New India Assurance Company Ltd. vs Sube Khan and Another

Rakesh Kumar Garg, J.

CM No. 14533-CII of 2013

Since the appeal has been dismissed on merits, the prayer made in this application for condonation of delay of 57 days in filing the appeal has become redundant.

FAO No. 3568 of 2013

The applicant/respondent No. 1 Sube Khan filed an application for grant of compensation before the Commissioner, Mewat, under the Employee''s Compensation Act, 1923 (hereinafter referred to as, ''the Act''), alleging that he was working as a driver on Vehicle No. HR 38-M-7326 of respondent No. 2 on a monthly salary of Rs. 5,000/- plus Rs. 50/- per day as diet expenses. On 03.03.2008 when he was on duty on the said vehicle, he received injuries. He was admitted in General Hospital, Mandi Khera and thereafter he got treatment from Dhariwal Nursing Home, Palwal and spent Rs. 50,000/- on his treatment. He became disabled and had no source of income and therefore he was entitled to compensation. It was also alleged that the vehicle was insured with the appellant-Company and the accident occurred during the course of employment. Since no compensation was paid to him, he filed this claim application.

Respondent No. 2 failed to put in appearance despite notice and was proceeded against ex-parte vide order dated 04.03.2010. The appellant filed its written statement raising various preliminary objections. On merits, claim of respondent No. 1 was denied. On the basis of pleadings of the parties, following issues were framed:

Whether the claim application is not maintainable?

Whether there exists employer-employee relationship between the claimant and the respondent No. 1?

Whether accident occurred out of and in the course of employment of respondent No. 1?

Whether the claimant is entitled to the amount of compensation, as claimed? If so, from whom and to what amount?

Relief.

To prove his claim, respondent No. 1 stepped into the witness box and reiterated his claim. The Commissioner, Mewat, under the Act, after considering the evidence on record, held that there was a relationship of employee and employer between the applicant- respondent No. 1 and respondent No. 2. The applicant met with an accident, received injuries and became disabled to the extent of 25% due to the injuries received by him in an accident during the course of his employment.

Thereafter, the Commissioner, Mewat, under the Act, while determining compensation payable to the applicant, held that he had lost his 100% earning capacity and was unable to do the work of driver due to disability of his right leg and therefore, was entitled to compensation to the tune of Rs. 4,42,008/- along with interest as per the formula laid down u/s 4(i)(b) of the Act. It was further held that the appellant-Company had issued insurance policy Ex. A-4, which was valid on the date of accident and thus, the appellant being insurer was liable to indemnify the aforesaid amount of compensation on behalf of respondent No. 2.

The argument of the Insurance Company to the effect that the Company was not liable to pay interest, was also rejected observing that there was no such clause in the insurance policy to deny the interest which was otherwise payable in view of the settled proposition of law.

Challenging the aforesaid order of the Commissioner, Mewat under the Act, learned counsel for the appellant has vehemently argued that the impugned order has been passed illegally and cannot be sustained as admittedly respondent-claimant has suffered disability to the extent of 25% whereas he has been granted compensation to the extent of 100% which is not permissible in law. However, learned counsel could not support the aforesaid argument in view of the findings that the respondent-claimant had suffered injuries on his right leg and thus, he was rendered useless as he was not fit to carry on his profession.

In view of the aforesaid, no fault can be found with the impugned order.

No other point has been argued. Dismissed.