The impact of permanent disability on working capacity and the limited jurisdiction of the High Court to reappreciate evidence.

JUDGMENT

1. This appeal has been filed by the appellant-Insurance Company against the judgment dated 02.06.2009 passed by the Court of Commissioner Workmens Compensation, Tonk (for short 'the Commissioner') in case No.WCC NF/37/2005 by which the claim petition filed by the claimant-respondent has been allowed and the appellant-Insurance Company has been directed to pay compensation of Rs.1,30,950/-.

2. In this matter, arguments were already heard on 12.01.2022 and on that date, counsel for the parties sought time to submit brief submissions along with the relevant judgments, in support of their contentions.

3. The main objection of the appellant-Insurance Company in this case is that the claimant sustained 18% disability but the Commissioner has committed illegality in accepting the loss of earning capacity of the claimant to be 28% without there being any medical evidence in support thereof.

4. In support of his contentions, the appellant-Insurance Company has placed reliance on a judgment of National Insurance Company Ltd. Vs. Mubasir Ahmed & Ors. Reported in AIR2007 SC 1208.

5. The other objection raised by the appellant-Insurance Company is that the claim petition filed by the claimant- respondent was not maintainable for want of notice under Section 10 of the Workmen Compensation Act, 1923, as no notice under Section 10 of the Act of 1923 was given to the Insurance Company before filing the claim petition, hence, the Commissioner has committed an illegality in considering this objection raised by the Insurance Company.

6. On the basis of above objections, the Insurance Company has made prayer for quashing and setting aside the impugned judgment and award dated 02.06.2009 passed by the Commissioner.

7. Per contra, learned counsel for the respondent-claimant opposed the objections raised by the Insurance Company and submitted that from bare perusal of the disability certificate (Ex.3) of the injured-claimant, it is clear that he has sustained various grievous injuries including shortening of lower limb and restriction of 15% of hip and knee movement and suffering from pain while cross-sitting, squating and walking, which had seriously affected in functioning of the injured. Learned counsel further submitted that because of the permanent disability, the working capacity of the injured has been affected. So, the Commissioner has not committed any illegality in determining the loss of earning capacity of the claimant to the extent of 28%. Learned counsel for the claimant has placed reliance on the judgment passed by this Court in the case of National Insurance Company Ltd. Vs. Rakesh Kumar Saini in SB Civil Misc. Appeal No.1534/2002 decided on 21.07.2011 and in the case of Reliance General Insurance Company Ltd. Vs. Magan Singh & anr. in SB Civil Misc. Appeal No.4912/2009 decided on 18.05.2011 wherein the co-ordinate Benches of this Court have considered this aspect and treated the disability at the higher side looking to the job of the injured-claimant.

8. Learned counsel for the claimant-respondent further submitted that finding of fact cannot be reappreciated while deciding the appeal against award and in view of the judgment of Hon'ble Supreme Court in the case of "North East Karnatka Transport Corporation Vs. Smt. Sujatha" reported in 2019 (11) SCC 514, the appeal filed against the award passed by the learned Commissioner is not maintainable if any substantial question of law is not involved.

9. Lastly, learned counsel argued that finding of facts have been recorded by the Commissioner and no substantial question of law is involved in this matter and therefore, he prayed for rejection of the appeal.

10. Heard counsel for the parties and perused the record.

11. Bare perusal of the permanent disability certificate of the injured-claimant (Ex.3) clearly indicates that though the permanent disability of the injured has been mentioned as 18% only and at the same time, it has been mentioned in the certificate that because of the injuries