarly, in National Insurance Co. Ltd. v. Shri Ranjit
Singh@ Rana FAO No. 246/2007 delivered on 26.11.2009 again
considered the physical disability of 15% as 100% functional
disability. In the present case, however, the disability is 31% in the
right lower limb which obviously would compromise safe driving
of any motor vehicle. The employment of a driver suffering

from such a severe physical disability is a too remote, indeed
almost negligible. Therefore, would have to be treated as a
100% functional disability entitling the claimant to the award
which has been granted.”
(ii) Raj Kumar v. Ashok Kumar & Bros. (FAO No. 498/2016),
decided on 19.04.2017, which held that:-
“7. The appellant is present in person in view of the
directions of a learned Single Judge of this Court dated
15.12.2016. It is seen that the appellant is walking with a
stick and the left lower limb is in such a condition that
obviously appellant will be no longer be able to perform
the duty of a driver. Though, the medical certificate may
only call the disability as 23% disability, really the
disability is 100% because appellant cannot perform the
duty of a driver, and this is so held by the Supreme Court
in the case of Pratap Narain Singh Deo (supra) referred to
above.” {bold portions emphasized}

22. The aforesaid evolvement of compensatory jurisprudence over
the years settles the issue of assessment of loss of earning capacity.
However, I shall lastly refer to decision in Chanappa Nagappa
Muchalagoda (supra) wherein the workman was a driver of heavy
vehicle aged about 33 years, who suffered from serious injuries to his
right leg in the nature of an anteriour cruciate ligament and a collateral
ligament tear and was subjected to plastic surgery that resulted in
permanent disability, which was medically opined to be 37%. The
Supreme Court referred with approval the decision in Raj Kumar
(supra) and some other decisions, and affirmed the judgment of the
High Court on assessing the functional disability of the appellant as
100%.

DECISION:

23. In view of the aforesaid proposition of law, reverting back to
the instant matter, evidently respondent No.1/claimant suffered

disability in the nature of permanent functional disability of his left
Tibia, the inner and typically larger of the two bones between the knee
and the ankle. It is a weight bearing bone and a crucial one for
applying pressure. There could hardly be any doubt that the
amputation of left leg per se is a permanent „partial” disability. The
testimony of respondent No.1/claimant remains uncontroverted and
unrebutted that he was employed as a driver.
24. At the cost of repetition, respondent No.1/claimant was holding
a valid driving licence. The possibility of respondent No.1/claimant
gaining employment as a driver in future is completely ruled out. The
functional disability is total and he would not be able to secure
employment as a driver. There is no gainsaying that the Court cannot
venture into the realm of hypothetical considerations so as to hold that
respondent No.1/claimant could get an artificial foot or prosthetic so
as to seek employment again as a driver.
25. Anyhow, first things first, the present appeal on the face of it is
barred by limitation. CM APPL. 21604/ 2021 is an application moved
on behalf of the appellant/Insurance Company seeking condonation of
delay of 471 days in filing the instant appeal whereas CM APPL.
21673/2021 is an application seeking condonation of 65 days delay in
re-filing the present appeal. The long and short of the applications are
that though the impugned judgment-cum-award was passed on
27.08.2019, it is acknowledged that the certified copies of the same
were made available on 06.09.2019. A lame excuse is taken that the
file was with the empanelled advocate, who sought some clarification
from the Transport Authority and it was confirmed on 27.02.2020 that

the injured No.1 has renewed his driving licence on 27.02.2020. The
fact of the matter is that the appeal period had expired long before the
advent of Covid-19 pandemic, which we all know led to lockdown
from 01.04.2020. Even if that long is condoned, there is no sufficient
cause explained so as to condone the delay of 65 days in re-filing the
appeal.
26. For the sake of convenience, even if taking a liberal view, the
said applications are allowed, the grievance of the appellant/Insurance
Company on merits is also on a shaky foundation. Merely, because the
driving licence has been renewed for the period 27.02.2020 to
26.02.2025 does not lead to an inference that the respondent
No.1/claimant is capable of securing an employment as a driver. The
disability is with regard to functional motor disability of the left tibia,
which is crucial bone in the leg, and which needs to be applied with
full potential for driving transport vehicle in the nature of application
of adequate foot pressure on the clutch and that by all means is a
permanent partial as well functional disability. This Court, therefore,
does not find any blemish in the learned Commissioner assessing the
loss of earning capacity to be 100%.
27. Accordingly, the present appeal is dismissed with costs of
Rs.50,000/- which would be paid to respondent No.1/claimant within
30 days from today for enduring this unnecessary litigation, failing
which, the same shall be payable with the interest @ 15% per annum
from the date of this judgment till realisation.

28. All the pending applications also stand disposed of. The amount
of compensation shall be released to respondent no.1/claimant
workman, if not already released, forthwith.

DHARMESH SHARMA, J.
JANUARY 22, 2024
Sadique/ck