Allahabad High Court
The New India Assurance Co. Ltd. vs Vijai And Another on 28 July, 2011
Bench: Satya Poot Mehrotra, Yogesh Chandra Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 40
Case :- FIRST APPEAL FROM ORDER No. - 2572 of 2011
Petitioner :- The New India Assurance Co. Ltd.
Respondent :- Vijai And Another
Petitioner Counsel :- Nagendra Kumar Srivastava
Hon'ble Satya Poot Mehrotra,J.
Hon'ble Yogesh Chandra Gupta,J.
Order on Appeal
It is submitted by Shri N.K. Srivastava, learned counsel for the appellant, that as per the Medical Certificate brought on record before the Workmen's Compensation Commissioner, the disability sustained by the claimant-respondent No.1 was permanent partial disability to the extent of 45% and the injury sustained by the claimant-respondent No.1 was Non-Scheduled Injury. However, the Medical Certificate was silent as regards the loss of earning capacity on account of such disability. It is submitted that as per the provisions contained in Item (ii) of clause (c) of sub-section (1) of Section 4 of the Workmen's Compensation Act, 1923 read with Explanation II to the said clause, it is necessary that the loss of earning capacity should be assessed by a qualified medical practitioner. No such assessment having been made in the present case, the Workmen's Compensation Commissioner acted illegally in assuming the loss of earning capacity as 45% merely on the basis of the Medical Certificate, which was silent as regards the loss of earning capacity.
Having considered the submissions made by Sri N.K. Srivastava, learned counsel for the appellant, we are prima-facie satisfied that the following Substantial Question of Law is involved in the present Appeal:
Whether on the facts and in the circumstances of the case and keeping in view the fact that the Medical Certificate was silent as regards the loss of earning capacity and also keeping in view the provisions contained in Item (ii) of clause (c) of sub-section (1) of Section 4 of the Workmen's Compensation Act, 1923, the Workmen's Compensation Commissioner was justified in law in awarding compensation on the assumption that the loss of earning capacity sustained by the claimant-respondent No.1 was 45% ?
Admit.
Issue notice.
Notice will be issued to the respondents by Registered Post A.D. fixing the next date fixed in the matter.
Order on Stay Application
Issue notice.
Notice will be issued to the respondents by Registered Post A.D. fixing the next date fixed in the matter.
Requisite steps will be taken within three weeks.
Heard on the question of grant of interim relief.
The amount awarded under the impugned Judgment and Order dated 25.05.2011 has already been deposited by the appellant, as is evident from the Certificate filed with the Memorandum of Appeal.
Having regard to the facts and circumstances of the case and having considered the submissions made by Shri N.K. Srivastava, learned counsel for the appellant, it is directed that the operation of the impugned Judgment and Order dated 25.05.2011 will remain stayed until further orders of the Court subject to the following terms and conditions:
(1) 50% of the amount deposited, as mentioned above, will be paid to the claimant-respondent No.1 without furnishing any security.
(2) Balance 50% of the amount of the deposit, as mentioned above, will be invested in maximum interest bearing Fixed Deposit in a Nationalized Bank, renewable from time to time, in the name of the claimant-respondent no.1.
The amount invested in Fixed Deposit as per the directions given above, will not be permitted to be withdrawn by the claimant-respondent no.1 without leave of this Court. However, 50% of the periodical interest accruing on such Fixed Deposit will be permitted to be withdrawn by the claimant-respondent no.1, as and when the same accrues. Balance 50% of the periodical interest accruing on such Fixed Deposit, will continue to be reinvested in such Fixed Deposit.
Counter Affidavit and Rejoinder Affidavit may be exchanged between the parties by the next date fixed in the matter.
List on 22nd November, 2011.
Order Date :- 28.7.2011
NS
