Delhi Transport Corporation v. Ram Kanwar

1. This first appeal is filed under Section 30 of the Employees Compensation Act, 1923 (hereinafter ‘the Act’) against the judgment of the Commissioner dated 17.8.2012 which had allowed the claim petition filed 2014:DHC:1560 by the respondent herein and who was working as a Conductor with the appellant. The respondent continues to work with the appellant at the same position after the accident, and there is no loss of pay, however, in my opinion, the respondent is justified in arguing that subsequent employment cannot take away the entitlement to get compensation under the Employee’s Compensation Act, 1923, and which is so stated in the judgment of the Orissa High Court in the case of Executive Engineer, Balasore Electrical Division, Balasore Vs. Commissioner for Workmen’s Compensation-cum- Asstt. Labour Commissioner, Balasore & Anr, 1992 ACJ 633.

2. In the present case, as per the medical certificate, there is a 54% permanent disability. How this physical disability reduces the loss of earning capacity is not found by means of any evidence before the Commissioner or discussion by the commissioner in the impugned judgment. Since injury in the present case does not fall in part I & II of Schedule-I of the Act, the compensation which would be payable under Section 4(1)(c)(ii) will be a percentage of the compensation for permanent total disablement and which is proportionate to the loss of earning capacity. Therefore, loss of earning capacity has to be determined before the percentage can be arrived at of the permanent total disablement for determining the compensation.

3. Learned counsel for the parties at this stage state that the matter be remanded for determining the issue as to what would be the loss of earning capacity on account of injury in question and which be determined by the Commissioner after both the parties are allowed to lead evidence on this aspect.

4. In view of the above, the appeal is allowed and the matter is remanded to the Commissioner by permitting both the parties to lead evidence as to what would be the loss of earning capacity on account of physical disability of 54% caused by the accident to the respondent herein.

5. Parties to appear before the Commissioner on 2nd May, 2014 and the Commissioner will thereafter proceed with the matter in accordance with law and the observations made in the present matter.

6. Dasti to counsel for the parties.

MARCH 21, 2014 VALMIKI J. MEHTA, J. godara