M/S. NEW INDIA ASSURANCE CO. LTD. v. SMT. SATYA RANI & ANR.

1. This first appeal is filed under Section 30 of the Employee’s Compensation Act, 1923 (hereinafter referred to as ‘the Act’) impugning the order of the Commissioner dated 7.9.2007 which has assessed the disability as 100% loss of the earning capacity and has granted compensation as per the formula under Section 4(1)(b) of the Act of a sum of Rs.3,67,416/-. 2014:DHC:859

2. Counsel for the appellant argues that as per the disability certificate filed by the respondent no.1, and the applicant before the Commissioner, disability is only shown at 38% with the observation that there is a possibility of improvement and therefore 100% disablement should not have been considered by the Commissioner.

3. In my opinion, the argument urged on behalf of the appellant is misconceived for the reason that as per Section 2(l) of the Act, total disablement means such disablement whether temporary or permanent which incapacitates the employee from the work which he was capable of performing at the time of accident resulting in the disablement. In the present case, it has been established on record that the employee, who was a driver, as a result of the accident received multiple fractures in both his legs, and that too of a person who is 50 years of age. In such a situation, there is 100% disability of the employee so far as the work of driving which he was carrying out, in view of Section 2(l) of the Act. Any doubt, in this regard, is removed by the judgment of the Supreme Court in the case of Pratap Narain Singh Deo Vs. Shrinivas Sabata and Anr. (1976) 1 SCC 289 and which judgment clearly holds that disablement has to be taken as 100% if the insured employee is not able to do the work which he was performing at the time of accident.

4. In view of the above, there is no merit in the appeal, and the same is therefore dismissed, leaving the parties to bear their own costs.

FEBRUARY 13, 2014 VALMIKI J. MEHTA, J. Ne