1 FA No.1688/09 fmpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.1688 of 2009 (i) United India Insurance Co.Ltd. ... Appellant versus (i) Manojkumar Parmeshwar Mahato (ii)Shri Sunilkumar Omprakash Sidana ... Respondents ... Mr. J.S. Chandnani for the appellant Mr.T.J. Mendon for respondent no.1. CORAM : D.G. KARNIK, J DATED : 21st February 2011 P.C. 1. Heard learned counsel for the parties. 2. This appeal has been filed under section 30 of the Workmen’s Compensation Act against the judgment and order dated 19 November 2006 passed by the Labour Court and Commissioner for Workmen’s Compensation. 3. First proviso to section 30 of the Workmen’s Compensation Act says that no appeal shall lie against any order (passed by the Commissioner) unless a substantial question of law is involved in 2 FA No.1688/09 the appeal. The appeal is therefore restricted to only a substantial question of law. 4. Learned counsel for the appellant submitted that question no. 4(E) mentioned in the appeal memo raises a substantial question of law. He submitted that the medical certificate show that the respondent no.1 had suffered a permanent disability only to the extent of 30%. The Tribunal held that respondent no.1 had incurred 100% loss of earning capacity and awarded compensation accordingly. This is contrary to the decision of the Supreme Court in Oriental Insurance Co. Vs. Mohd. Nasir & Anr. 2009(6) SCC 280 and therefore that raises a substantial question of law. 5. The decision of Oriental Insurance Co.Ltd. Vs. Mohd. Nasir(supra) does not lay down that loss of earning capacity exactly co-relates with the percentage of disability i.e to say where the permanent disability is 10%, loss of earning capacity would be 10% or that where permanent disability is to the extent of 20% loss of earning capacity would be exactly 20% and so on. Though there may be a broad co-relation between an extent of permanent disability to the extent of loss of earning capacity, the co-relation may not be exact. In some cases, the loss of earning capacity may be more than the extent of permanent disability while in other cases, loss of earning capacity would be lesser than the extent of disability in respect of non scheduled injuries. For example, an Airline Pilot suffering only permanent partial disability of 20% to 3 FA No.1688/09 30% may lose his licence to fly and would cease to be employable as pilot losing 100% of income as a pilot. Unless he has any other employable skill he would suffer 100% earnings. In the present case, injury suffered by respondent no.1 is a non scheduled injury. The respondent no.1 was working as a driver on H.C.V. His disability has arisen on account of compound fracture of right leg of Grade IIIB. Mr.Khedke, Orthopedic surgeon who was examined has stated on oath that the respondent no.1 would not be able to drive heavy vehicle at all. Though, therefore, the permanent disability was 30%, he would not at all be able to carry out the vocation of a driver. There was nothing on record to show that the respondent no.1 possesses any other vocational skill to earn any other livelihood. Thus, the finding recorded by the Commissioner that the applicant suffered 100% loss of earning capacity though his permanent disability was only to the extent of 30% is a possible finding of fact and it does not give rise to a substantial question of law. 6. No other question of law is urged before me. Consequently, in view of proviso to section 30 of the Workmen’s Compensation Act, the appeal is dismissed summarily. R & P be returned to the Commissioner. (D.G.KARNIK, J)