Delhi Transport Corporation vs Gian Chand

Valmiki J Mehta, J.

C.M. No. 7789 of 2014 (exemption)

Exemption allowed subject to just exceptions.

C.M. stands disposed of.

FAO No. 130/2014 and C.M. No. 7788/2014 (stay)

This first appeal is filed u/s 30 of the Employee''s Compensation Act, 1923 (hereinafter referred to as ''the Act'') impugning the judgment of the Commissioner dated 24.2.2014 by which Commissioner has allowed the claim petition which was filed by the respondent herein.

The facts of the case are that the respondent was working with the appellant/Delhi Transport Corporation as a conductor since 7.4.1982. On 17.3.1997, when the respondent was performing his duty on route from Delhi to Dadri he received personal injury in an accident which resulted in multiple fractures in his left leg. As a result of the accident, the respondent became 41% permanently/totally disabled. The petitioner was thereafter declared fit for night duty and though his services were originally terminated, later he was reinstated with full back wages.

The respondent filed the claim petition for claiming compensation under the Act on account of the injuries caused by the accident arising out of and in the course of employment. The Commissioner has allowed the claim petition noting that the relationship of employer and employee is admitted as also the occurrence of the accident arising out of and in the course of employment. Commissioner also notes that wages are also admitted. Finally, for the sake of completion of narration, it is stated that even the extent of disability being 41% stands admitted because this averment was made in para 8 of the claim petition and specifically admitted as correct in para 8 of the written statement filed by the appellant before the Commissioner. Since all the aspects requiring grant of compensation stood admitted, Commissioner applied the statutory formula and awarded compensation of Rs. 90,612/- alongwith interest @ 12% per annum from the date of accident to the respondent.

4(i) Learned counsel for the appellant firstly sought to dispute the aspect with respect to 41% disability of the respondent, however, on being shown the record that the appellant had in the written statement specifically admitted the 41% disability, the first argument was not pressed.

(ii) At this stage, counsel for the appellant sought to change the argument to contend that 41% loss of disability will not mean 41% loss of earning capacity, however when asked to point out whether such a defence was taken up before the Commissioner, counsel for the appellant could not point out to this Court any para of the written statement filed before the Commissioner showing that such a defence is taken. Therefore, in my opinion, no substantial question of law arises u/s 30 so far as this argument is concerned, and existence of a substantial question of law is a sine qua non for an appeal to be entertained u/s 30 of the Act. I may also note the fact that so far as 41% disability is concerned, the medical certificate to this effect was filed on behalf of the respondent before the Commissioner. The first argument of the appellant is therefore rejected.

5(i) The second argument which was urged on behalf of the appellant was that the interest which has been granted in this case should not have been granted 30 days after the date of the accident but should have been granted 30 days after the date of the adjudication of the Commissioner. In support of this argument, reliance on behalf of the appellant is sought to be placed upon the judgment of the Supreme Court in the case of National Insurance Co. Ltd. Vs. Mubasir Ahmed and Another, .

(ii) No doubt, the judgment of the Supreme Court in the case of Mubasir Ahmed and another (supra) does state that interest has to be granted from 30 days after the date of adjudication and not from the 30 days after the date of the accident, however, I must point out that counsel for the appellant is not correctly arguing before this Court because the judgment in the case of Mubasir Ahmed and another (supra) has been held to be per incuriam in the subsequent judgment in the case of The Oriental Insurance Company Ltd. Vs. Siby George and Others, inasmuch as the ratio of Mubasir Ahmed and another (supra) is contrary to the ratio of a Division Bench of four Judges of the Supreme Court in the case of Pratap Narain Singh Deo Vs. Srinivas Sabata and Another, and which Division Bench of four Judges has held that interest is payable 30 days after the date of accident and not 30 days after the date of adjudication.

No other issue was urged before this Court. In view of the above, there is no merit in the appeal, and the same is therefore dismissed, leaving the parties to bear their own costs.