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2005 DIGILAW 74 (UTT)

United India Insurance Co. Ltd. v. Gopal Singh

2005-03-10

J.C.S.RAWAT, P.C.VERMA

body2005
JUDGMNT 1. This appeal has been preferred by the Insurance Company/Opp. party under Section 30 of the Workmen's Compensation Act, 1923 (in short the Act) against the Judgment and award dated 27.8.1999 passed by Commissioner for Workmen Compensation & Assistant Labour Commissioner (U.P.) Rishikesh (hereinafter referred to as the Commissioner) in WCA Case No.2 of 1999, whereby the Commissioner has ordered the Opp. party No. 2-Insurance Company to pay Rs. 2,63,940/- as compensation to the claimant within a period of 30 days from the date of order, failing which the Insurance Company will also be liable to pay interest at the rate of 12% per annum on the said amount. 2. Brief facts of the case giving rise to this appeal are that injured/claimant was employed under the employment of Opp. party No. 1 in his Mini Truck No. UP 09-161 on monthly salary of Rs.3000/-. On 10.6.1997 during the course of employment the said truck turned turtle due to bursting of front tyre. The claimant-Gopal Singh sustained injuries in this accident and his right hand has become worthless due to said injuries. He has totally lost his capability for driving work. He was 22-year old on the date of accident and now he has become disabled for any work. The injured-claimant filed the petition for compensation against the Opp. parties. 3. The Opp. parties contested the case by filing their separate written statements. The Opp. party No. 1 did not dispute about the said accident, disability of the claimant due to injuries received in the said accident and insurance of the truck. He further pleaded that the offending mini Truck (No. UP 09-161) was insured with the Opp. party No.2-Insurance Company on the date of accident and the whole liability of compensation is of Insurance Company. The Opp. party No.2-Insurance Company in its written statement admitted the insurance of the offending vehicle and denied rests of the allegations of the claim petition due to lack of knowledge. 4. The learned Commissioner, on the basis of the pleadings of the parties, framed necessary issue and after appraisal of the evidence adduced by the parties allowed the petition for compensation accordingly. Feeling aggrieved, the Insurance Company has come up in this appeal. 5. 4. The learned Commissioner, on the basis of the pleadings of the parties, framed necessary issue and after appraisal of the evidence adduced by the parties allowed the petition for compensation accordingly. Feeling aggrieved, the Insurance Company has come up in this appeal. 5. The learned counsel for the appellant contended that as per Sec.2(1)(1) of the Act "total disablement" means such disablement whether of temporary or parmanent nature as incapacitates the workmen for all work which he was capable at the time of the accident but in the present case no such finding has been recorded by the learned Commissioner nor such averment has been made by the claimant/respondent No.1 in his petition and, as such, the learned Commissioner has erred in assessing the compensation payable by holding that the claimant/respondent No. 1 has become totally disabled. He further contended that the case ot1the claimant/respondent No. 1 comes within the definition of "partial disablement" as per Section 2(1)(g) of the Act which lays down that where the disablement is of permanent nature, such disablement reduces his earning capacity in every employment which he was capable of undertaking at that time and as such the learned Commissioner has erred in ignoring the fact that as the aforesaid claimant/respondent No. 1 may have become incapable of performing his driving job but this fact in itself does not mean that he has become incapable of performing every job which he was capable of undertaking at the time of accident. 6. We have gone through the material on record and perused the impugned award. The appellant-Insurance Company itself filed Annexure No.1 to the appeal, which is photostat copy of disability certificate, issued by the Medical Superintendent, Safdarjang Hospital, New Delhi in respect of the claimant Gopal Singh which shows that the disability of the claimant is 40% (forty percent) and permanently he is physically impaired in relation to his right upper limb. The claimant also deposed in his evidence on oath that now he can not drive the vehicle and he is unable to do any work from right hand. The opposite parties did not adduce any evidence in rebutal. Learned counsel for the appellant misinterprets the definition of total disablement. The claimant also deposed in his evidence on oath that now he can not drive the vehicle and he is unable to do any work from right hand. The opposite parties did not adduce any evidence in rebutal. Learned counsel for the appellant misinterprets the definition of total disablement. The definition of "total disablement" given in Sec. 2(1)(1) of the Act reads as under: "total disablement" means such disablement, whether of a temporary or permanent nature, as incapacititatesa workmen for all work which he was capable of performing at the time of the accident resulting in such disablement: [Provided that permanent total disablement shall be deemed to result from every injury specified in Part I of Schedule I or from any combination of injuries specified in Part II thereof where the aggregate percentage of the loss of earning capacity, as specified in the said Part II against those injuries, amounts to one hundred per cent or more;]". 7. It is undisputed that the claimant sustained injuries during the course of employment. He is driver by profession. He has become physically handicapped and his disability is 40% which incapacitates him for all work which he was capable of performing at the time of the accident. We are fortified in our view by the verdict of the Apex Court in the case Pratap Narain Singh Deo versus Srinivas Sabata and another, reported in (1976) 1 Supreme Court Cases, 289 in which the Apex Court affirmed the finding of the trial court that the injury which incapacitated the person from performing all work which he was capable of performing at the time of accident shall be deemed permanent disablement. The learned Commissioner has recorded his finding that the injured workman is driver by profession. By permanent physical impairment to his right upper limb he has evidently been rendered unfit for the work of driver as the work of driver cannot be done by one hand only. In our opinion, the learned Commissioner has not committed any mistake in holding that claimant/petitioner has become incapable for driving the vehicle. The contentions made by the learned counsel for the appellant have no force and are rejected outright. We also find nothing to disagree with the findings regarding determination of compensation of the learned Commissioner. In our opinion, the learned Commissioner has not committed any mistake in holding that claimant/petitioner has become incapable for driving the vehicle. The contentions made by the learned counsel for the appellant have no force and are rejected outright. We also find nothing to disagree with the findings regarding determination of compensation of the learned Commissioner. Considering the entire material, we find that the amount of compensation determined by the Commissioner is just and supported by evidence on record. 8. No other point urged. 9. In view of the foregoing discussion, the appeal is devoid of merit and must fail. 10. The appeal is dismissed. The impugned judgment and award is upheld. No order as to costs.