Delhi Transport Corporation vs Sh. Gian Chand
2014 Latest Caselaw 2267 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO No.130/2014

%                                                   5th May, 2014

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

                          Versus

SH. GIAN CHAND                                      ..... Respondent
                          Through:

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

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

C.M. No.7789/2014 (exemption)

1.           Exemption allowed subject to just exceptions.

             C.M. stands disposed of.

+ FAO No.130/2014 and C.M. No.7788/2014 (stay)

2.           This first appeal is filed under Section 30 of the Employee's

Compensation Act, 1923 (hereinafter referred to as 'the Act') impugning

the judgment of the Commissioner dated 24.2.2014 by which

Commissioner has allowed the claim petition which was filed by the

respondent herein.

FAO 130/2014                                                  Page 1 of 5
 3.            The facts of the case are that the respondent was working

with the appellant/Delhi Transport Corporation as a conductor since

7.4.1982. On 17.3.1997, when the respondent was performing his duty

on route from Delhi to Dadri he received personal injury in an accident

which resulted in multiple fractures in his left leg. As a result of the

accident, the respondent became 41% permanently/totally disabled. The

petitioner was thereafter declared fit for night duty and though his

services were originally terminated, later he was reinstated with full

back wages.

4.            The respondent filed the claim petition for claiming

compensation under the Act on account of the injuries caused by the

accident arising out of and in the course of employment.            The

Commissioner has allowed the claim petition noting that the relationship

of employer and employee is admitted as also the occurrence of the

accident arising out of and in the course of employment. Commissioner

also notes that wages are also admitted.      Finally, for the sake of

completion of narration, it is stated that even the extent of disability

being 41% stands admitted because this averment was made in para 8 of

the claim petition and specifically admitted as correct in para 8 of the

written statement filed by the appellant before the Commissioner. Since
FAO 130/2014                                                Page 2 of 5
 all the aspects requiring grant of compensation stood admitted,

Commissioner applied the statutory formula and awarded compensation

of Rs.90,612/- alongwith interest @ 12% per annum from the date of

accident to the respondent.

5(i)         Learned counsel for the appellant firstly sought to dispute

the aspect with respect to 41% disability of the respondent, however, on

being shown the record that the appellant had in the written statement

specifically admitted the 41% disability, the first argument was not

pressed.

(ii)         At this stage, counsel for the appellant sought to change the

argument to contend that 41% loss of disability will not mean 41% loss

of earning capacity, however when asked to point out whether such a

defence was taken up before the Commissioner, counsel for the

appellant could not point out to this Court any para of the written

statement filed before the Commissioner showing that such a defence is

taken. Therefore, in my opinion, no substantial question of law arises

under Section 30 so far as this argument is concerned, and existence of a

substantial question of law is a sine qua non for an appeal to be

entertained under Section 30 of the Act. I may also note the fact that so

far as 41% disability is concerned, the medical certificate to this effect
FAO 130/2014                                                  Page 3 of 5
 was filed on behalf of the respondent before the Commissioner. The

first argument of the appellant is therefore rejected.

6(i)         The second argument which was urged on behalf of the

appellant was that the interest which has been granted in this case should

not have been granted 30 days after the date of the accident but should

have been granted 30 days after the date of the adjudication of the

Commissioner. In support of this argument, reliance on behalf of the

appellant is sought to be placed upon the judgment of the Supreme Court

in the case of National Insurance Co. Ltd. Vs. Mubasir Ahmed and

Anr. (2007) 1 SCC (L & S) 643.

(ii)         No doubt, the judgment of the Supreme Court in the case of

Mubasir Ahmed and Anr. (supra) does state that interest has to be

granted from 30 days after the date of adjudication and not from the 30

days after the date of the accident, however, I must point out that

counsel for the appellant is not correctly arguing before this Court

because the judgment in the case of Mubasir Ahmed and Anr. (supra)

has been held to be per incuriam in the subsequent judgment in the case

of Oriental Insurance Company Ltd. Vs. Siby George and Ors. (2012)

12 SCC 540 inasmuch as the ratio of Mubasir Ahmed and Anr.(supra)

is contrary to the ratio of a Division Bench of four Judges of the
FAO 130/2014                                                  Page 4 of 5
 Supreme Court in the case of Pratap Narain Singh Deo Vs. Srinivas

Sabata and Anr. (1976) 1 SCC 289 and which Division Bench of four

Judges has held that interest is payable 30 days after the date of accident

and not 30 days after the date of adjudication.

7.           No other issue was urged before this Court.

8.           In view of the above, there is no merit in the appeal, and the

same is therefore dismissed, leaving the parties to bear their own costs.




MAY 05, 2014                                  VALMIKI J. MEHTA, J.

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