New India Assurance Company Ltd v. Waseem Akram @ Waseem Khan & Anr

1. The present appeal, filed under Section 30 of the Employees' Compensation Act, 1923 (hereinafter referred to as the ‘EC Act’), assails the award dated 26.06.2019 passed by the learned Commissioner for Employees' Compensation. The challenge is confined to the finding whereby the appellant's 42% permanent physical disability has been treated as 100% loss of earning capacity.

2. Briefly stated, the claimant was employed as a cleaner on truck bearing registration No. HR-55M-3085. On the intervening night of 08/09.02.2018, while the vehicle was travelling from Nagpur to Delhi, it met with an accident near KuraiGhaat, Seoni, Madhya Pradesh, resulting in grievous injuries to the claimant, particularly to both his lower limbs. The disability certificate issued by the Medical Board of Aruna Asaf Ali Government Hospital assessed his permanent physical impairment at 42% in relation to both lower limbs. The condition was stated to be not likely to improve and no reassessment was recommended.

3. Learned counsel for the appellant contends that the learned Commissioner erred in treating 42% permanent physical disability as 100% loss of earning capacity. He submits that despite the injuries, the claimant is capable of pursuing some vocation and, at best, his loss of earning capacity could be assessed at 50%. However, learned counsel is unable to substantiate the basis for assessing the loss of earning capacity at 50%.

4. The claimant, on the other hand, has categorically stated that he was employed as a cleaner and, owing to the injuries sustained in both lower limbs, is no longer capable of performing the duties attached to his vocation. The nature of work of a cleaner on a commercial vehicle necessarily involves physical activities, including mounting the vehicle, attending to punctures, handling tyres, ropes and tarpaulin and performing other allied duties.

5. Notably, the Medical Board assessed the claimant as suffering from 42% permanent physical impairment in relation to both lower limbs. The learned Commissioner, considering the nature of the claimant's employment and the functional impact of the injuries, concluded that the loss of earning capacity was total. While arriving at the said conclusion, reliance was placed on the decisions of this Court in National Insurance Company v. Pappu&Anr.[1] and of the Andhra Pradesh High Court in RayapatiVenkateswara Rao v. MantaiSambasiva Rao &Anr.2, which also concerned workmen employed as cleaners. FAO 289/2004 II (2001) ACC 300

6. At this stage, it is apposite to note that physical disability and loss of earning capacity are distinct concepts. The percentage of permanent physical disability assessed by a Medical Board cannot, by itself, be determinative of the loss of earning capacity, which has to be considered with reference to the nature of work performed by the employee. The Supreme Court in Pratap Narain Singh Deo v. Srinivas Sabata[3], has recognised that where an injury renders an employee incapable of performing the work which he was capable of performing at the time of the accident, the loss of earning capacity may be treated as total.

7. Further, the scope of an appeal under Section 30 of the EC Act is limited. Under the scheme of the Act, the Commissioner is the final authority on facts and an appeal lies only on a substantial question of law. Reference in this regard may be made to GollaRajanna&Ors. v. Divisional Manager &Anr[4].

8. In the present case, the learned Commissioner, upon considering the nature of the claimant's employment as a cleaner, the permanent impairment affecting both lower limbs and the duties ordinarily required to be performed by him, assessed the loss of earning capacity at 100%. The appellant has failed to demonstrate any perversity in the said finding. The mere fact that the claimant may theoretically be capable of pursuing some other vocation cannot, by itself, warrant interference with the assessment of loss of earning capacity qua the employment in which he was engaged at the time of the accident.

9. Consequently, this Court finds no ground to interfere with the findings of the learned Commissioner. No substantial question of law arises for consideration.

10. Accordingly, the present appeal is dismissed along with the pending application.

11. It is informed that the awarded amount has already been released to the claimant.

MANOJ KUMAR OHRI (JUDGE) JULY 10, 2026