NEW INDIA ASSURANCE CO LIMITED Vs. MANOHAR

JUDGEMENT

(1.) BOTH the appeals arise out of common judgment dated 8.11.2002 passed by the Commissioner for Workmens' Compensation, Belgaum in WCA/SR-135/2002 and WCA/SR-137/2002 respectively, whereby the claim petitions filed by the respondent No.2 were allowed awarding compensation of Rs.1,72,512/- and Rs.1,06,121/- together with interest at 12% p.a. over and above the amount of compensation as per Section 4-A of the Act. Being aggrieved by the said judgment and award, the appellant being the insurer on whom the liability to pay the compensation amount has been fastened by the Commissioner for Workmen Compensation, has come up with these both appeals.

(2.) THOUGH the claimants are different, the appellant herein who is the insurer is one and the same in both the appeals and as the claim petitions arise out of one and the same accident, in order to avoid repetition of facts and law, both the appeals have been taken up together, heard and disposed of by this common judgment.

(3.) ON the other hand, learned counsel for the respondents-claimants submitted that admittedly claimants suffered permanent partial disability to the extent of 35% & 25% respectively as stated by the medical officer but the result and effect of permanent disability on the avocation of the appellant is to be taken into consideration. Therefore, the Commissioner has rightly taken the resultant effect of permanent physical disability on the earning capacity on considering the avocation of the respondents- claimants. Therefore, cogent reasons have been assigned by the Commissioner though the Doctor opined the respondents claimants suffered 35% & 25% permanent physical disability respectively. But he has to consider the effect of permanent physical disability on the avocation of the claimant and therefore the Commissioner came to the conclusion that the claimant has lost 70% & 50% of earning capacity. It is further argued that the interest awarded is also in accordance with law which does not requires any reduction or modification. In support of the his contention, learned counsel for the respondent-claimant relied on a decision reported in 2008 AIR SCW 3951 in the case of K.JANARDHAN VS. UNITED INDIA INSURANCE COMPANY LIMITED AND ANOTHER, wherein it has been held thus: "Total disablement-Tanker driver met with accident with tractor- Suffered serious injuries and also amputation of right leg upto knee joint- Can be said to have suffered 100% disability and incapacity-would also be disqualified from even getting driving licence. Computation of compensation on basis of loss of 100% of his earning capacity would be proper." Therefore, the Commissioner has rightly taken the loss of earning capacity at 70% & 50% in respect of the claimant in WCA/SR-135 & 137/2002.