IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL A.O. No. 478 of 2008 The Oriental Insurance Co. Ltd. ..……… Appellant. Versus Shri Diwan Singh and another ……… Respondents Mr. V.K. Kohli, Senior Advocate assisted by Mr. Tribhuwan Pandey, Advocate for the appellant. Mr. A.K. Sah, Advocate for the respondents. Hon’ble Tarun Agarwala, J. Heard Shri V.K. Kohli, the learned Senior counsel assisted by Mr. Tribhuwan Pandy, the learned counsel for the appellant and Shri A.K. Sah, the learned counsel for the respondents. The facts leading to the filing of the appeal u/S 30 of the Workman Compensation Act, 1923 is, that the workman opposite party No.1 was employed as a driver and, in the course of his employment, while driving the vehicle from Haldwani to Almora, the vehicle stopped on account of some defect. The workman in order to check the defect, opened the bonnet of the vehicle when, all of a sudden, the battery burst and pieces of battery, damaged the right eye of the workman. The workman was hospitalized and was operated upon. The doctor issued a disability certificate indicating the loss of disability at 50%. The workman claimed compensation and, since it was not paid, filed an application for payment of compensation under the Workman Compensation Act. The owner of the vehicle admitted that the injuries were caused during the course of his employment which resulted in the loss of the right eye of the claimant. The employer also asserted that the workman was getting Rs. 3,000/- p.m. The insurance company also filed the written statement and denied the allegation 2 made in the claim application and contended that the vehicle was being driven against the terms and conditions of the policy. The Commissioner Workman Compensation, after considering the material evidence on record, allowed the claim application by an award dated 20th July, 2006 holding that the workman was entitled for Rs. 2,50,423/- as compensation and that the insurance company was liable to pay the said amount since the vehicle was insured. The Insurance Company, being aggrieved by the said order, filed an appeal No. 529 of 2006 which was allowed and the award dated 20th July, 2006 was set aside on the short ground that the claimant had not proved the disability certificate filed by him and that the doctor who had issued the said certificate should have been examined. Pursuant to the said order, the matter was again considered by the Commissioner Workman Compensation. The doctor was examined who proved the disability certificate. The Commissioner in its award dated 23rd April, 2008 held that the disability certificate has been duly proved by the workman and, consequently, reiterated the compensation awarded as per the earlier award dated 20th July, 2006. The Insurance Company, being aggrieved, has again filed the present writ petition. The learned counsel for the appellant submitted that the workman had suffered permanent partial disablement and under Schedule I, Part II, the percentage of loss of earning capacity indicated is 40 percent in the loss of one eye and that the Commissioner while calculating the compensation has calculated the amount by granting 100% of loss of earning capacity and, 3 consequently, the calculation was patently erroneous. The learned counsel further submitted that the Commissioner while passing the impugned award could not reiterate the earlier award dated 20th July, 2006 which has been set aside by a judgment of this Court and, consequently, on account of aforesaid two counts, the award cannot be sustained and was liable to be quashed. Having heard the learned counsel for the parties, this court is of the opinion that the submission of the learned counsel for the appellant cannot be sustained. A perusal of the disability certificate indicates that the injuries caused to the workman was a permanent total disablement and was not a permanent partial disablement. Consequently, the injury of the workman comes under Part-I, Schedule-I. Item No.4 of the Part I, Schedule I indicates where there is a loss of sight to such an extent to render the claimant unable to perform any work for which the eye-sight was essential, then the percentage of loss of earning capacity is 100%. In the present case, the workman was a driver and, on account of the loss of his right eye, he is unable to perform the work of a driver. Consequently, the percentage of loss of earning capacity is 100% and not as defined under Part-II of Schedule I. In the light of the aforesaid, this Court is of the opinion that the amount calculated by the Commissioner in its earlier award does not suffer from any error. No doubt, once the earlier award has been set aside by the High Court, the said award does not exist in the eyes of law. The Commissioner while passing the order afresh could not reiterate its earlier award and, to that extent, the submission of the learned counsel for the appellant is accepted. However, by this, the award passed by the Commissioner cannot be set aside. The accident occurred in the year 2005. Six years have elapsed and the 4 workman is entitled for the compensation. The Court finds that instead of remitting the matter for re-calculation, the Court has examined the matter itself and finds that the calculation of compensation of Rs. 2,50,434/- has been done as per the Section 4 of the Act read with the Schedule. Consequently, this Court does not find any error in the impugned award. The appeal fails and is dismissed. (Tarun Agarwala, J.) Dated 12.07.2010 Shiv