New India Assurance Co. Ltd. v. Dev Raj Joshi

1. This first appeal is filed by the insurance company against the judgment of the Commissioner dated 30.4.2011 which has allowed the claim petition filed by the respondent claiming compensation on account of injuries suffered in an accident arising out of and in the course of employment.

2. Respondent herein was employed as a driver of the truck bearing registration HR-55D-5457 belonging to respondent no.2 herein. On 21.1.2009 when the subject vehicle was on its occupational trip from Garh Devi, Surat to Delhi, it met with an accident at about 8.00 AM when the 2014:DHC:2367 vehicle was under the jurisdiction of the police station Modasa Rural. The accident took place as a result of another vehicle coming from the opposite direction and ramming into the subject vehicle. FIR was registered in police station Modasa Rural, district Sabarkanta. Appellant suffered grievous injuries in his leg which was operated upon and a rod and a plate were affixed in his leg and also skin grafting was done. Respondent no.1 was about 30 years of age at the time of the accident.

3. Respondent no.2-employer filed his written statement before the Commissioner and admitted the factum of employment as also the accident. The employer also stated that the aspect with respect to the accident was informed to the insurance company and it was requested to process the case without any delay.

4. Before the Commissioner the appellant was respondent no.2, and in spite of the fact the employer admitted to the accident, copy of the FIR was filed besides also the requisite medical certificate with respect to the injury was filed, yet, insistence was made by the appellant for evidence to be led for the quantum of injury. Consequently, the respondent no.1 was asked by the Commissioner to personally appear before him and which he did and the injury of the respondent no.1 to his right leg below the knee was witnessed. Appellant-respondent no.2 still insisted for examination of the doctor Sh. K.B.Gupta who had issued certificate of loss in earning capacity and who was summoned and thereafter cross examined on behalf of respondent no.1.

5. The only argument urged before this Court on behalf of the appellant was that the employee could not have been granted compensation taking the disability as 100%.

6. The argument urged on behalf of the appellant is, if I can say so too late by 36 years because way back in 1976 a Division Bench of four judges of the Supreme Court in the case of Pratap Narain Singh Deo Vs. Srinivas Sabata and Anr. 1976 ACJ 141 has held that once an employee is incapable of performing work which he was performing before the accident, the case will be of 100% disability. I may note that the definition of ‘total disablement’ under Section 2(l) of the Act specifically states that total disablement means that such disablement, whether of a temporary or permanent nature, which incapacitates an employee for all work which he was capable of performing at the time of accident resulting in such disablement. Surely, respondent no.1 in this case, and who was a driver, would not be given a driving licence in view of the condition of his leg and accordingly the present case is clearly a case of total disablement and fully covered by the ratio of the judgment in the case of Pratap Narain Singh Deo (supra).

7. No other issue or aspect is urged before this Court.

8. There is hence no merit in the appeal, and the same is therefore dismissed, leaving the parties to bear their own costs. MAY 05, 2014 VALMIKI J. MEHTA, J. ib