IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL A.O. No. 581 of 2007 United India Insurance Company …. Appellant. Versus Shree Ram and another .. Respondents. Mr. Prabhat Pandey, learned counsel for the appellant. Mr. G.S. Negi, learned counsel for respondent No.1. None has appeared on behalf of respondent No.2. Dated: 15-10-2008 UHon’ble B.C. Kandpal, J. This appeal, under Section 173 of the Motor Vehicles Act, has been preferred by the United India Insurance Company, against the judgment and award dated 25-10-2007, passed by Workmen’s Compensation Commissioner/Assistant Labour Commissioner, Haldwani, in WCA Case No. 28/2004, Shree Ram Vs. Vice President Khatima Fibers Ltd. and another. 2- Brief facts of the case, giving rise to this appeal, are that claimant/ respondent Shree Ram filed a petition for compensation before the Workmen’s Compensation Commissioner, with the allegations that he was in the employment of Khatima Fibers Limited. On 11-5-2002, at about 5.40 P.M. when he was on duty due to leakage of digester plant he was burnt by the steam and material coming out from the digester plant and he became permanently disabled up-to an extent of fifty percent. At the time of accident, he was getting a monthly salary of Rs. 2,500/-. He got treatment in District Udham Singh Nagar. The Chief Medical Officer, Udham Singh Nagar has issued disability certificate of 45% due to the injuries suffered by him in the accident. 2 3- The opposite party No.1, employer of the claimant filed written statement and admitted that the injured at the time of accident was employed with the company and was getting a monthly salary of Rs. 2,446/. It was further alleged that all the workmen of the company were insured with United India Insurance Company and the liability to pay the compensation is upon the insurance company. 4- The opposite party No.2, United India Insurance Company also contested the claim petition by filing its written statement. The insurance company denied the allegations made in the petition for want of knowledge. It also alleged that the insurance company has no information about the employment and salary of the workman. The insurance company cannot be held liable to pay compensation until it is proved that the terms of insurance policy were not breached. 5- Parties in support of their case adduced evidence before the learned Workmen’s Compensation Commissioner. Thereafter, the learned Commissioner after hearing learned counsel for the parties and perusing the entire material available on record, awarded a sum of Rs. 1,37,354/- as compensation to the injured workman against the United India Insurance Company and directed to deposit the compensation within 30 days, failing which interest @ 12% per annum from the date of award shall be payable. 6- Feeling aggrieved, the United India Insurance Company has preferred this appeal before this Court. 3 7- I have heard the learned counsel for the appellant as well as the learned counsel for the claimant/respondent, and perused the record. 8- Learned counsel for the appellant has submitted that the disability certificate filed by the claimant/respondent, showing 45% disability, has not been proved by examining the doctor and the learned Commissioner has committed a patent error of law in relying on the said disability certificate. He also submitted that the workman has been paid full salary by the employer during the period of his treatment, hence the learned Commissioner has wrongly award the compensation for the loss of earning capacity. 9- On the other hand learned counsel for the injured/workman has submitted that the learned Commissioner has calculated the compensation on the basis of the admitted salary of the workman applying the formula given in the Workmen’s Compensation Act, hence the appeal preferred by the insurer has not force and the same is liable to be dismissed. 10- I have considered the rival contentions of learned counsel for the parties. Perusal of record reveals that the accident is admitted by the employer during the course of the employment of injured/claimant. The employer also admitted that the workman was being paid a salary of Rs. 2,446/- per month. The injured/workman at the time of accident was 30 years of age. So far as the disability suffered by the workman is concerned, his assertion is that he sustained the disability due to accidental burn upto 45%. To prove his disability the injured/workman has filed the photocopy of disability certificate Ext. Ka.1, issued by the Chief Medical Officer, 4 Udham Singh Nagar. The disability certificate has been certified by Superintendent of C.H.C. Khatima, U.S. Nagar. The opposite parties did not adduce any evidence before the learned Commissioner, which may discredit the genuineness of the disability certificate. The injured/workman in his deposition has stated that due to the disability he has to suffer financial loss and he could not get promotion on the higher post whereas his colleagues have been promoted to higher posts. In above facts and circumstances of the case, I do not find any error of law in the method adopted by the learned Commissioner for calculating the quantum of compensation and the same does not require interference by this court. 11- The appeal lacks merit and is liable to be dismissed. 12- Accordingly, the appeal is dismissed. The impugned judgment and award dated 25-10-2007, is hereby confirmed. ISB ( B.C. Kandpal, J.) 5