g P @ i i t I HEGH COURT OF CHI-EATTISGARH AT BELASPUR ’ M.A. r€0.;364 OF 2003 APPELLAKTI : g Keshav Neiam {Grignal Claimant} Vefsus Ashok Kuniar Agrawai and ailother. RES?0I€EENTS M.A. N6. 1078 OF 2003 Oxiental Insurance Company Ltd. I Vefsus a RES?ONDEI€TS : Keshav Net-am anti another. ; ‘* APPELLAmi NOK—CLAIMAM Present i Shri Shri Maiay Kumar Bhaduri, counsel for tha appellant in MA. No.864/2003 Shri RakeSu Pandey 65 Shri S0111 abh Shw ma cdunsel for rpspopdpnts in M A No 864/ 20m S1111 Sumaoh Shanna counsel fox the aDDellant "1 M A No 1078/2003 ahu RaKem1 Pauuev 85 §iui malay kumar Dhadun, 001111361 for the rP-spopdentQ 1n M A No 1078 / 4003 n?PEALS UNDER aECTxOti 30 OF THE WORKMEH’S COMPEK$$TIQN ACT iD1v1510n Bencn. non’ble Shn LIE. Quddus: & Een’ble Shn G Minhajuddin, JJ.) ORAL ORDER (Passed on 66th Day of Juiy, 20i1) Fer LE. Quddusi, J The aforementioned two' appeals (MA. Nos. 864/2003 as? 1078/9003) eue being disposed of by this common order a§ they ariSe out of one and the Same award dated 05-08- 2003. 2‘ These are two appeaES‘ MA. No.864/2003 has been med by th dalmant agamst the impugned award dated. 05-08-2003 passed by ‘1e additionai eommissioner, ”?P ‘ I ‘ E % Lkman’s pompensauon Labum Court Raipm‘ by wmch 1lea1ncd Addl pomuumloncl has not unposed 00% penalty ‘ as well as not gianted 12% interest irom the date of the i zft‘cident and MA. No.1078/2003 has been filed by the O{riental Insurance Company against the same award 1 ailengmg the apphcabmty of the clauses 1n (he ward and W 3 i tine registered owner of the Truck bearing registration No. CG O4 ZC 3606, non—applicant No. 2 was the insurer of the above Truck and the claimant (Keshav Netam) war; an empioyee of“ non-applicant No. 1. On 12-05—2002 the appellant/claimant While removing the Tyre from the Wheel of the Truck, the jack was slipped due to which the claimant sustained grievous injury in his left leg. He Was taken to the Hospital at Raipur for tieatment The information of the incident was given to the Ponce Station, Gariyaband, District Raipur ong eaicma‘nons 01 the compensatron Brief facts of the case are that non-applicant No. 1 was; i . E i at. The claimant had filed a petition“ before the (liommissioner for Workmen’s Compensation, Labour Court, Rgaipur under Section 10 of the Workmen’s Compensation Act, 1923 (for short ‘the Act, 1923’) claiming compensation of Rs.3,48,754/- and also claimed 50% on the amount of compensation by way of penalty along with 12% interest from the date of accident tillthe date of its payment. 5. Learned Addl. Commissioner for Workmen’s Compensation, on a close scrutiny of the evidence led, material placed and submissions made by the paities, has awarded a sum of Rs.3,48,754/— and non-applicant No. 2/Oriental insurance Company has been held liable to pay ti‘e amount of compensation within a period of two months ianiuig the amount of Compensation shall cairy C 12% intei est per annum 6. We Commissioner, award. ’7. In suppmt of his argument lealned counsel 101 the appeliant/cldimant (N' A No 864/2003) has reheu on a deuswn of Hon’ble Supreme Court 1n the matter of S. Suresh u. Oriental Insurance Co. Lid. and Another; reported in 2010 AIR SCW 437, referrmg the .four Hon’bie i‘Judges Bench decision in Pratap Narm‘n Singh Dee v. which was a case of a rarpenter who had suffered amputation of his left arm from the elbow and that was treated to a total disability as the injury of such a nature was that the claimant had been disabled from ail work which he was capable of performing at the time of accident. Hon’ble Apex Court in S Suresh (supra) has held that on account Of amputation of right ieg below knee, the ciainiant has rendemd unfit for the t work of a driver, which he was performing .at the time of i I 1 accident resulting in total disablement Therefme he has ‘ l ‘ ‘ } \ \ ‘ when he is disqualified fiom even getting a drivmg iicence i under the Motor Vehicles Act 8. Having regard to the facts of the case on hand we die ' of ll e opinion that the iano m the case of Praiap Narain Singh Eeo and S. Ithe instant case as the claimant herein, was a I i Conductm / Clcaner unm‘ IT‘I‘ I have perused the records of the Addl. Court as weli as the' impugned Labour Srinivas Sabata and Anr. (MR 1976 SC 222) j l mme so, lost 100 o of his canning capacity as wiry driver l l l l s auresh (supra) would 110i. ue apphcaole 111 of Ll Ti uck wno smiered amputation of 1 left leg oeiow knee and aoCoi ding to the acctor the Claimant ‘goL 70% peimanent disability 9. RMA lias given his iinding that the peimanent disability was 100%, wheieas acCOi ding to medical iepoit the peimanent oiSabili‘y was to the extent of 70% only wither/W heained counsel for the appellant/insui aiice Company No 1078/2003) has suomitted that the CommisSionei i \ i i V 1 A ‘ } Lsubmltted that the injury sUStained by th¢ C‘Iaimant was a gscheduled injury and fheréfore, $eria1 20 of ?art II of lSchedule-I of the Act, 1923 $11ou1d have been applied Where fhe percentaga bf lass of earning capacity ha$ been mentioned as 50% which described as “amputation below knee with stump exceeding 8.89 Cms. but not exceeciing 12.70 Cms". Further, at serial No. 21 also pementage of loss ‘f earning capacity has been mentioned as 50% Where ‘mnputation below knee with stump exceeding 12.70 Cms" l l‘as been described. Learned counsel next submitted that ithe t Additional Commissioner, Workmen’s Compensation has ‘aiso committed manifest error of law in eaicuiating the Eam‘ount of compensation under Section 4(1)(b) instead of iSection 4(1)(c) of the Act, 1923 as it was not a caseof total ipermanent disablement but was a case of permanent partial disablement. iO. Learned (MA(C) §N0.864/2003) has submitted that no penalty has been ‘imposed which should have been imposed as provided under Section 4-A (3)(b) of the Workmen’s Compensation Act and '120/0 interest should have been imposed in accordance with :Section 4-A, (3) (a) 6s (b), which reads under: 1 counsel for ‘the appellant “4A(3) Where any employer is in default in paying the compensation due under this Act Within one month from the date it fell due, the Commissioner shall—— (a) direct that the employer shall, in addition to the amount of the arrears, pay simple interest thereon at the rate of twelve per cent per annum or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified by the Central Government, by notification in the Official Gazette, on the amount due; and i ‘ N‘ \ (b) \ h .l‘ in His opinion, 'there is no justification for the delay, direct that the employer shail, in addition to the amount of the arrears, and interest thereon pay a further sum not exceeding fifty per cent of such amount by way of penaity". i 1 i 1 i I i 1 We have perused the impugned award and found that ieained Commissmner for Wmlnnen’s compensation has. oogumtted manifeet euor of law in not conmdeung that whether the injury in queation is a scheduled injury and if it is so, Whether it Will be a case of total permanent disablement or partial permanem disaulement and further Whether the penalty was haule to be unpOsed in accordance with the pi OViswns of the Workinen s Compensation Act, as discussed above. l2. Theieiore we are of the opinion that tne matter requires iecons1deiauon at the end of the cominisSionei’ Woikniens Compensation, in the light of the obsei‘Vations inade herein above i 1‘3. in View 0i the above, we allow both the appeals ed by i the appellants, set aside the impugned award and remit the matter back to ”1e Commissioner f‘r Workmen’s Compensation for determination of the facts and making” award afresh, after providing opportunity to the parties. i 1:14. Needless to mention that the parties shall be provided opportunity to amend the pleadings, adduce further eVidenee, file documents or get the documents Veiified etc , on the baSis of the pleadings aiieady on ieconl and Lnei eaiter, award shall be made afresn __1 15 The paities shall appear before the Claims Tribunal on 10—38—201 i. $ 16. 1137. The amount which has already beén dePOSiteci add is still i111 i dép0$it shali be kept in a fixed deposit in.a Nationa1i7cc‘l Bank for a pcriocl of one year which shall bc subject to decision maée in the awah‘i. 18. The Commiseioner for Workmen’s Compensation shall ake an endeavor to decide the matter afresh as early as possible j ' ieferabiy Within a period of two months from the date of first i‘aiapearanee of the parties, provided the parties cooperate with the y proceedings. 319 -\ No Oider as to costs. Sd/- e G. Minhajuddin Judge Sd/— I.M. QUDDUSI Judge ‘