The central legal point established is that negligence of an employee is not a ground to deny compensation under the Employee’s Compensation Act, and the calculation of compensation should consider the nature of disablement and the employee's capability to carry out work.

Valmiki J. Mehta, J.

1. This first appeal is filed by the insurance company under Section 30 of the Employee’s Compensation Act, 1923 (hereinafter referred to as ‘the Act’) impugning the judgment of the Commissioner dated 25.1.2012 by which the Commissioner awarded compensation to the respondent no.1 herein, petitioner before the Commissioner.

2. The facts of the case are that the respondent no.1 was working with the respondent no.2 herein as a semi skilled worker engaged for replacing the insulator string cross arm of electric tower at Gangrat (H.P). When the respondent no.1 was engaged in his work on 28.9.2008, the electric tower collapsed and consequently respondent no.1 fell down from a height of 20-25 meters and received multiple grievous injuries over his body. Respondent no.1 was taken to S.Karam Singh Memorial Satnam Hospital, Hoshiarpur, Punjab and was given necessary treatment as his condition was critical. Besides the multiple grievous injuries suffered by respondent no.1, he also suffered various fractures including on his hips and left leg which had to be ultimately amputated below the knee. Respondent no.1 was 25 years old at the time of the accident. Respondent no.1 accordingly filed the subject claim petition under the Act.

3. Before the court below, the employment of the respondent no.1 by the respondent no.2/employer was not denied, but it was contended that respondent no.1 suffered injuries on account of his own negligence. Wages of respondent no.1 being Rs.4000/- and that he was a semi-skilled workman as also the expenditure incurred by employer towards medical treatment etc is admitted. Respondent no.2/employer in fact stated that the appellant/insurance company/respondent no.2 before the Commissioner was given appropriate notice by the letter dated 29.9.2008. It was also admitted by the employer that the injuries were caused to the respondent no.1 when he was performing his duties.

4. Appellant-insurance company filed its written statement and claimed that injury was not caused in an accident, though the factum of insurance was not denied. In its written statement, the appellant-insurance company contended that the injuries did not arise out of and during the course of employment and that it did not receive the requisite documents from the employer.

5. I may note that both the respondents before the Commissioner, ie the employer as also the appellant-insurance company, did not lead any evidence whatsoever.

6. Commissioner has given the following findings for holding the employer as well as the insurance company responsible for payment of compensation.

ISSUE NO.2

I have gone through the pleadings and the documents available therein. From the perusal of the reply filed by the insurance company respondent No.2 it is stated that a policy under Workmen’s Compensation Act was issued by them for:-

Supervisor 1

Skilled labour-10

Semi Skilled labour-10

Unskilled labour-05

In the given situation, when the accident and injury during the course of employment are not disputed the liability of respondent No.1 is fastened and when he is with the valid policy of insurance and the insurance company has not come with any exclusion of indemnity the employer and held accordingly. The said issue is decided accordingly.

Issue No.3

In the claim petition it has been stated that applicant was aged 47 years at the time of accident. However in the medical documents it has been shown that he was aged 25 years. In his affidavit he has deposed that he is 26 years. In the disability certificate his age has been shown 25 years. During the arguments it has been stated that there is typographical error in the claim application and his age was 26 years. The rules of pleadings is not applicable in the proceedings under the Act, hence he can have a benefit as provided under Section 22(3) of the act. Accordingly, his age is taken as 25 years. In the claim petition it has been shown that he was drawing wages years. In the claim appl