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2012 DIGILAW 851 (MP)

National Insurance Co. Ltd. v. Kamal

2012-09-03

PRAKASH SHRIVASTAVA

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JUDGMENT : Prakash Shrivastava, J. This appeal under section 30 of the Workmen's Compensation Act has been filed by the insurance company against the award dated 23.8.2005 passed by the Commissioner for Workmen's Compensation, Labour Court, Indore in Case No. 12 of 2000 WC. 2. The respondent No. 1, Kamal, had filed claim before the Commissioner for Workmen's Compensation stating that he was employed as a driver by the respondent No. 2 and on 24.3.1999 while driving the bus he met with an accident and had received injuries and lost his right eye resulting in permanent disability. Hence compensation was claimed. 3. The Commissioner for Workmen's Compensation after considering the evidence led by both the parties reached the conclusion that the respondent No. 1 was employed as a driver with the respondent No. 2 and in an accident caused during the employment he had lost his right eye. It is also found that the respondent No. 1 had become unfit to drive the vehicle in future. The Commissioner found that there was 100 per cent loss of earning capacity of the respondent No. 1. The Commissioner assessed monthly income of the respondent No. 1 at Rs. 2,000 and found age of the respondent No. 1 as 32 years and accordingly awarded the compensation of Rs. 2,44,620. The Commissioner directed that if the compensation is not deposited within sixty days, then the insurance company will pay interest at the rate of 9 per cent from the date of accident till deposit of the amount. 4. This court vide order dated 4.12.2007 had admitted the appeal on the following substantial question of law : "Whether the Commissioner was justified in holding the disability at 100 per cent when as per Entry 26, Part II of Schedule I of the Work-men's Compensation Act, the disability sustained by the claimant was 30 per cent?" 5. In the present case from the medical evidence on record it is clearly established that the respondent No. I has completely lost his vision of the right eye. At the time of accident the respondent No. 1 was employed as a driver and on account of loss of vision of the right eye he has become unfit to perform the work of the driver. The respondent No. 1 in his statement before the Commissioner has stated that after the accident he was not doing any work. PW 2, Dr. The respondent No. 1 in his statement before the Commissioner has stated that after the accident he was not doing any work. PW 2, Dr. B.L. Gupta, has also stated that the respondent No. I will not be able to do driving work in future and he has become completely unfit for the driving work. The Division Bench of this court in the matter of Oriental Insurance Co. Ltd. v. Mani Ram, 2003 ACJ 1181 (MP), has taken a view that the disability is to be adjudged as to the work employee was performing before accident. In that case the employee was the conductor at the time of the accident and the doctor had opined that he had become unfit for the work of conductor and the Division Bench of this court had taken a view that earning capacity of the employee was affected to the extent of 100 per cent. In the matter of Bharat Singh v. Pluton Cement Pvt. Ltd., 1999 ACJ 496 (MP), this court in a case of loss of two phalanges of index finger and middle finger, considering the loss of earning capacity and the fact that the employee could not continue in his vocation which he was doing at the time of the accident, accepted the disability to be 100 per cent rather than lesser disability certified by the doctor. 6. The Supreme Court in the matter of Pratap Narain Singh Deo v. Shrinivas Sabata, 1976 ACJ 141 (SC), in a case of amputation of left arm above elbow of a carpenter has taken a view that disablement was total and not partial as the work of carpentry could not be done by one hand only. 7. Andhra Pradesh High Court in the matter of Rayapati Venkateswara Rao v. Mantai Sambasiva Rao, 2001 ACJ 2105 (AP) and Karnataka High Court in the matter of Hanumantha Gowda v. Devaraju, 1996 ACJ 1253 (Karnataka), have also taken the similar view. 8. Keeping in view the aforesaid position of law it is held that the Commissioner was justified in holding the disability to be 100 per cent. In the facts of the present case, keeping in view the nature of work respondent No. 1 was performing, the disability suffered by him will not be 30 per cent as provided in Entry 26, Part II of Schedule I of the Workmen's Compensation Act. 9. In the facts of the present case, keeping in view the nature of work respondent No. 1 was performing, the disability suffered by him will not be 30 per cent as provided in Entry 26, Part II of Schedule I of the Workmen's Compensation Act. 9. Respondent No. 1 has also filed a No costs. cross-objection, which raises the question of law in respect of the payment of interest. The Commissioner has not awarded any interest but has directed that if the compensation amount is not deposited within sixty days, then the insurance company will pay interest at the rate of 9 per cent from the date of accident till deposit of the amount. Such a view of the Commissioner is not correct. In view of the judgment of this court in the matter of National Insurance Co. Ltd. v. Najma, 2011 ACJ 2047 (MP), the judgment of Himachal Pradesh High Court in the matter of Divisional Forest Officer, Karsog v. Budhi Singh, 2006 ACJ 1851 (HP) and the judgment of Andhra Pradesh High Court in the matter of Nanu v. Ghouse Rlohinuddin, 2006 ACJ 1885 (AP), the respondent No. 1 is entitled for interest on the amount awarded by the Commissioner at the rate of 12 per cent from the date of accident till realization. 10. In view of the aforesaid the appeal preferred by the insurance company is dismissed and the cross-objection is partly allowed to the extent indicated above.