IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal from Order No. 498 of 2007 Hayat Singh ....….…… Appellant versus V.S.Patiyal and others ..………. Respondents Mr. Amit Kapri, Advocate, present for the appellant. Mr. Nikhil Joshi, Advocate, present for the respondent no.1. Mr. Deep Chandra Joshi, Advocate, present for the respondent no.2. Mr. Alok Mahra, Advocate, holding brief of Mr. Manoj Tiwari, Senior Advocate, present for the respondent no. 3. Mr. V.K.Kohli, Senior Advocate, assisted by Mr. I.P.Kohli, Advocate, present for the respondent no.4. U.C. Dhyani, J. (Oral) 1. According to certificate dated 16.03.2004, issued by the Chief Medical Officer, Pithoragarh, physical disability of the claimant Hayat Singh was assessed at 52%. It was certified that the claimant Hayat Singh had 52% permanent physical impairment in relation to his body and weakness (both lower limbs). Taking into account 52% permanent physical impairment of the claimant, learned Commissioner for Workmen Compensation granted compensation of Rs. 1,38,764/- along with interest at the rate of 8% per annum to the claimant. Oriental Insurance Company was 2 directed to pay the aforesaid sum along with interest at the rate of 8% per annum from the date of presentation of the application till the date of payment. In other words, the certificate issued by the Chief Medical Officer, Pithoragarh, was accepted, in its entirety, by learned Commissioner while passing the impugned award. 2. Learned counsel for the appellant made an attempt to show that the claimant had 90% permanent disability, which is contrary to the evidence on record. It cannot be said, as argued by learned counsel for the appellant, that the claimant suffered ‘total disablement’. The expression ‘total disablement’ is defined in Section 2(i)(l) of the Workmen Compensation Act, 1923, as follows: “2.(i) (l)- "total disablement" means such disablement whether of a temporary or permanent nature as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement” 3. This fact is under no dispute that the injury sustained by the claimant was of such a nature as to cause permanent disablement to the claimant, and the question, therefore for consideration is- whether the disablement incapacitated the claimant for all working, which he was capable of performing at the time of the incident? The Commissioner has examined the question and 3 recorded his finding while deciding issues no. 4 & 5 at the time of rendering the impugned judgment. Amputation of any organ is not the present appellant’s case, as was the case of the claimant in Pratap Narain Singh Deo vs. Srinivas Sabata and another, AIR 1976 SC 222; 1976 SCR (2) 872. 4. It appears to be a reasonable and correct finding. Learned counsel for the appellant has not been able to assail it on any ground and it does not require to be corrected in this appeal. There is, therefore, no justification to enhance the amount of compensation awarded to the claimant under the Workmen Compensation Act, 1923. 5. Learned counsel for the respondent-insurance company placed the judgment rendered by Hon’ble Apex Court in National Insurance Company Limited vs. Mubasir and another, 2007 (2) TAC 3 (SC), to show that loss of earning capacity is not a substitute for percentage of physical disablement. It is one of the factors to be taken into account. In the instant case, the Commissioner for Workmen Compensation relied upon the certificate issued by the C.M.O., Pithoragarh, who assessed the permanent disability of the claimant at 52% and also rightly considered the loss of his earning capacity. Thereafter, a correct calculation was made on the basis of such loss of earning capacity of the claimant (appellant herein) and an appropriate 4 compensation was awarded to him, leaving no room for enhancement of the same. 6. No interference is called for in the impugned judgment and order. The appeal fails and is, accordingly, dismissed. (U.C.Dhyani, J.) 17.06.2014 Kaushal 5