Bajaj Allianz General Insurance Co. Ltd. Vs. Shri Balwan Singh and anr. - Court Judgment

* + IN THE HIGH COURT OF DELHI AT NEW DELHI FAO No.66/2012 and C.M. No.2337/2012 (stay) 15th May, 2014 % BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD. ..... Appellant Through: Mr. Rajat Brar, Advocate. Versus SHRI BALWAN SINGH AND ANR. ..... Respondents Through: Ms. Pratima N. Chauhan, Advocate for respondent No.1. Mr. Hari Kishan, 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, 1930 (hereinafter referred to as ‘the Act’) against the judgment of the Commissioner dated 30.11.2011 by which the Commissioner has awarded the compensation to the respondent no.1 herein on account of an accident arising out of and in the course of employment on 5.5.2008.

2. The facts of the case are that the respondent no.1 was a driver employed with the respondent no.2 herein/employer. Respondent no.1 was employed as a driver on a vehicle bearing No.HR-55E-3713. The vehicle had gone to Kolkatta (Hoogly) from Delhi with spare parts of motor cycles. On its way back from West Bengal it was loaded in jack fruits and the vehicle was bound for Delhi. When the vehicle reached the area of police station Dobi in District Gaya (Bihar) the driver side rear wheel-tyre of the truck got punctured and therefore vehicle was parked on the side of the road. Respondent no.1 was supervising the work of replacement of the tyre by the co-driver. A vehicle which was driven rashly and negligently hit the respondent no.1 and crushed his left leg under the tyre. The respondent no.1 was 40 years at the time of the accident and as a result of the accident he became totally disabled from driving any vehicle. The subject claim petition was filed claiming 100% disability.

3. The respondent no.2 before the Commissioner admitted to the factum of employment and therefore the relationship of employer and employee between the respondent no.2 and the respondent no.1 was proved.

4. I do not agree with the argument urged on behalf of the appellant that the relationship of employer and employee is not proved inasmuch as a reference to para 1 of the written statement filed by the respondent no.2 before the Commissioner shows that the relationship of employer and employee was admitted. Also, respondent no.1 filed a certificate of the respondent no.2 herein before the Commissioner and which proves the employment. This certificate was filed and proved before the Commissioner as Ex.AW1/8. I therefore hold that the Commissioner has committed no illegality and no substantial question of law arises as per Section 30 of the Act to challenge the findings of the Commissioner on the aspect of relationship of employer and employee. 5(i) The second aspect argued before this Court on behalf of the appellant was that the Commissioner has wrongly taken the disability of the respondent no.1 as 100%, inasmuch as, according to the appellant the respondent no.1 has only got injury on his left leg and therefore he can do other work. (ii) In the present case, the injury to the respondent no.1 has caused the respondent no.1 as to be unable to drive a vehicle. The disability certificate filed by the respondent no.1 before the Commissioner is dated 2.11.2010 and which certificate reads as under:

“Reference No.WC/67/NW/09/93 FAO662012 Dated 02.11.2010 Page 3 of 5 This is to certify that Sh. Balwant Singh @ Balwan Singh S/o Shri Sohan Singh, aged 42 years, male, is a case of physical disablement due to the personal injuries sustained by him as a HMV driver while changing the punctured tyre of his HMV truck on road side when he was hit by another HMV which ran over his left ankle and he fell unconscious. He was taken to a hospital in Bihar where he was given first-aid and was brought to Delhi in three days. He was treated at Satyam Hospital, Rohini, Delhi where debridement of the wound was done and discharged after three days with the advice to come after one month for operation on his left ankle joint. Operation on the left ankle joint was performed in Punjab after 1-1/2 months and is taking follow up treatment till today for pain left foot and ankle, pain left leg while walking and pus discharge off and on from scare on left ankle joint. On examination:- He walks with a limp on left side. Hypertrophied scar around left ankle joint with pus discharge present from a small would on the scar. Pitting oedema over left foot dorsum and lower half of left leg. Depression all over anterior aspect of left ankle joint. X-ray left ankle joint dated 24.03.2011 reveals old united fracture of Tibia, Fibula and Tarsal bones with super added Osteomyelitis. The employment of said worker at the time of accident was that of a HMV driver. As explained above, it is obvious that the said Workman cannot drive a HMV as consequence of the said injuries therefore the loss of earning capacity of the said workman is 100% (One Hundred percent) in every employment which he was capable of undertaking at the time of the accident and therefore permanent because he will not be able to drive a HMV in future. Signature of the workman 6. Sd/Dr. K.B. Gupta Certifying Surgeon, North-West District, GNCTD” For the purpose of record, I must state that the disablement certificate which is quoted above, is for some reason not in the record of the Commissioner, however it is the common case of the parties that this was the certificate which was issued by the doctor pursuant to the direction of the Commissioner for examination of the respondent no.1 by the designated hospital.

7. A reading of this disability/medical certificate shows that the respondent no.1 is unable to perform the duties of a driver which he was doing prior to the accident. Once the employee is unable to perform the duty which he was performing before the accident, the case becomes a case of 100% disability in view of the definition of ‘total disablement’ as per Section 2(l) of the Act and so interpreted by the Supreme Court judgment in the case of Pratap Narain Singh Deo Vs. Srinivas Sabata & Anr., 1976 ACJ141 1976(1) SCC289 8. In view of the above, I do not find any substantial question of law arising under Section 30 of the Act for this appeal to be entertained, and the same is therefore dismissed, leaving the parties to bear their own costs. MAY15 2014 Ne FAO662012