HIGH COURT OF UTTARANCHAL AT NAINITAL Appeal Against Award No. 1208 of 2001 (Old No. 40/1994) The New India Assurance co. Ltd; through its Senior Divisional Manager, Civil Lines, Allahabad ................ Appellant Versus 1. Govind Singh son of sri Daulat Singh resident of village Simswada, P.O. Badhheli Khal, District Tehri Garhwal 2. Ashok Kumar Bhatt son of Sri Janki Prasad Bhatt, resident of Bus Stand, Joshimath, District Chamoli Garhwal ...Respondents Sri P.C. Maulekhi for the appellant Sri P.S. Danu for the respondents Dated: 9.1.2008 Hon’ble Rajesh Tandon, J. 1) Present appeal has been preferred against the judgment and award dated 28.10.1993 passed by the Commissioner, Workmen’s Compensation, Dehradun. 2) Claimant respondent no. 1 filed a claim petition under Workmen Compensation Act, for the grant of compensation on account of injuries sustained by him in an accident. According to the claimant he was driver on the truck No. DBL 9116 of respondent no. 2 Sri Ashok Kumar Bhatt. On 7.9.1990 his truck met with an accident and collided with truck No. URM 8808 due to which the claimant sustained multiple injuries including fracture of his leg. At the time of accident he claimant was 22 years of age. He was getting Rs.700/- per month as salary. 3) Respondent no. 2 owner of the truck filed his written statement and admitted the alleged accident. It was submitted that the deceased was employed by him as truck driver on daily wages. The truck was validly insured with the New India Assurance Company. The driver had valid driving licence and the insurance company is liable to pay compensation, if any, to the claimant. 4) Appellant Insurance Company has filed written statement and admitted that the truck was insured with it. It has been stated that the claimant was working in a firm at Rishikesh which shows that no permanent injury has been sustained by him in the alleged accident. The application is not maintainable under the Workmen’s compensation Act. 5) The Workmen’s Compensation Commissioner after considering the evidence on record awarded a sum of Rs.38738.75/- as compensation, after taking into consideration the wages payable to the claimant i.e. Rs.700/- per month. It has been held that the truck was insured with the appellant the New India Assurance Co. and the insurance company was held liable to pay compensation to the claimant. 6) Counsel for the appellant has submitted that the Workmen’s Compensation Commissioner has arbitrarily held that the claimant sustained 50% permanent disability and awarded compensation against the norms prescribed under schedule IV of the Act. 7) The Tribunal has framed issue on the point of percentage of the disablement sustained by the claimant and on the basis of the statement of Dr. S.P. Tiwari, Senior Orthopaedic Surgeon and the certificate issued by the doctor has held that the claimant is not capable of doing the work of driver and held his physical disability to be 50%. The opposite parties have not adduced any evidence to rebut the assertion made by the claimant. 8) The next submission of the counsel for the appellant is that amount of compensation has not been awarded in accordance with the norms provided under Schedule IV of the Act. Before dealing with the second submission the relevant provision of law as referred by the counsel is quoted below: “1[4. Amount of compensation. – (c) Where permanent partial disablement results from the injury (i) In the case of an injury specified in Part II of Schedule I, such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury; and (ii) In the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury; Explanation-I. – Where more injuries than one are caused by the same accident, the amount of compensation payable under this head shall be aggregated but not so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries. 9) The wages of the claimant was held to be Rs.700/- per month. His age was 22 years at the time of accident. Thus according to Schedule IV, a factor of 219.95 should be applied on the sixty percent of the pay and fifty percent of the aggregate amount would be the just compensation i.e. 700 (60%) x 219.95/2 = 46189.50. Thus the claimant was entitled to get Rs.46,189.50 as compensation. However, the compensation assessed by the Tribunal was Rs.38,739.75. No cross appeal has been filed by the claimant and thus no further amount can be awarded to him. No interest has been awarded on this amount. 10) In view of above, I find no merit in the appeal. The appeal is hereby dismissed. 11) No order as to costs. (Rajesh Tandon, J.) 9.1.2008 *Dhyani