NATIONAL INSURANCE CO LTD Vs. BENUDHAR UPADHYA

JUDGEMENT

(1.) THE Judgment dated 30th June, 1999 passed by the Commissioner for Workmen's Compensation and Ass. Labour Commissioner, Balasore in W.C. Case No. 40 of 1994 awarding a compensation of Rs. 37,063.00 in favour of petitioner -Respondent No. 1 is assailed by the National Insurance Company invoking jurisdiction of this Court under Section 30 of the Workmen's Compensation Act

(2.) IN a motor vehicle accident that occurred on 7/8 -5 -1994 petitioner -Respondent No. 1 who was driving a trekker bearing registration number OR -OJ -7635 sustained grievous injuries on his body. He was first treated at the Balasore Hospital as an indoor patient and then shifted to the SCB Medical College Hospital at Cuttack. He filed the aforesaid case before the Commissioner claiming a compensation of Rs. 1,14,000.00. The owner of the aforesaid trekker though received notice of the case, did not appear before the Learned Commissioner for which he was set ex parte. The Appellant -Insurance Company in its written statement took the stand that petitioner -Respondent No. 1 did not sustain any loss of his earning capacity and disowned its liability to pay any compensation. After assessing the entire evidence and other materials including the medical certificates with regard to treatment and physical disability as well as loss of earning capacity of petitioner -Respondent No. 1, the Learned Commissioner arrived at the conclusion that he sustained a loss of earning capacity of 35%. On the basis of such conclusion coupled with other circumstances, the Learned Commissioner by the impugned Judgment awarded the aforesaid compensation in favour of petitioner -Respondent No. 1.

(3.) THE submissions of the Learned Counsel for the Appellant are strongly repudiated by the Learned Counsel for petitioner - Respondent No. 1 stating that in a given case if materials are available, Commissioner can assess the loss of earning capacity of a victim of accident after perusing certificate with regard to his physical disability and other materials. He also submitted that due to the injuries sustained by petitioner -Respondent No. 1 he is not capable of driving any heavy vehicle and though his driving licence has been renewed, it cannot be said that he can perform the same duty which he was performing prior to the accident. He thus submitted that none of the grounds on which the Learned Counsel for the Appellant assails the Judgment of the Learned Commissioner is sustainable.