The Divisional Manager, Oriental Insurance Company Limited vs H.A. Raju Bin Arasaiah and Another

V. Jagannathan, J.—With the consent of the learned Counsel for the parties, this appeal is disposed of finally.

As regards the delay in filing the claim application before the Commissioner is concerned, though the accident occurred in 2001, the claim application was filed in the year 2006. Learned Counsel for the appellant referred to the provisions of Workmen''s Compensation Act, 1923 which limits the period of filing the claim application to two years from the date of the accident. However, in the instant case, the Commissioner has given reasons for condoning the delay and has also taken into account Section 5 of the Limitation Act, 1963 and has opined that sufficient cause was shown by the claimant for not preferring the claim application within the statutory period. Therefore, the submission made by the learned Counsel for the appellant in this regard cannot be accepted.

The appellant is Oriental Insurance Company Limited and it calls in question the order of the W.C. Commissioner, Mandya awarding a sum of Rs. 1,69,394/- to the respondent-claimant and the ground urged by the learned Counsel for the appellant is that the W.C. Commissioner erred in taking 40% loss of earning capacity and income taken is also on the higher side. It is submitted that the limb disability was put at 40% by the doctor and the same has been taken as loss of earning capacity percentage and therefore, the quantum be reduced.

On the other hand, learned Counsel for the respondent-claimant submitted that no interference is called for against the order of the Commissioner because the claimant being a driver, cannot drive as before following fracture caused to his leg and as such, the percentage taken by the Commissioner is just and reasonable. It is also submitted that the income taken is on the lower side because the claimant was getting Rs. 4,000/- per month with batta.

Having thus heard both sides as above, I am of the view that the percentage of earning capacity could have been taken at 30% having regard to the limb disability and consequently the compensation gets modified and in place of the amount given by the Commissioner, the appellant will be entitled to Rs. 1,27,045.80. Except the above modification, rest of the order of the Commissioner is kept intact.

The appeal is allowed to the extent of compensation being reduced as above. Excess amounts be refunded to the appellant. Claimant is at liberty to withdraw the amount.