The main legal point established is that the assessment of loss of earning capacity should be proportionate to the nature of the disability, as per Section 4 of the Workmen's Compensation Act, 1923.

JUDGMENT

Bharati Dangre, J. - The appellant is the original claimant who filed application (ECa) 401/C-131/2017 before the Commissioner under the Employees Compensation act and the Labour Court, Mumbai, seeking compensation for injuries sustained by him in an accident which occurred during the course of his employment with respondent no.1 aSR Construction Co, claiming that the accident resulted into 100% loss of his earning capacity, and hence he is entitled for compensation of Rs.10,55,760/- along with interest at the rate of 12% and penalty.

2 On 4/7/2019, the learned Commissioner partly allowed his application and held him entitled for compensation of Rs.3,16,728/- along with interest @ 12% p.a. from 30/4/2017 till its realization. He is also held entitled for penalty of Rs.10,000/-and medical expenses of Rs.1,57,770/-. His employer and the Insurance Company were directed to jointly and severally deposit the amount of compensation along with interest of 12%. The employer was directed to deposit interest on the amount of compensation from the date of accident i.e. 30/4/2017 till 19/12/2017 and the insurer is directed to deposit interest from 20/12/2017 till its realization. Penalty of Rs.10,000/- is levied on employer, whereas the medical expenses are directed to be paid jointly and severally by respondent nos.1 and 2.

3 The appellant is aggrieved by the impugned order, since according to him, the Commissioner has erred in holding that 68% of physical disability of the claimant has resulted into 30% functional disability, which is not borne from the evidence placed before him. The appellant has instituted the appeal on the ground that the Commissioner has failed to consider that the claimant is driver by occupation and he cannot drive any vehicle in future and therefore, the loss of earning capacity is to be computed at 100%. Further, the income of the appellant which is taken as Rs.8,000/- in absence of any documentary evidence, is also pleaded to be an erroneous computation, when the appellant has deposed that he was being paid Rs.10,000/- per month by respondent no.1 and this factum was not denied by the employer either by filing the written statement or cross-examining the claimant.

4 I have heard advocate amol Gatne for the appellant and Shri Dange for the respondent no.2 Insurance Company.

5 The appeal raises the following substantial questions of law :-

"Whether the physical disability of the claimant working as a driver being certified as 68%, would amount to 100% loss of earning capacity, particularly on being declared that he will not be in a position to drive a vehicle in future'

6 The respective counsel argued on the aforesaid substantial question of law and since the parties proceeded to argue the appeal finally, the appeal is admitted on the aforesaid question of law and taken up for final hearing.

7 The Record and Proceedings produced, reveal that in the Claim application filed before the Commissioner/Labour Court, the claimant pleaded that he was employed as a driver of vehicle bearing no. MH-04-DD-9287 and on 30th april 2017, at about 15.00 hrs, while he was enroute to Chiplun from Ratnagiri, near Bhav river at village Nivali, the vehicle which he was driving, met with an accident since the brakes of the vehicle stopped functioning. In the accident, he sustained serious injuries and was offered treatment in KEM hospital and thereafter, he was shifted to a nursing home in Reva (Madhya Pradesh) his home town, where he continued to be admitted from 4.5.2017 to 5.7.2017. In the application, he pleaded that at the time of accident, he was aged 23 years and was drawing a salary of Rs.10,000/- per month. Due to accidental injuries, he claimed to have lost 100% of his earning capacity and therefore, claimed compensation of Rs.10,55,760 along with 12% interest, penalty and actual medical expenses incurred.

8 The employer being served, respondent no.1 failed to appear in the matter and therefore, the Commissioner proceeded ex-