Mr. Augustine George Masih, J. (Oral):- CM No.4176-CII of 2016 in FAO No. 5111 of 2009

Prayer in this application is for listing the appeal for early hearing.

Notice of the application was issued to the counsel opposite, who states that he has no objection to the prayer made in the application.

Counsel for the appellant informs the Court that the appeal preferred by the respondent against the same award for enhancement of compensation is also pending consideration before this Court in FAO No.4463 of 2010, titled as ‘Bajrangi Parsad Vs. M/s Sunil Spinners’, which may also be taken up for hearing and disposed of together.

In the light of the above, the present application is allowed and both the appeals are taken on board for final disposal.

FAO No.5111 of 2009 and FAO No.4463 of 2010

Challenge in these appeals is to the award passed by the Commissioner under the Workmen’s Compensation Act, 1923, Circle-II, Panipat, dated 12.05.2009, whereby, an application under Section 22 of the Workmen’s Compensation Act, 1923 (hereinafter referred to as ‘1923 Act’), has been allowed assessing the disability of the claimant at 50% loss of earning capacity and the wages as Rs. 4,000/- per month along with interest at the rate of 10% per annum after one month of filing application i.e. from 20.02.2005. 25% penalty of amount of compensation and interest thereon has also been granted. The total amount has been assessed at Rs.4,02,815/- as compensation. Future interest at the rate of 12% per annum has also been granted, in case the compensation amount is not deposited within one month of the passing of the award.

2. Briefly the facts are that the claimant-Bajrangi Parsad was employed as card machine man with the respondent since 01.10.2004. On 25.12.2004, when he was on night duty, at about 7.30 a.m., his right hand came in the machine due to which, his right thumb was amputated. It was asserted that this accident had occurred because of a technical defect in the card machine. Coemployees Vijay Kumar and Udit Sharma took the claimant to Tikku Hospital, Model Town, Panipat, where he was given treatment. An MLR dated 28.12.2004 was got recorded from Civil Hospital, Panipat. The expenses incurred on the treatment was Rs.30,000/- and the wages as claimed was Rs.4,500/- per month. As the employer refused to grant him compensation on his demand, the present claim application was filed.

3. The employer, on the other hand, denied the relationship of employee and employer and also that the accident had taken place in the factory on 25.12.2004, while he was on night duty. The employment qua Vijay Kumar and Udit Sharma with the employer was also denied. However, despite various opportunities granted to the employer, no evidence was led by him.

4. On the other hand, the claimant appeared himself and also produced Vijay Kumar and Udit Sharma, who had taken him to the hospital as also Dr. Ved Prakash Gupta, Senior Medical Officer, Orthopedic, Civil Hospital, Panipat, who had proved the disability certificate issued by the Medical Board to the claimant assessing the disability to be at 15%.

5. It is the contention of the learned counsel for the employer that the assessment of the loss of earning capacity at 50% is on the higher side especially in the light of the fact that the disability certificate only depicts the disability as 15%. In any case, he contends that as per Schedule I Part II Entry 10, the disability could have been at the most assessed at 20%. He contends that no reasoning has been assigned as to why 50% loss of earning capacity has been assessed merely by relying upon the judgment of the Supreme Court in the case of K. Janardhan Vs. United India Insurance Company Ltd. & Anr, AIR 2008 Supreme Court 2384 without there being any evidence on record. He, thus, contends that the award as passed by the Commissioner cannot be sustained and deserved to be modified.

6. Counsel for the claimant, on the other hand, asserts that the award passed by th