FAO No.121 of 2010 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH FAO No. 121 of 2010 (O&M) Date of Decision: 09.03.2011 M/s Garg Sales Pvt. Limited ...Appellant Versus Sh. Kashmir and another .....Respondents CORAM: Hon'ble Mr. Justice Rajesh Bindal Present: Mr. Anil Ghanghas, Advocate for the appellant. Mr. Saurabh Dalal, Advocate for respondent No.1. ..... RAJESH BINDAL, J. Challenge in the present appeal is to the order dated 11.11.2009 passed by the Commissioner under the Employees Compensation Act, 1923 (for short ‘the Act’) assessing the compensation of ` 99,187 /- on account of injuries suffered by respondent No.1 in an accident which had taken place on 12.2.2006 in the premises of the appellant. The only argument raised by learned counsel for the appellant in terms of Section 4(1)(c)(ii) of the Act is that in case of injuries which are not mentioned in the schedule annexed to the Act, assessment of compensation can be raised by the Commissioner only after assessing the loss of earning capacity and not only permanent disability. In support of his argument, he has placed reliance on the Full Bench Judgment of this court in Shivalinga Shivanagowda Patil and another Versus Erappa Basappa Bhavihala and etc. 2004 L.I.C. 286. On the other hand, learned counsel for respondent No.1 submitted that respondent No.1 was aged about 18 ½ years at the time of accident. The disability, though assessed only 25 %, but the loss of earning capacity is more than that as with the fracture in hip and forearms, the respondent will not be able to do any heavy work. However, he could not dispute the fact that there is no assessment of loss of earning capacity of respondent No.1 by the Commissioner while assessing the amount of compensation. FAO No.121 of 2010 2 After hearing the learned counsel for the parties, I am of the opinion that the matter deserves to be remitted back to the Commissioner for determination of loss of earning capacity of respondent No.1 as provided for under Section 4(1)(c)(ii) of the Act for the purpose of assessment of compensation to be paid to him. Hon’ble the Supreme Court in Palraj vs The Divisional controller, NEKRTC 2010 (4) RCR (Civil) 384, opined that while computing compensation for disabilities suffered by a workman, it is the functional disability resulting in loss of earning capacity which is the criteria required to be followed in assessing the compensation. The loss of earning has to be computed keeping in mind the alternative employment given to the employee and emoluments thereof. Accordingly, the impugned order is set aside and the matter is remitted back to the Commissioner under the Act. For re-determination of the compensation in terms of the observations made above, parties are directed to appear before the Commissioner on 4.4.2011. However, it is made clear that with the setting aside of the order passed by the Commissioner by this Court, respondent No.1 shall not be required to refund the amount of compensation, which has already been received by him. However, the same shall abide for the final order passed by the Commissioner. The appeal is disposed of. (RAJESH BINDAL) JUDGE 09.03.2011 sharmila