JUDGMENT :

(Kaushal Jayendra Thaker, J.)

1. Heard Sri Ganesh Datt Mishra, learned counsel for the appellant and Sri S.D. Ojha, learned counsel for the claimant.

2. This First Appeal From Order has been filed under section 30 of Workmen's Compensation Act, 1923 ( hereinafter referred to 'Act, 1923') by appellant-G.M. Dugdh Sangh Allahabad, being aggrieved by order dated 28.9.2004 passed by the Workmen's Compensation Commissioner/Assistant Labour Commissioner, Allahabad in WC Case No.46 of 2001 whereby the learned Commissioner has awarded compensation of Rs.1,38,340/- with 9% rate of interest.

3. The facts of the present case are that it has been culled out from the record that the claimants who was employed by appellant met with an accident. On 19.8.199 when the claimant was on job at that point of time he fell down from the staircase of the platform. The claimant/respondent sustained multiple injures on his left lower limb and on his spinal cord was also damaged. The respondent company rushed the claimant to the hospital where the claimant was admitted and continued to be in hospital from 19.8.1999 to 24.8.1999. For a period one month the claimants was advised bed rest. The claimant was 38 years of age and his wages were about Rs.2000/-per month. The doctors opined that there was 60% disability of body. The claimants spent about Rs.15,000/-for medical expenses and claimed Rs.1,15,000/-as loss of wages. On notices being issued the appellant/owner answered the claim application contending that the employee was injured not in the premises but at a tea stall which is located near the factory and, therefore, the claimant was not entitled for any compensation. The claimant examined himself as against this the appellant examined about five witnesses. The appellant contended before the commissioner that in the year 1997 the claimant had sustained injures due to vehicle accident, and the medical certificate produced related to the injures of that time. The claimant in his rejoinder refuted the charge that he was not injured in the premises of appellant. The commissioner did not accept the contention that the injures were caused beyond the factory premises holding that the injury was caused in the factory premises, and accepted the claim petition granting compensation by holding against appellant, as the officer of the factory took him to hospital. The claimant was taken to one Preeti Nursing Home,thereafter taken to Jeevan Jyoti Hospital. The officers who came to depose did not know at what time the accident occurred but out of humanity took the claimant to the hospital. This was the testimony of one of the witness Parth Sarthi for employer/appellant as per medical certificate. The calculation was based on the 60% disability with 9% rate of interest. The Commissioner granted compensation as per schedule.

4. While admitting this appeal and issuing notice, the Court on 1.12.2004 passed the following order :-

“Admit.

Issue notice to unserved respondents only by R.P.A.D. Returnable at an early date.

The substantial question of law, apart from other legal grounds, arising in the appeal is :

(i) Whether the Workmen's Compensation Commissioner committed apparent error of law in awarding the compensation without there being any loss of earning and without probing the actual loss of earning capacity by the claimant/opposite party as required within the meaning of Section -4 (1) (c) (ii) of the Workmen's Compensation Act, 1923 ?

Even though Court was of the opinion that this matter be decided finally on the issue raised by the appellant, learned counsel for the claimant – respondent prays for and is allowed four weeks time to file counter affidavit. Rejoinder affidavit, if any, may be filed within four weeks thereafter.

Stay application shall be listed immediately after expiry of aforesaid period.

Until further orders, the operation of the impugned judgment and award dated 28.9.2004 passed by Workmen's Compensation Commissioner, Allahabad/ Assistant