Bajaj Allianz General Insurance ... vs Shri Balwan Singh And Anr.
2014 Latest Caselaw 2448 Del

*             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.




FAO 66/2012                                               Page 1 of 5
 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

FAO 66/2012                                                 Page 2 of 5
 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              Dated 02.11.2010
FAO 66/2012                                                  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.
                                               Sd/-
     Signature of the workman                  Dr. K.B. Gupta
                                               Certifying Surgeon,
                                               North-West District,
                                               GNCTD"

6.             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


FAO 66/2012                                                    Page 4 of 5
 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

ACJ 141; 1976(1) SCC 289.

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.




MAY 15, 2014                                         VALMIKI J. MEHTA, J.

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