The court emphasized the requirement for assessment of loss of earning capacity by a qualified medical practitioner as provided under Section 4(1)(c)(ii) of the Workmen's Compensation Act, 1923.

JUDGMENT :

1. The present appeal under Section 30 of the Workmen's Compensation Act, 1923 (re-named as the Employee’s Compensation Act, 1923 and hereinafter referred to as Act, 1923) has been filed by the Insurance Company against the judgment and award dated 22.09.2005 passed by the Workmen's Compensation Commissioner in Workmen Compensation Case No.137/W.C.A/2004 (Arvind Kumar Pandey Versus Rajesh Rastogi & another).

2. The claimant is the opposite party no.1 in the present appeal and the employer is the opposite party no.2.

3. The facts of the case are that the claimant/opposite party no.1 instituted Case No.137 of 2004 alleging that he was employed as driver by the opposite party no.2 and suffered injuries in an accident which arose out of and in the course of his employment with opposite party no.2 while he was driving the Jeep (bearing Registration No. U.P-24/A/1399) owned by the opposite party no.2. It was stated in the claim petition that the right leg and the right hand of the applicant was fractured and his right eye was also injured as a result of which the applicant was disabled. It was further stated in the claim petition that the claimant was employed on a salary of Rs.4000/-per month and was additionally paid Rs.50/-per day as food allowance. On the aforesaid pleas, the claimant claimed compensation under the Act, 1923.

4. The employer and the Insurance Company/appellant contested the claim petition and filed their written statements. In his written statement, the employer admitted the accident and the salary of the claimant as well as the allowance as stated by the claimant. In his written statement, the employer also pleaded that the claimant had a valid driving licence and therefore, the Insurance Company was liable to pay compensation.

5. In Case No.137 of 2004, the Commissioner, Workmen’s Compensation framed five issues. Issue no.1 was as to whether the claimant was employed as driver by the opposite party no.2 and whether the claimant suffered injuries in the accident which arose out and in the course of his employment and also as to the loss in the earning capacity of the claimant. Issue no.2 was as to whether the vehicle i.e., Jeep (bearing registration no. U.P -24/A/1399) was insured with the appellant. Issue no.3 was regarding the allowances paid to the claimant by opposite party no. 2 and the age of the claimant. Issue No.4 was as to whether at the time of accident, the claimant had a valid driving licence. Issue no.5 was as to whether the claimant was entitled to any compensation and the amount of compensation payable to the claimant.

6. The Commissioner decided Issue No.1 in favour of the claimant. The Commissioner held that the claimant was employed with opposite party no. 2 and was injured in an accident which arose out of and in the course of employment of the claimant with opposite party no.2. Issue no. 2 was decided in favour of the insured and the Commissioner has held that the vehicle was insured with the appellant. On issue no.3, the Commissioner held that the claimant had not been able to prove his salary as claimed in the claim-petition and therefore, compensation, was to be determined on the basis of minimum wages payable at the relevant time, i.e., Rs.2966/-per month. The Commissioner also held the age of the claimant to be 34 years on the basis of his date of birth as recorded in the driving licence. On Issue no.4, the Commissioner, held that at the time of accident, the claimant had a valid driving licence. So far as Issue no.5 is concerned, the Commissioner, relying on the disability certificate issued by the Chief Medical Officer, held that because of the accident, the claimant had suffered 65% disability and determined the loss of earning capacity of the claimant as 100% because of the physical disability suffered by him. On the aforesaid reasoning, the Commissioner awarded a compensation of Rs.3,54,852/-to the claimant. Hence, the present appeal under Section 30 of the Act.

7. The appeal