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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
SATYEN VAIDYA, J.
Sh. Meena Ram, S/o. Sh. Fekru Ram - Appellant
Versus
Sh. Vinay Nanda, S/o. Sh. P.L. Nanda & Ors. - Respondents
FAO (WCA) No. 279 of 2012
Decided On : 08-10-2021
Employees Compensation Act, 1923 – Section 4A (b), 2(1) (l) - Total disablement - Appellant was employed as driver by respondent No.1 to drive a bus - During course of his employment with respondent No.1, the bus owned by respondent No.1 met with an accident while being driven by appellant - Appellant suffered multiple injuries - His right arm got seriously fractured, resulting in permanent disablement to extent of 40% to appellant - Whether Commissioner below has wrongly assessed income of appellant and erred in awarding penalty against respondents - Whether injury sustained by appellant/claimant to extent of 40% disability which renders him incapable of performing his employment can be determined as 100% functional disability – Held, appellant having suffered loss of earning capacity to extent of 100% was entitled for grant of compensation as per Section 4 (1) (b) of the Act - 60% of monthly income of appellant was to be multiplied by the relevant factor which in this case would on basis of age of the appellant being 41 years - Appellant was, therefore, entitled to a compensation on the date of accident - Since the petitioner was not paid due compensation within reasonable time, he is entitled to interest @ 12% per annum on aforesaid compensation amount with effect - till date of actual payment - In addition, appellant is also entitled to penalty as quantified - It has been contended on behalf of respondent No.2 that as per statement of PW-3, appellant could drive light motor vehicle and that would include commercial vehicle also, hence appellant cannot be said to have lost earning capacity to extent of 100%. This argument deserves rejection for reason that statement of PW-3 could not be construed in manner as suggested on behalf of respondent No.2 (Insurer). Firstly, appellant used to earn his livelihood by driving commercial heavy vehicle and secondly there is lot of difference in driving commercial vehicle and private vehicle. For driving commercial vehicle one needs to have lots of endurance and physical capacity as one has to work for long and even at odd hours whereas one can drive a private vehicle at leisure and according to one’s convenience - Above all, PW-3 has specifically stated that appellant could not drive commercial vehicle which would include light commercial vehicle also - Appeal disposed of.
JUDGMENT :
By way of instant appeal, appellant has assailed award dated 08.06.2012 passed by the Commissioner under Employees Compensation Act (for short ‘Commissioner’) in Case No.9-2 of 2011/2008.
2. Appellant was employed as driver by respondent No.1 to drive a bus. During the course of his employment with respondent No.1, on 02.05.2007, the bus owned by respondent No.1 met with an accident while being driven by the appellant. Appellant suffered multiple injuries. His right arm got seriously fractured, resulting in permanent disablement to the extent of 40% to the appellant.
3. Appellant approached the Commissioner for award of compensation under the Employees Compensation Act (for short ‘Act’). His specific case was that though the disability suffered by appellant was assessed at 40% but due to the nature of the injuries/disability, he was unable to drive the commercial vehicle, therefore, his loss of earning capacity was to the extent of 100%. His plea before the Commissioner was that he was paid Rs.5000/- per month as salary, besides Rs.100/- per day as daily allowance. As per appellant, his age was 41 years at the time of accident. He accordingly prayed for grant of Rs.6,00,000/- as compensation alongwith interest and penalty.
4. Respondent No.1, being owner of the vehicle, contested the petition on the grounds that he had suitably compensated the appellant immediately after the accident and, as such, he was estopped from filing the petition. The factum of employment of appellant as also the accident was not denied. It was, however, denied that the appellant had been totally disabled from being driving the vehicle. It was stated that the salary of appellant was Rs.3500/- per month and there was no allowance paid to the appellant in addition to the salary.
5. Respondent No.2 being insurer of the vehicle vide its separate reply has denied each and every averment made by the appellant. Respondent No.2 had raised specific objection that the person driving the vehicle at the time of accident was not holding valid and effective driving licence. The vehicle was being driven in violation of terms and conditions of the insurance policy. The petition was termed to be collusive between the appellant and respondent No.1.
6. On the pleadings of the parties, the following issues were framed on 06.08.2009 :
2. Whether the petition is not maintainable in this form? OPRs
3. Whether the petitioner is estopped from filing the present petition due to his own acts, deeds and conduct? OPRs
4. Whether the petitioner has been duly compensated immediately after the accident by respondent No.1? OPR-1.
5. Whether the vehicle in question was driven in violation of terms and conditions of the Insurance Policy? OPR-2.
6. Relief.
7. The Commissioner decided issue No.1 in affirmative and all other issues were decided in negative. An award of Rs.1,74,115.20 alongwith interest @ 12% per annum w.e.f. 2.6.2007 was passed. The Commissioner assessed the above said compensation by taking total wages of the appellant as Rs.7500/- per month, but confined the same at Rs.4000/- per month for the purposes of assessment of compensation in accordance with the provisions of Section 4A of the Act as it stood on the date of accident. The disability was assessed at 40%. By application of relevant factor, the sum was adjudged in the aforesaid terms.
8. Aggrieved against the award passed by the Commissioner, the appellant has assailed the same primarily on the grounds that the restriction of income at Rs.4000/- per month by the Commissioner was against the law as the cap of Rs.4000/- per month fixed under Section 4A of the Act was removed in the year 2010 and secondly that the appellant had suffered loss of 100% earning capacity as he was not able to drive the commercial vehicle much less the bus.
9. Initially, the appeal was admitted on 17.07.2012 on a single substantial question of law as
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