Delhi Transport Corporation vs Ram Kanwar
2014 Latest Caselaw 1525 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+     FAO No.491/2012 & CMs 20494/2012 (stay), 20495/2012 (delay)

%                                             21st March, 2014

DELHI TRANSPORT CORPORATION          ......Appellant
                 Through: Ms. Manisha Tyagi, Adv.


                          VERSUS

RAM KANWAR                                         ...... Respondent
                          Through:       Mr. P.C.Dogra, Adv.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

CM 20495/2012 (delay)


      For the reasons stated in the application, the delay in filing the appeal

is condoned.

      Application stands disposed of.


FAO 491/2012 & CMs 20494/2012 (stay)

1.    This first appeal is filed under Section 30 of the Employees

Compensation Act, 1923 (hereinafter 'the Act') against the judgment of the

Commissioner dated 17.8.2012 which had allowed the claim petition filed
FAO 491/2012                                                                Page 1 of 4
 by the respondent herein   and   who     was working as a Conductor with

the appellant. The respondent continues to work with the appellant at the

same position after the accident, and there is no loss of pay, however, in my

opinion, the respondent is justified in arguing that subsequent employment

cannot take away the entitlement to get compensation under the Employee's

Compensation Act, 1923, and which is so stated in the judgment of the

Orissa High Court in the case of Executive Engineer, Balasore Electrical

Division, Balasore Vs. Commissioner for Workmen's Compensation-cum-

Asstt. Labour Commissioner, Balasore & Anr, 1992 ACJ 633.

2.    In the present case, as per the medical certificate, there is a 54%

permanent disability.   How this physical disability reduces the loss of

earning capacity is not found by means of any evidence before the

Commissioner or discussion by the commissioner in the impugned

judgment. Since injury in the present case does not fall in part I & II of

Schedule-I of the Act, the compensation which would be payable under

Section 4(1)(c)(ii) will be a percentage of the compensation for permanent

total disablement and which is proportionate to the loss of earning capacity.

Therefore, loss of earning capacity has to be determined before          the




FAO 491/2012                                                              Page 2 of 4
 percentage     can    be arrived at of the permanent total disablement for

determining the compensation.


3.    Learned counsel for the parties at this stage state that the matter be

remanded for determining the issue as to what would be the loss of earning

capacity on account of injury in question and which be determined by the

Commissioner after both the parties are allowed to lead evidence on this

aspect.


4.    In view of the above, the appeal is allowed and the matter is remanded

to the Commissioner by permitting both the parties to lead evidence as to

what would be the loss of earning capacity on account of physical disability

of 54% caused by the accident to the respondent herein.


5.    Parties to appear before the Commissioner on 2nd May, 2014 and the

Commissioner will thereafter proceed with the matter in accordance with

law and the observations made in the present matter.


6.    Dasti to counsel for the parties.




MARCH 21, 2014                              VALMIKI J. MEHTA, J.

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