High Court of Allahabad

Kailash Chandra Gupta Vs. Vinod Kumar Bhatia and Ors.

MANU/UP/4810/2018

17.12.2018

Labour and Industrial

Loss of earning capacity must be determined at 100 percent for entitlement to compensation

Present appeal has been filed challenging the award of the Commissioner. The contention of the Appellant is that, the loss of employment suffered by him should have been treated to be a 100% and not 55% since he was the Driver of the truck and by losing his one arm below the elbow he had suffered a permanent disability. The question in present case is whether the Appellant is entitled to his claim in accordance with the finding not recorded that the injured person has loss his earning capacity upto the extent of 100% because he is no more capable of doing his job which he was performing upto the date of accident.

The Appellant (injured employee) was discharged from service which fact has also been noted by the Claims Commissioner referring to the statement of the truck owner that because the left hand of the driver had been amputated, there was no further requirement of his services. That being so, on these facts the Appellant had completely lost his job since the owner of the vehicle himself declared that there was no further requirement of his services as a result of the injuries suffered by him and that his services had in fact been dispensed with. Therefore, in the case of the present Appellant, there was no question of him being adjusted against an alternative employment.

The Supreme Court in Raj Kumar Vs. Ajay Kumar & Another held that, if the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions and in that event the loss of earning capacity will not be 100 % as in the case of a driver or carpenter.

The judgment of the Supreme Court in the case of Raj Kumar would be squarely applicable to the facts of the present case as in the present case the Appellant has not only suffered amputation of his left hand but his services as driver have been dispensed with and the loss of employment is complete, therefore, in the facts of the present case, the loss of earning capacity of the appellant must be determined at 100%.The impugned award is quashed. The matter is remitted to the Commissioner, Workmen's Compensation Act, Kanpur to re-determine the compensation payable to the appellant. Appeal allowed.

Relevant

Raj Kumar Vs. Ajay Kumar & Another MANU/SC/1018/2010

Tags : Disability Compensation Grant

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