B. Amit Sthalekar ORDER
B. Amit Sthalekar, J.
1. Heard Sri. Prabhakar Tandon, learned counsel for the appellant and Sri. S.K. Mehrotra, learned counsel for the respondent-Insurance Company.
2. This appeal has been filed challenging the award of the Commissioner, Workmen's Compensation Act, Kanpur Region Kanpur dated 20.2.2002 in Claims Compensation Petition no. 27 of 2001 (Kailash Chandra Gupta Vs. Vinod Kumar Bhatia and another).
3. In this appeal, question no. D raises substantial question of law, which reads as under:-
"(D) Whether the appellant is entitled 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?"
4. Briefly stated the facts of the case are that on the night of 8.12.2000 at about 9'o clock, the appellant was driving truck no. U.P. 077/A-0967 belonging to the Opposite party no. 1-Vinod Kumar Bhatia and met with an accident. During the accident, the vehicle caught fire and the appellant was seriously injured and was taken by the cleaner of the vehicle to the Primary Health Centre where he was admitted and from there he was taken to the SLR Hospital, Kanpur where he was under treatment for three to four days and when there was no improvement he was admitted to the D.S. Nursing Home where his left arm below the elbow was amputated. An FIR was lodged by the cleaner-Joginder Singh. The case of the appellant was that he was being paid a salary of Rs. 2100/- per month plus Rs. 600 per day towards food. His case is that the vehicle was insured with M/s. Oriental Insurance Company Limited which was valid on the date of the accident and that his driving license was also valid. His contention was also that though he recovered from his injuries but he was not taken back in service. The case was contested before the Workmen's Claim Compensation Tribunal and the Commissioner, Workmen's Compensation taking the appellant's age to be 35 years and his salary to be Rs. 1500/- per month calculated the compensation at Rs. 197.60x800 and computing the loss of employment etc. to be 55% awarded him Rs. 97544.70/- with cost of Rs. 2000/-.
5. 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.
6. In rebuttal, Sri. S.K. Mehrotra, learned counsel for the respondent no. 2-Oriental Insurance Company relied upon a judgment of the Supreme Court reported in MANU/SC/0899/2009 : 2009 (3) T.A.C. 598 (S.C.) Oriental Insurance Co. Ltd. Vs. Mohd. Nasir and Another in which the Supreme Court held that the High Court was not correct in determining the loss of income at 100% since there was nothing on record to show that the respondents therein had suffered 100% loss of earning capacity. Paragraph 16 and 17 of the judgment is extracted below:-
"16. In determining the amount of compensation, several factors are required to be taken into consideration having regard to the Note. Functional disability, thus, has a direct relationship with the loss of limb.
Mohd. Nasir was a driver. A driver of a vehicle must be able to make use of both his feet. It was the case of the claimant that he would not be in a position to drive the vehicle and furthermore would not be able to do any other work. He was incapable of taking load on his body. It, however, appears that in his cross-examination, he categorically stated that only Chief Medical Officer had checked him in his office. No disability cer........