Back
2022 Supreme(HP) 729
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
SATYEN VAIDYA, J.
National Insurance Company Ltd. - Appellant
Versus
Govind Ram and Another - Respondents
FAO No. 453 of 2014
Decided On : 23-11-2022
For the Appellant : Mr. Deepak Bhasin.
For the Respondent: Mr. Vijay Chaudhary.
Point of Law: Sub-Section 2-A of Section 4 of the Act employee became entitled to reimbursement of actual medical expenses incurred by him for treatment of injuries caused during course of employment.
Headnote:
Employees Compensation Act,1923 - Section 4(c)(ii), (2-A ) - Accident - Compensation - Application claimed compensation on account of injuries and disability suffered by him while driving Bus in course of his employment as driver for respondent No.2 – Disability of claimant will definitely affect his working capacity and in private service. [Para 10]
Finding of the Court: Evidence on record suggests that right leg of claimant has been shortened by two inches - Disability of claimant will definitely affect his working capacity and in private service, normally, income is commensurate with working capacity of a person - Thus, no fault can be found with amount of compensation awarded to claimant by learned Commissioner, which has been found to be in accordance with Section 4(c) (ii) of Act - It is more than settled that cause of action for filing claim petition under Act arises on date of accident, therefore, compensation also becomes payable on date cause of action arise and as necessary corollary interest under Act also becomes payable from same date - Impugned award, passed by learned Civil Judge, Court No.1, is set aside to extent it awarded a sum on account of reimbursement of medical expenditure.
Result: Appeal partly allowed.
JUDGMENT :
Satyen Vaidya, J.
Heard.
2. This is an appeal filed by insurer against the award dated 04.06.2014, passed by learned Civil Judge, Court No. 1, Mandi, H.P., in case No. 49/2010, under the provisions of Employees Compensation Act,1923 ( for short the ‘Act’ ).
3. The claimant by way of an application under the Act, claimed compensation on account of injuries and disability suffered by him while driving Bus No. HP.31-4425 in the course of his employment as driver for respondent No.2. The accident had taken place on 30.04.2007, at about 3:45 PM, at place Gutkar on Sundernagar Mandi, Highway. The claimant was referred to I.G.M.C. and Hospital Shimla, for treatment. He remained as indoor patient from 01.05.2007 to 17.05.2007 and 04.06.2007 to 10.07.2007. Documents Ext. PW2/J and PW2/K are the discharge slips issued by I.G.M.C., Shimla. The claimant has suffered multiple fractures in right leg. He was subjected to surgical intervention and his leg was protected with the help of implant. Finally, the disability of the petitioner was assessed at 20%. Claimant had also suffered shortening of leg by two inches.
4. The owner of the vehicle admitted the factum of claimant having received injuries during the course of his employment. It was admitted that claimant was being paid Rs.5,000/-per month by the employer.
5. The insurer contested the claim of the claimant on the grounds of breach of policy. His employment under respondent was also denied.
6. Learned Commissioner framed the following issues:-
“1. Whether the accident of applicant Govind Ram took place during the course of employment as driver of respondent No.1, as alleged? OPP
2. Whether the applicant received multiple grievous injuries in the said accident, as alleged/OPP
3. Whether the applicant is entitled for compensation, as prayed for ? OPP
4. Whether the petition is not maintainable/OPR
5. Whether the applicant was not holding a valid and effective driving license at the time of accident, as alleged/OPR
6. Relief.”
7. Claimant examined three witnesses including himself. PW-2, Dr. Sandeep Vaidya, proved disability of claimant to be 20% in relation to right lower limb.
8. Learned Commissioner awarded a sum of Rs.1,01,664/- in favour of the claimant. In addition, a sum of Rs.45,926/- was also awarded on account of reimbursement of medical expenses. The awarded amount was ordered to be paid alongwith interest @ 12% per annum w.e.f 30.05.2007. The liability to pay the awarded amount was fastened on the insurer.
9. Learned counsel for the appellant/insurer has taken exception to impugned award on two grounds, firstly, that the loss of earning capacity of claimant had not been proved and secondly, learned Commissioner had erred in granting the medical expenditure of Rs. 45,926/- in favour of the claimant, without their being any provisions for such grant available in the Act at the relevant time.
10. As regards first contention raised on behalf of the appellant/insurer, there appears to be no justification in interfering with the award passed by learned Commissioner. It is relevant to notice that the claimant had been declared permanently disabled to the extent of 20% vide disability certificate, Ext. AW1/A. PW-2, Dr. Sandeep Vaidya, has also proved the said factum, though, in his statement recorded before learned Commissioner. PW-2 stated that the disability was qua the right lower limb of the claimant. As a matter of fact, there is no evidence on record in respect of the loss of earning capacity of the claimant. Learned Commissioner, by taking into consideration 20% disability of the claimant considered the loss of earning capacity to same extent i.e. 20%. Such finding of learned Commissioner cannot be said to be illegal or perverse. Claimant, undisputedly, was a driver by profession engaged by a private transport operator. He was driving heavy vehicle. Evidence on record suggests that right leg of the claimant has been shortened by two inches. The disability of claimant will definitely
