New India Assurance Co. Ltd. vs Rajesh Kumar Kherwar And Anr.
2014 Latest Caselaw 1038 Del

*              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.

Respondent No.1 had suffered injuries while driving the vehicle HR-38J-
FAO No.497/2012                                                Page 1 of 3
 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 SCC 289: 1976 ACJ 141 that

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.
FAO No.497/2012                                                Page 2 of 3
 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.




FEBRUARY 25, 2014                           VALMIKI J. MEHTA, J.

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