Judgment:
* IN THE HIGH COURT OF DELHI AT NEW DELHI + FAO No.497/2012 25th February, 2014 % NEW INDIA ASSURANCE CO. LTD. ..... Appellant Through: Mr. Manish Kaushik, Advocate. Versus RAJESH KUMAR KHERWAR AND ANR. ..... Respondents Through: Mr. T. Mitra, Advocate for respondent No.2 CORAM: HON’BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not?. VALMIKI J.
MEHTA, J (ORAL) 1. This first appeal is filed under Section 30 of the Employee’s Compensation Act, 1923 against the judgment of the Commissioner dated 13.9.2012 which has allowed the claim petition of the respondent No.1/herein.
2. The claim petition of the respondent No.1 herein was allowed on the ground that he was working as a Driver with the respondent No.2 herein who admitted the relationship of employer and employee. 5568 on 26.1.2011. As a result of the injury, respondent no.1’s right leg was amputed below the knee. FIR No.19/2011 was lodged in police station Barkhata, Distt. Hazaribagh, Jharkhand with respect to the accident. Commissioner has therefore applied the statutory formula for calculation of compensation, and has accordingly awarded compensation.
3. In the grounds of appeal, it is contended that the Commissioner has wrongly taken disability at 100% although only 50% injury is suffered.
4. The case as set up in the appeal is without any basis because it has been held by the Supreme Court in the case of Pratap Narain Singh Deo Vs. Shrinivas Sabata and Anr. (1976) 1 SCC289 1976 ACJ141that if a person who suffers an accident is unable to perform the duties which he was performing before the disability is caused then the disability is to be taken as 100%. In the present case, respondent No.1 was a driver and he cannot perform the functions of a driver on account of amputation of his right leg below his knee and therefore the case will be of 100% disability. I may also in this regard refer to the Section 2(l) and Section 4(1)(b) of the Employee’s Compensation Act, 1923 as per which the total disablement means such disablement of temporary or permanent nature which incapacitates an employee for doing work which he was capable of performing at the time of accident resulting in disablement.
5. In view of the above, there is no merit in the appeal, and the same is therefore dismissed with costs of Rs.10,000/- to the respondent No.1. Costs be paid within a period of four weeks. FEBRUARY25 2014 Ne FAO No.497/2012