NEW INDIA ASSURANCE CO. LTD. vs MOHARMAN & ANR.

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 01 December 2023
Judgment pronounced on : 22 January 2024
+ FAO 17/2021 & CM APPL. 1170/2021
NEW INDIA ASSURANCE CO. LTD. ….. Appellant
Through: Mr. Salil Paul with Mr. Sahil
Paul, Advs.
versus
MOHARMAN & ANR. ….. Respondents
Through: Mr. R. K. Nain, Mr. Daksh
Nain and Mr. Chandan
Prajapati, Advs. for R-1.
Ms. Hetu Arora Sethi, ASC,
GNCTD with Ms. Kavita
Nailwali, Adv. for
Commissioner.
+ FAO 21/2021 & CM APPL. 1454/2021
NEW INDIA ASSURANCE CO LTD ….. Appellant
Through: Mr. Salil Paul with Mr. Sahil
Paul, Advs.
versus
PUSHKIN TIWARI & ANR. ….. Respondents
Through: Mr. R. K. Nain, Mr. Daksh
Nain and Mr. Chandan
Prajapati, Advs. for R-1.
+ FAO 305/2022 & CM APPL. 51551/2022, CM APPL. 51553/
2022
NEW INDIA ASSURANCE CO. LTD ….. Appellant
Through: Mr. Salil Paul with Mr. Sahil
Paul, Advs.
versus
FURKAN @ MOHD. FURKAN & 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 common judgment shall decide the above-noted three
separate appeals preferred by the appellant/Insurance company, each
instituted under Section 30 of the Employee‘s Compensation Act,
19231 challenging the award of compensation to each of the injured
workman/respondent No.1/claimants assuming 100% loss of earning
capacity. The facts of the above-noted appeals present some-what
similar facts raising a substantial question of law about determination
of the amount of compensation in the face of apparent contradictions
between the medical evidence and the assumption of loss of earning
capacity by the Commissioner, Employee‘s Compensation, Delhi2. In
order to avoid any confusion, this Court would briefly delve into the
factual circumstances of each of the aforesaid appeals.

1 Act
2 Commissioner

FAO 17/2021

2. Shorn of unnecessary details, it is an admitted fact that the truck
bearing No. HR55-P-9692 was registered in the name of respondent
No.2 / registered owner, that met with an accident on 08.11.2017 at
about 07.00 a.m. in the morning within the jurisdiction of PS Delhi
Gate, District Aligarh, Uttar Pradesh near Talashpur, Aligarh bypass,
as a result of which, both driver and respondent No.1, who claimed to
be a cleaner deployed on the truck, sustained grievous injuries.

3. Respondent No.1 instituted an application for compensation
under the Act on 17.05.2018 and claimed that he was employed as a
cleaner on the ill-fated truck drawing wages @ Rs. 10,000/- per month
plus Rs. 200/- per day as food allowance. He claimed that he was 22
years of age and injuries sustained in the accident has rendered him in
no position to gain any employment as a driver or cleaner and claimed
100% disability with regard to the earning capacity. Admittedly, the
ill-fated truck was insured with the appellant/ insurance company and
there is no dispute that respondent No.1 was employed with
respondent No.2, and that the driver possessed a valid driving licence.
4. Suffice to state that the learned Commissioner passed the
impugned order dated 14.08.2020 holding that respondent No.1 was
entitled to compensation for the injuries sustained during the course of
his employment. Although, the Medical Board of Aruna Asaf Ali
Hospital, Delhi assessed his disability to the extent of 20% with regard
to injury on his =left lower limb‘, the learned Commissioner relying on
the decisions in Pratap Narain Singh v. Srinivasa Sabata3, National
Insurance Company v. Pappu & Anr.4 and Rayapati Venkateswar
Rao v. Mantai Sambasiva Rao & Anr.5, assessed the disability @
100% loss of earning capacity, and accordingly, applying the relevant
factor of 22 years viz., 221.37 as per Schedule IV to the Act and
calculating the loss of earning capacity at 60% of the assumed wages
@ Rs. 8000/- per month, awarded a total compensation of Rs.
10,62,576/- (221.37 x 8000 x 60) with interest @ 12% per annum

3 (1976) 1 SCC 289
4 2009 SCC Online Del 3536
5 2001 ACJ 2105

from the date of accident i.e. 08.11.2017, till its deposit in favour of
the claimant with the office of the Commissioner.

FAO 21/2021

5. In the instant appeal, the claim was instituted by the
driver/respondent No.1 of the same ill- fated truck bearing registration
No. HR-55-P-9692, who sought compensation in respect of injuries
sustained in the same accident on 08.11.2017. He claimed that he was
30 years of age and had been drawing wages @ 12,000/- per month
and in addition, getting Rs.300/- per day as food allowance for being
employed with respondent no. 2/registered owner, and he also claimed
to be 100% disabled for the purpose of his employment as a driver.
At the cost of repetition, the ill-fated truck was insured with the
appellant/insurance company and there was raised no dispute that
there was an existing relationship of employer and employee between
the claimant/respondent No.1 and respondent No.2 and that the
injuries were sustained during the course of such employment.
6. The learned Commissioner vide the impugned order dated
11.08.2020 inter alia held that although the Medical Board of Aruna
Asaf Ali Hospital, Delhi had assessed his disability to the extent of
18% in respect of injury to =right lower limb‘, relying on the decisions
by the Delhi High Court in New India Assurance Company Ltd. v.
Mohd. Ajmer6 and Reliance General Insurance Co. Ltd. v.
Bikramjit Singh7, loss of earning capacity was assessed at 100%.
Applying the relevant factor of 30 years i.e., 207.98 as per Schedule

6 2018 SCC Online 9158
7 FAO No. 24204/2016 decided on 01.05.2018

IV to the Act and assuming the wages to be @ Rs. 8,000/- per month
and thereby assessing the damages to the extent of 60%, a total sum of
Rs. 9,98,304/- was awarded (207.98 x 8000 x 60) with penalty of Rs.

100
2,49,576/- in terms of Section 4A(3) (b) of the Act to be payable
within 30 days from the date of pronouncement.
FAO 305/2022

7. In this case, a different vehicle was involved in the accident
bearing registration No. UA-07M-8987 owned by respondent No.2/
registered owner and admittedly insured with the appellant/Insurance
Company. Again shorn of unnecessary details, this unfortunate
accident occurred when respondent No.1, who was a cleaner on the
truck and was fixing the front tyre of the truck which had got burst,
by affixing/installing the jack, which gave away and the respondent
No.1 got caught up underneath the truck and sustaining injuries on his
both legs.
8. A claim petition was filed by respondent No.1 on 15.11.2016
seeking compensation, but the claim petition unfortunately shuttled
between different jurisdiction and led to protracted litigation, and
eventually the impugned order dated 03.08.2022 was passed by the
learned Commissioner rendering a finding that respondent
No.1/claimant was employed as a driver with respondent No.2 and he
suffered injuries during the course of his employment and although
the Medical Board of Aruna Asaf Ali Hospital, Delhi assessed his
disability at 39% with regard to injury on =left lower limb‘, it was held
that the respondent No.1/claimant would not be in a position to do any

physical work commensurating with duties as a driver and loss of
earning capacity was assessed to be 100%.
9. Suffice to state that some decisions by the Apex Court as well
as the High Court of Delhi were referred to by the learned
Commissioner and taking relevant factors and the age to be 45 years
i.e.; 169.44 as per Schedule IV to the Act, and assuming wages @ Rs.
8,000/- per month and assessing it at 60%, a total compensation of Rs.
8,13,312/- was awarded besides interest @ 12% per annum under
Section 4A of the Act from the date of accident i.e., 02.012015 till its
realization.
10. It goes without saying that notices of the present appeals have
been served upon the respondents and they have put appearance and
the present appeals are opposed.

LEGAL SUBMISIONS MADE AT THE BAR:

11. Learned counsel for the appellant/insurance company, alluding
to Section 4 (1) (c) (ii) of the Act, which provides for the manner in
which the compensation has to be assessed, has vehemently urged that
the said provision has been completely overlooked by the learned
Commissioner and there was no assessment as to the loss of earning
capacity by a qualified medical practitioner. Reliance has been placed
on the decisions in National Insurance Co. Ltd. v. Mubasir Ahmed
& Anr.8, Oriental Insurance Co. Ltd. v. Mohd. Nasir & Anr.9 and
Raj Kumar v. Ajay Kumar & Anr.10

8 (2007) 2 SCC 349
9 (2009) 6 SCC 280
10 (2011) 1 SCC 343

12. Per contra, learned counsel for the respondent vehemently
urged that the learned Commissioner had rightly found that the
claimants/respondent No.1 had suffered permanent disability, which
have rendered the injured workmen/claimants incapable of gaining
any employment as a driver, and therefore, loss of earning capacity
@100% was rightly assessed. Learned counsel for the respondent
placed reliance on the decisions in Pratap Narain Singh Deo v.
Srinias Sabta & Anr.11, National Insurance Co. Ltd. v. Ranjit
Singh @ Rana & Anr.12, National Insurance Company Ltd. v.
Hari Om13, Mohan Soni v. Ram Avtar Tomar & Ors.14, New India
Assurance Co. Ltd. v. Mohd. Ajmer15, North East Karnataka
Road Transport Corporation v. Sujatha16 and Chanappa Nagappa
Muchalagoda v. Divisional Manager, New India Insurance
Company Limited17.

11 (1976) 1 SCC 289
12 2009 SCC OnLine Del 3826
13 2011 SCC OnLine Del 328
14 (2012) 2 SCC 267
15 2018 SCC OnLine Del 9158
16 (2019) 11 SCC 514
17 (2020) 1 SCC 796

ANALYSIS AND DECISION:

13. I have given my thoughtful consideration to the detailed
submissions advanced by learned counsels for the rival parties at the
Bar. I have gone through the record of each of the aforesaid three
appeals. I have also meticulously gone through the case-laws settled at
Bar.
14. At the outset, it must be stated that an appeal preferred under
Section 13 against the order of the 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 matter18. 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 at 100% loss of
earning capacity in contradiction to the medical certificate with regard
to physical disability, there are canvassed no other issues.

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

PROPOSITION OF LAW

15. 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
total or partial results
from the injury

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

16. At this juncture, it is pertinent to indicate that each of these
appeals are ones pertaining 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:.

17. 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.
18. It may be stated at the outset that the three cases before us do
not involve amputation of any bodily limbs, and evidently in FAO
17/2021, the claimant vide medical certificate dated 01.11.2018
(Annexure-A/8) is shown to have suffered fracture of both bones of
his left leg, where disability has been opined to be 20% physical
impairment in relation to left lower limb. Likewise, in FAO 21/2021,
the claimant vide medical certificate dated 03.01.2020 (Annexure-
A/8) was found to be in complete injury leg fracture of fibula (Rt.),
which has been held to be a permanent physical impairment of their
right lower limb. For that matter, even in FAO 305/2012, certificate
dated 18.05.2017 (Annexure-A/6) is a case of fracture of SOF (Lt.)
plating, opined to be 30% permanent physical impairment in relation
to his left lower limb. Evidently, the aforesaid nature of injuries are
not specified in Schedule-I of the Act, and thus, the determination or
assessment of loss of earning capacity is to be provided by a qualified
medical practitioner, as engaged in terms of section 2(l) of the Act19.

19 (i) “qualified medical practitioner” means any person registered 12* * * under any 13[Central
Act, Provincial Act or an Act of the Legislature of a 14[State]] providing for the maintenance of a

register of medical practitioners, or, in any area where no such last-mentioned Act is in force, any
person declared by the State Government, by notification in the Official Gazette, to be a qualified
medical practitioner for the purposes of this Act;

19. At first blush, it is evident that in each of the disability
certificates introduced in evidence during the course of inquiry before
the learned Commissioner(s), no assessment has been made with
regard to the loss of earning capacity of the workman concerned. The
disability certificate is issued on a cyclostyled proforma, thereby
filling up the blanks and expressing the percentage of permanent
functional disability/impairement in respect of bodily limb
concerned. Each certificate describes the nature of injury and provides
that the disability is -not likely to improve. by specifically striking off
the sentence -likely to improve. and in each case there is no
recommendation for re-assessment of the disability in future.
20. All said and done, there is no finality attached to the decision of
the Medical Practitioner as to his/her decision with regard to the
percentage of the permanent functional disability. Such findings are
neither conclusive in nature nor the same is binding in any manner.
Such disability certificates are mere expression of an opinion by an
expert and not based on any objective parameters. Such reports are not
preceded with any detailed inquiry into the nature of work that was
being performed by the workman. Hence, this Court has no hesitation
in rejecting the plea by the learned counsels for the
appellants/Insurance Company that in the absence of finding by a
qualified medical practitioner, there could not have been any
independent assumptions on the part of the learned Commissioner.

21. 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
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 the 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%.
22. 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..

23. 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}

24. 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 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}

25. 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..

26. 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 Constitutional 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
the amputation of left hand above the elbow has rendered the
workman =unfit‘ for performing the work as a carpenter as the work of

carpentry cannot be done with one hand only and the decision to
adjudge 100% loss of earning capacity was upheld.
27. 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 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.20, Pratap Narain Singh Deo (supra), Rayapati Venkateswar
Rao (supra) and G. Anjaneyulu v. Alla Seshi Reddy & Anr.21
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%”.
28. 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
bone with multiple lacerated wounds. Although the medical disability
was assessed as 30% permanent in nature, the loss of earning capacity
assessed as 100% by the Commissioner was upheld.
29. In Mohan Soni (supra), the victim was earning his livelihood
as a cart puller and the accident resulted in amputation of his left leg

20 1991 ACJ 638
21 2002 ACJ 1392

below the knee. The Supreme Court did not approve the decision of
the Tribunal and the High Court limiting the loss of earning capacity
to 50% merely because the victim was a cart puller and the
observations referred to in the above judgment 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..
30. The decision in Mohd. Ajmer (supra) is one where the victim
was a driver and although the 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}

31. The aforesaid evolvement of compensatory jurisprudence over
the years settles the issue as to the assessment of loss of earning
capacity. However, I shall lastly refer to the 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 anterior 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 to 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%.
32. To sum up, while considering the case of =permanent partial
disablement‘, where disability is expressed with reference to any
specific limb of the body, the Tribunal is enjoined upon to consider
the effect of such disablement of the limb on the functioning of the
entire body. In doing so, the Tribunal is to first ascertain all the
activities that the claimant was performing prior to suffering of the
disability and how such activities being performed by the claimant are

effected subsequent to sustaining the disability. The bottom line is that
loss of earning capacity is a crucial aspect which has to be determined
by the Tribunal on appreciation of the evidence led on the record in its
entirety.
33. In view of the aforesaid proposition of law, coming to the
instant matters, let us deal with each of the appeal separately.

FAO 17/2021 &

34. In the instant matter, it was proven on the record that
respondent No.1/workman was 22 years of age and was employed as a
Cleaner by the registered owner of the truck. Learned Commissioner
decided the claim with regard to disability suffered as under:

-23. It is stated by the claimant that he was cleaner by profession
and now in this situation, he is not in the position to take his
profession of cleaner and he has lost 100% of his earning capacity.
He got injury enabling thereby he is no more in a position to do
which he was doing prior to the accident. Hence, his disability
should be assessed as 100%. In his medical Disability Certificate,
his injury has been shown =Left Lower limb‘. In this regard, the
question as to reduction in earning capacity was argued by the both
parties. Finding the nature of work, it should be accepted that it is a
case of 100% loss of earning capacity and in this regard the Ld.
Counsel for the claimant has relied on the ruling of the Hon‘ble
Supreme Court of India – Pratap Narain Singh vs. Srinivasa
Sabata cited at 1976 ACJ 141 whereby the Apex Court has held
that the workman was no more in a position do take up and do that
work which he was doing hence the disablement was assessed
100%. The Ld. Counsel of the claimant has drawn my attention and
has placed the judgment of Hon‘ble High Court of Delhi in the
case titled as National Insurance Co. vs. Pappu & Anr., FAO
289/2004 – Pappu was working as cleaner and in the case partial
physical disablement he was held entitled for 100% loss of earning
capacity and another judgment of Hon‘ble High Court Andhra
Pradesh in the case titled as Rayapati Venkateswara Rao vs. Mantai
Sambasiva Rao & Anr., cited at II (2001) ACC 300, decided by
Hon‘ble High Court of Kerala per Hon‘ble Mr. Justice N.V.
Ramana, the applicant was employed as cleaner on the truck and he
was entitled for 100% loss of earning capacity.

24. In view of above mentioned facts, judgment and the
claimant submitted that he was a cleaner and after the injury he is
not in the position to take his profession of cleaner and he got
injury enabling thereby he is no more in a position to do the work
which he was doing prior to the accident and he has lost 100%
earning capacity. Hence, I hold the applicant lost his earning
capacity as cleaner and the lost in it is 100%. In the given wage,
age and loss of earning capacity the applicant/claimant is entitled
to compensation as under:
i) Relevant factor of 22 years: 221.37
ii) 60% of wages @ Rs.8000/-pm: Rs.4800/-
iii) Amount of compensation
221.37 x 8000 x 60 : Rs.10,62,576/-
100”
25. As per the provisions of section 4A(3)(a) of the Act, the
claimant has also been made entitled to interest @ 12% per annum
on the principal amount of compensation from one month after the
date of accident i.e. 08.11.2017 till its deposition in favour of the
Commissioner Employee‘s Compensation, North District..

35. The aforesaid findings rendered by the learned Commissioner
have to be appreciated in the backdrop of the testimony of respondent
No.1/workman, who was examined on 09.05.2019 and his
uncontroverted and unrebutted deposition in the affidavit filed in
evidence Ex.AW-1/1 to the effect that the accident resulted in
grievous injuries all over his body especially on both his legs and that
he would not be able to work as cleaner; and that any possibility of his
becoming a driver in future was ruled out. The injured
workman/claimant in his cross examination was not prodded about
any possibility of disability getting healed or that his bodily limb
getting fully functional in the remainder of his life. The veracity of his
deposition that suffering permanent disability would render him
incapable of securing any other employment connected with motor
transport or otherwise was not questioned. Therefore, this Court is

unable to find any flaw in the ultimate decision by the learned
Commissioner reckoning the loss of earning capacity at 100%.
36. Hence, the present appeal is bereft of any merits and the same is
dismissed with costs of Rs.50,000/- that be paid to respondent no.
1/claimant within two months failing which the appellant/Insurance
company shall be liable to pay the same with interest @ 15% p.a.,
from the date of this judgment till realisation.

FAO 21/2021

37. In the instant matter, the respondent No.1/driver of the ill-fated
truck was about 30 years of age. There was no issue that the accident
occurred during the course of his employment and the issue of
disability was dealt with the learned Commissioner in the following
manner:

-17. In the claim application the applicant/claimant has stated that
he was drawing wages @ Rs 12,000/- per month plus Rs. 300/- per
day as food allowance. The respondent no. 1 employer has stated
that he was not being paid that amount as worked out by the
claimant but he was being paid @ Rs. 16,000/- per month
including all allowances. But as per maximum limit prescribed –
under the ‘Act’ for the purpose of compensating, at that particular
point of time, the wages can maximally be taken as Rs. 8,000/- per
month. His wage is thus taken Rs. 8000/- per month. The claimant
has further stated that he was 30 years old at the time of accident.
For the purpose of his assessment of his disablement, he was
directed to face Medical Board of Aruna Asaf Ali Hospital, Delhi
and the medical board has assessed him 18% permanent disabled.
In his medical Disability Certificate, his injury has been shown
‘Right Lower Limb’. The documents and the Medical Certificate
show that the applicant/claimant has certain injuries in his leg and
it is upto 18%. Now the issue is whether he can be allowed to take
driving in that physical condition of his body. He claims that he
may not be allowed to drive a heavy vehicle. In the given situation,
given that position of his leg, he may not be permitted to hold a
licence to drive a heavy vehicle. The counsel for the applicant has
placed reliance on the ruling by the Hon’ble High Court of Delhi in

F.A.O. No. 259/2013 New India Assurance company Ltd. Vs.
Mohd. Ajmer. In the said judgment, the Hon’ble High Court (by
Hon’ble Justice Najmi Waziri) has relied on the judgments of the
Hon’ble Supreme Court and this High Court. A portion of the
judgment which may be directly applicable on the case herein is
reproduced as under:-
“5. Furthermore, this Court has taken a similar view in:-
(i) Reliance General Insurance Co., Ltd. v. Bikramjit Singh (FAO
No. 24204/2016), decided on 01.05.2018; wherein it was held
that:-
“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 AW1/2, 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.”
In view of the aforesaid discussion, this Court does not find any
infirmity in the impugned order. The appeal is without merits and
is accordingly dismissed.”
18. In view of above mentioned facts, judgements and the claimant
submitted that he was a driver and after this injury he was no more
in a position to drive a vehicle and He also submitted that the
applicant was driver by profession & he had got injury enabling
thereby he is no more in a position to do the same which he was
doing prior to the accident, I hold he lost his earning capacity as
driver and the loss in it is 100%. In the given wage, age and loss of
earning capacity the applicant/claimant is entitled to compensation
as under:
i) Relevant factor of 30 years : 207.98
ii) 60% of wages @ Rs. 8000/- pm : Rs. 4800/-
iii) Amount of compensation
207.98 X 8000 X 60
100 : Rs. 9,98,304/-”

38. The aforesaid observations have to be read and appreciated in
the backdrop of the categorical testimony of respondent No.1/driver
that the permanent partial disability has rendered him completely
=unfit‘ for seeking employment as a driver. In his cross-examination

except for a bald suggestion by the Authorised Representative (AR) of
the respondent/insurance company that he had not suffered 100% loss
of earning capacity and was not prodded about the nature, extent and
functional handicap due to such injury, there is no gainsaying that a
workman/driver driving a HMV or even for that matter a LMV
(Transport), has to be fully bodily fit. The role of both legs in driving
heavy vehicles is very crucial that needs prompt use of both legs for
the purposes of putting appropriate pressure on the brakes, accelerator
as well as the clutch. The fact of the matter is that respondent
No.1/workman has no prospect of getting any future employment as a
driver.
39. Before parting with this appeal, it would be expedient to
address a new issue raised by the learned counsel for the
appellant/Insurance company in the appeal which was not raised
before the learned MACT to the effect that the driving licence of the
respondent No.1/claimant has since been renewed by the Etawah
Transport Department, Government of Uttar Pradesh, and
computerized print outs of the same has been shown during the course
of arguments evidencing that it was printed on 28.11.2023 at 11.32.31
AM, which evidently shows that he has been granted a driving license
having validity of Non-Transport (NT) from 29.11.2012 to 28.11.2032
and for hazardous transport for the period 21.07.2022 to 20.07.2027.
This aspect was never prodded about in the cross examination of
respondent no.1/claimant. No evidence was produced that the
workman has secured some employment and this Court cannot assume
without tangible evidence that the workman has secured another

gainful employment as a driver and/or running or driving a
HMV/LMV.
40. Be that as it may, this Court cannot take cognizance of this fact,
for which this Court is inclined to concur with the reasons advanced
by Rajasthan High Court in the case of National Insurance
Company Limited v. Rakesh Kumar Saini &Anr.22, whereby
similar plea was rejected holding as under:-

22 S.B. Civil Misc. Appeal No. 1534/2002 dated 21.07.2011

-…Merely by the factum of renewal of license, it could not have
been inferred that the claimant was able to drive the vehicle.
License may have been renewed for various reasons. One may be
able to drive the vehicle for short duration but he is still unable to
drive it for longer duration due to the injuries sustained in the
accident. Thus by merely renewal of the license nothing can be
inferred and no dent is caused in the finding recorded by the
Commissioner, Workmen‘s Compensation..

41. In view of the foregoing discussions, the present appeal is also
bereft of any merits and the same is accordingly dismissed with costs
of Rs.50,000/- that be paid to respondent no. 1/claimant within two
months failing which the appellant/Insurance company shall be liable
to pay the same with interest @ 15% p.a., from the date of this
judgment till realisation.

FAO 305/2022

42. The respondent No.1/workman in the instant matter was
evidently employed as a cleaner and there was no dispute that he
suffered =permanent partial disablement‘ during the course of his
employment. Learned Commissioner in the impugned judgment-cum-

award dealt with the aspect of disability suffered for the purpose of
assessment of compensation as under:

“Relief:
In the claim application the claimant has stated that he was getting
wages Rs. 8,000/- per month plus Rs. 200/- per day as food
allowance. But as per maximum limit prescribed at that particular
point of time, his wages can be taken Rs. 8,000/- per month and
accordingly he wage is taken as Rs. 8,000/- per month. In the claim
application, he has further stated that he was 45 years old at the
time of accident. He was got himself physically examined and
Medical Board of Aruna Asaf Ali Hospital, Delhi. The Medical
Board has assessed him 38% permanent disabled. In his medical
Disability Certificate, his injury has been shown =Left Lower
Limb‘. The documents and the Medical Certificate show that the
claimant may not be able to do any physical work of the nature. In
this regard, the question as to reduction in earning capacity was
argued by both the parties. Ld. Counsel for the claimant argued that
the as the workman was a driver by his occupation which he was
doing prior to the accident, after the accident he is no more in a
position to continue with his occupation this be so this is a case of
100% loss of earning capacity. Finding the nature work, it should
be accepted that it is case of 100% disablement and in this regard
the Ld. Counsel for the claimant has relied on the ruling of the
Hon‘ble Supreme Court of India – Pratap Narain Singh vs.
Srinivasa Sabata cited at 1976 ACJ 141 whereby the Apex Court
has held that the workman was no more in a position do take up
and do that work which he was doing hence the disablement was
assessed 100%. Similarly he has relied on the judgment by the
Hon‘ble Supreme Court in Mohan Soni vs. Ram Avtar & Ors.,
2102 ACJ 583, which holds that the occupation must be considered
while considering the disability. The main operative portion of the
judgment is read as under:-

-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. Take the case of a
marginal farmer who does his cultivation work himself
and ploughs his land with his own two hands; or the puller
of a cycle-rickshaw, one of the main means of transport in
hundreds of small towns all over the country. The loss of
one of the legs either to the marginal farmer or the cycle-
rickshaw –puller would be the end of the road insofar as
their earning capacity is concerned. But in case of a
person engaged in some kind of desk work in an office, the

loss of a leg may not have the same effect..
The Hon‘ble High Court of Delhi in a judgment in New India
Assurance Co. Ltd. Vs. Mohd. Ajmer – FAO 259 of 2013 it has
been ruled that a driver with injury in his leg having disablement to
the extent of 30% is certainly a case of 100% loss of earning
capacity. This is because of the reason that he is no more capable
to drive a transport vehicle.
12. Keeping that in view I hold that the loss of earning capacity
of the claimant is total and accordingly he is entitled to
compensation. In the given wage, age and loss of earning capacity
the applicant/claimant is entitled to compensation as under:
i) Relevant factor of 45 years : 169.44
ii) 60% of wages @ Rs. 8000/pm : Rs.4800/-
iii) Amount of compensation
169.44 X 8000 X 60 : Rs.8,13,312/-
100”

43. Without any further ado, respondent No.1/workman was about
49 years of age at the time of examination before the Court on
15.03.2022. His testimony that he has suffered 100% disability despite
the medical certificate opining disability to be 38% with regard to left
lower limb and his deposition too is uncontroverted and unrebutted
and except for a bald suggestion that he was capable of doing work,
nothing was asked or prodded during his cross-examination. There
was no suggestion that the nature of injuries were as such which
would allow him to seek a better employment elsewhere.
44. In any case, it was a categorical deposition of respondent no.
1/claimant that he was employed in the transport business for more
than 25 years, which was not controverted in any manner. It does not
need divine eyes to appreciate that the nature of duties assigned to a
cleaner are not only multifarious but also random, which inter alia
involves cleaning the body of the truck from outside and inside,
changing tyres while bending on knees as well as lying on the ground,

loading and unloading of goods, mounting on or an jumping out of the
truck, fixing the tarpaulin and assisting drivers on directions so on and
so forth.
45. The respondent No.1/workman is manifestly incapable of
joining the same occupation at the age around 49 years and could only
carry on some other or lesser scale of activities and functions so as to
earn his livelihood. At the cost of repetition, it is the functional
disability that has to be considered in ascertaining the loss of earning
capacity, and mere fact that there is a possibility of change of
occupation or vocation or adoption to earn his livelihood by digging
some other kind of work should not weigh in the mind of this Court.
46. In view of the foregoing discussions, the instant appeal is
dismissed too with costs of Rs.50,000/- that be paid to respondent No.
1/claimant within two months failing which the appellant/Insurance
company shall be liable to pay the same with interest @ 15% p.a.,
from the date of this judgment till realisation
47. All the pending applications in each of the three appeals are
accordingly disposed of.
48. Hence, the entire compensation, if not already released, be paid
to each of the respondents with up to date interest forthwith.

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