JUDGEMENT

1. This is an appeal preferred under Section 30 of the Employees Compensation Act1 by the appellant/insurance company assailing the impugned judgment dated 27.08.2019 passed by the learned Commissioner, Employee‟s Compensation (South)2 whereby the claimant/respondent No.1 has been awarded total compensation of Rs. 8,28,096/- payable with interest @ 12% per annum within 30 days in case No. CEC/SD/I/65/2018/2986.

2. Shorn of unnecessary details, it is stated that the respondent no.1/claimant was employed as driver on truck bearing No. HR-38X-

6878 which met with an accident when the same was being driven by 1 Act, 1923 2 Commissioner him on 29.03.2018 resulting in injuries to his left leg. The ill-fated truck was evidently insured with the appellant/insurance company and respondent no. 1/claimant was admittedly holding a valid driving licence. Further, respondent No.2 was in agreement with the fact that the injuries sustained by respondent no. 1 were during the course of employment.

3. The claim petition was allowed by the learned Commissioner vide impugned judgment/award, which is assailed in the present appeal primarily on the grounds that the learned Commissioner erroneously considered the physical disability @ 22% in relation to „left lower limb‟ of the respondent No.1/claimant as 100% functional disability and drawing perverse assumptions that respondent no.

1/claimant would be unable to perform his duties as driver. The appellant/ insurance company has relied on proposition of law laid down in the case of Pradeep Mahta v. National Insurance Co. Ltd. & Anr.3 and Reliance General Insurance Co. Ltd. v. Manoj Singh @ Manoj Chandra Wanshi & Anr.4 It was canvassed that the respondent No.1/claimant/injured has made considerable improvements in his working capacity and has otherwise been quite healthy, and therefore, disability could not have been assessed at 100%. ANALYSIS:APPRECIATION OF FACTS &amp; LAW:<br/>

4. I have given my thoughtful consideration to the submissions made by the learned counsel for the rival parties. I have also gone

3 FAO 216 of 2017 dated 16.02.2018 by Delhi High Court

4 FAO 425 of 2016 dated 02.09.2019

through the relevant record of the case including the digitized lower Court record.

5. It is relevant to take note that learned Commissioner based on the pleadings of the parties, framed the following issues for consideration:

“1. Whether there exists employee-employer relationship between Respondent No. 1?

2. Whether the applicant suffered injury in the course of the said employment?

3. If, yes, what relief and what direction is to be passed?”

6. The learned Commissioner conjointly decided the issues No. 1 and 2 and the operative portion of the order in so far as it decides issue No.2 reads as under:-

“11. In view of above discussion it is proved from the statement of Respondent No. 1, documents placed on record regarding treatment of applicant and as no negativity has come out from the cross examination of the applicant and witness done by counsel for respondent no.2, therefore, it is proved that applicant was employed by Respondent No. 1 as a driver and he met with an accident in the course of his employment on 29/03/2018 resulting thereby his left leg was operated and rod was fitted in his left leg and due to this he is unable to perform his duty as a driver which he was doing before the accident as such he has lost his 100% earning capacity. I‟m not in agreement with the assessment done by Aruna Asaf Ali Govt. Hospital Delhi wherein Medical Board assessed 22% only permanent disability. While Ld. Counsel for applicant argued that respondent has become 100% disable for permanent and unable to perform his duty as driver which he was doing before the accident. In this regard Ld. Counsel relied upon the judgement of Hon'ble Supreme Court of India in case titled as Partpa Narayan Singh Deo V/s Sriniwas Sabata and another cited in 1976 ACJ 141. The relevant portion of judgment reproduced as und

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