Serial No.78

HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT JAMMU

Pronounced: 25.08.2021.

MA No. 256/2015

Oriental Insurance Co. Ltd …Appellant(s)

Through:- Mr. Divyanshu Malhotra, Advocate.

v/s

Bashir Ahmed and others …Respondent(s)

Through:- Mr. Bari Abdullah, Advocate.

Coram: HON’BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

ORDER

1.

Award dated 30.09.2015, passed by the Assistant Labour

Commissioner, Ramban (for brevity “Commissioner”) in favour of

respondent No. 1 under Workmen’s Compensation Act 1923 (for short “the

Act”) is under challenge in the instant appeal filed under Section 30 of the

Act by the appellant.

2.

The brief facts emerging from the appeal would reveal that the

claimant/respondent No. 1 herein, sustained injuries to his right leg while

cutting malba/debris at Mandakbas, being under the employment of

respondent No. 2, and whereupon a claim petition came to be filed by him

for compensation before the Commissioner claiming therein to be of the age

of twenty years at the time of accident and receiving wages of Rs. 100/- per

day.

2 MA No. 256/2015

3.

The appellant herein, being impleaded as respondent No. 3, in the

claim petition states to have filed detailed objections denying therein its

liability to pay compensation to the claimant besides denying the

employment of the claimant, wages drawn by him as also the accident.

4.

The respondent No. 2, is stated to have filed his response as employer

of the claimant/respondent No. 1 herein, and admitted his employment.

5.

The claimant is stated to have examined Dr. Mohd. Iqbal Bhat,

Deputy Chief Medical Officer, Ramban as a witnesses, who is stated to have

deposed that the claimant/respondent No. 1 herein sustained injuries to his

right leg resulting into weakness of the same with restricted movement and

contracture of muscles with a permanent disability of 50%.

6.

It is being urged in the memo of appeal that the Commissioner did not

appreciate the evidence in correct perspective and determined the loss of

earning capacity of the petitioner as 50% equivalent to his permanent

disability and so much so that the Commissioner has taken the wages of the

claimant Rs. 3000/- without there being any evidence.

The appellant based on the aforesaid contentions has

framed two questions to be as substantial question of law:-

(a) Whether

the

Commissioner

under

Employees

Compensation Act without considering the schedule as

framed under Workmen Compensation Act by the

Parliament and without considering the statement of

Doctor who has categorically stated that the injured

Respondent No. 1 has suffered 50% of permanent

disablement of particular part of the body as 50% loss

of earning capacity and thus the award is perverse and

bad in the eye of law. There is no evidence in support

thereof.

3 MA No. 256/2015

As herein the present case as per Doctor, the injured

Respondent No. 1 has suffered fracture of right leg. The

Doctor has assessed only permanent disablement of

Respondent No.1/injured and that too of a particular part.

The

Learned

Commissioner

while

assessing

the

compensation

has

taken

this

50%

of

permanent

disablement wrongly as 50% of loss of earnin