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Rajasthan High Court · body

2014 DIGILAW 1680 (RAJ)

ICICI Lombard General Insurance Company Ltd. v. Amar Singh

2014-10-15

ALOK SHARMA

body2014
JUDGMENT 1. - This civil misc. appeal under Section 30 of the Employee's Compensation Act, 1923 (hereinafter 'the Act of 1923) has been filed against the award dated 30.10.2012 whereby the jurisdictional Commissioner has awarded a sum of Rs. 8,43,219/- to the claimants, constituted of compensation found due to the claimant on account of suffering injuries including amputation of both his legs directly connected to his employment, interest thereon for the period one month following the accident till the date of payment and medical expenses. 2. The case of the claimant before the Commissioner was that he was employed with non-claimant No.2Dilip Singh (hereinafter 'the employer') as a driver on vehicle bearing registration No.RJ-16-P-0166 insured with the appellant-Insurance Company (hereinafter 'the Insurance Company). In the course of his employment on 30.07.2010 he suffered injuries while driving the insured vehicle and lost both his legs to amputation. Stating that he was 45 years old at the time of accident and was drawing Rs. 8,000/- p.m. as salary, the claimant sought compensation plus interest thereon as also reimbursement of medical expenses incurred in the treatment of injuries suffered. The employer admitted the claimant's employment @ of Rs. 8,000/- p.m. but sought absolution of his liability on the ground that the Insurance Company was liable to pay compensation in view of subsisting policy covering the workers. The Insurance Company filed a reply of denial. It raised questions of territorial jurisdiction of the Commissioner and also asserted that there was no evidence on record to establish the alleged relationship of employer and employee between the claimant and the employer/insured. It was also alleged that the mandatory conditions of the policy in regard to the insured vehicle were contravened consequent to which the Insurance Company was liable to be absolved of its liability, if at all, made out. 3. The Commissioner framed five issues and found that the claimant had indeed been employed with the owner of the insured vehicle of which the Insurance Company was the insurer, had in the course of his employment on 30.07.2010 suffered injuries in an accident and lost both legs to amputation. Finding a causal link between the injuries suffered and the employment of the claimant, the Commissioner awarded compensation of Rs. Finding a causal link between the injuries suffered and the employment of the claimant, the Commissioner awarded compensation of Rs. 8,43,219/- finding 100% loss of earning capacity suffered by the claimant owing to the amputation of both his legs as the result of the injuries suffered in the accident of 30.07.2010. Interest on the amount of compensation found payable was awarded for the period one month following the date of the accident till the date of payment. Cost of treatment incurred by the claimant following his accident was also awarded on the basis of evidence on record. 4. Hence this appeal. 5. It has been submitted by the counsel for the Insurance Company that there was no material before the Commissioner either to find employment of the claimant with the owner of the insured bus or for that matter with regard to the claimant drawing Rs. 8,000/- p.m. as salary as driver of the insured vehicle on the date of the accident. It has been also submitted that the Commissioner did not have territorial jurisdiction to address the claim as laid. It was finally submitted that the finding of the Commissioner with regard to the claimant being entitled to compensation computed on the basis of 100% loss of earning capacity was contrary to the provisions of the Act of 1923. 6. I find no substance in the argument of the counsel for the Insurance Company. Both the factum of employment and the salary of claimant are questions of fact which have been found by the Commissioner on the basis of evidence laid before him. I have perused the evidence before the Commissioner on the two aspects and find that the conclusion of the Commissioner thereon cannot even remotely be said to be perverse. There is no good cause for this Court to exercise its appellate jurisdiction against the finding of the Commissioner on the aforesaid questions of fact. It is the established practice of the appellate courts that until the factual conclusions of the trial court/authority on the evidence are found to be perverse, the finding of the trial court/authority on questions of fact ought to be given the greatest regard for the reason that the trial court/authority had the advantage of assessing the witnesses for their credibility in the context of their conduct and demeanour during testimony. In the overall facts of the case, I am of the view that the issue of the Commissioner's territorial jurisdiction is a non-sequitur in the special facts of the case at hand, as the claimant has indeed been seriously injured in the course of his employment. 7. As far as the contention of the counsel for the Insurance Company with regard to the compensation awarded to the claimant being excessive is concerned, I am of the considered opinion that for determination of compensation under the Act of 1923, the loss of earning capacity has to be viewed with reference to the functional disability from the injuries in the context of the nature of the claimant's job. It is an admitted fact in this appeal that resulting from the injuries sustained by the claimant in the accident of 30.07.2010, both his legs had to be amputated. The claimant was admittedly a driver and earing his livelihood in that capacity. Amputation of both the legs quite evidently would render the claimant incapable altogether from earning a livelihood as a driver. The complete functional disability of the claimant for the only vocation he could pursue was therefore 100%. The Hon'ble Supreme Court in the case of Pratap Narain Singh Deo v. Shrinivas Sabata and Anr., [ AIR 1976 SC 222 ] has held that where a carpenter had lost a part of his arm, then irrespective of the loss of earning capacity for amputation of arm with reference to Schedule-II to the Act of 1923, the functional disability of the claimant would be 100% for which he would be entitled to be compensated on the basis of computation based on 100% loss of earning capacity. Similarly in S. Suresh v. Oriental Insurance Co. Ltd. & Anr., [MACD 2010 (1) SC 104 ], the Hon'ble Supreme Court reckoned 100% loss of earning capacity where a driver lost one leg to amputation resulting from injuries in an accident while in employment. 8. The case at hand is quite evidently of the nature if not better than the ones before the Hon'ble Supreme Court in the two cases referred to above. Consequently, I find no substance in the contention of the counsel for the Insurance Company that the determination of loss of earning capacity at 100% where amputation of both the legs of the claimanta driver, was proved was excessive. Consequently, I find no substance in the contention of the counsel for the Insurance Company that the determination of loss of earning capacity at 100% where amputation of both the legs of the claimanta driver, was proved was excessive. The argument is without substance, and untenable and deserves to be rejected. It is so.Consequently, in the overall facts I find no substance in the appeal.The appeal is accordingly dismissed.Appeal dismissed. *******