Disposed

The New India Assurance Company Limited v. Vijay Kumar and Another

Allahabad HC15 Jan 2025FAFO/51/2025

Case brief

AI extract

What is this about?

Insurance company appealed an employees' compensation award assessing 100% loss of earning capacity despite a 50% disability certificate. The High Court admitted the appeal on that substantial question of law, stayed the award's operation, directed release of 50% of the deposited amount to the claimant and listed the appeal for final hearing.

What did the court decide?

Appeal admitted on a substantial question of law; operation of award dated 06.11.2024 stayed; 50% of deposited amount to be released to claimant without security; balance invested pending further orde

The New India Assurance Company Limited vs Vijay Kumar and Another — Insurance | Allahabad HC (2025)

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Court No. - 36

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Case :- FIRST APPEAL FROM ORDER No. - 51 of 2025

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Appellant :- The New India Assurance Company Limited Respondent :- Vijay Kumar And Another Counsel for Appellant :- Anubhav Sinha Counsel for Respondent :- Satya Deo Ojha

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Hon'ble Kshitij Shailendra,J.

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Heard learned counsel for the parties.

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This is an appeal by Insurance Company challenging the award dated 06.11.2024 passed by Employees' Compensation Commissioner, Azamgarh in E.C.A. No.145 of 2022.

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Learned counsel for the appellant submits that disability certificate on record discloses disability of the injured claimant to the extent of 50% and nature of injury suffered by him was amputation of right foot stiffness ankle to some extent. Submission is that as per Section 4(1)(c)(i) of Employees Compensation Act, 1923 (hereinafter referred to as 'Act of 1923'), compensation has to be determined as per entry 22 of Part-2 Schedule-I and in that event, percentage of loss of earning capacity would not go beyond 50, however, the learned Commissioner, in the present case, has assessed the compensation treating the loss of earning capacity as 100%. Further submission is that there being no evidence on record to establish Rs.15,000/- per month as earning, the learned Commissioner has passed the award without there being any evidence.

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Per contra, Sri S.D. Ojha, learned counsel for the respondent No.1 submits that the assessment of loss of earning capacity falls within the realm of the Commissioner and such

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determination would be a pure question of fact and not a substantial question of law. As regards monthly income, it is contended that by virtue of amendments made in the Act of 1923 from time to time, on the date of accident in question, treating the monthly wages of the injured as Rs.15,000/- has statutory sanction. As regards loss of earning capacity, it is urged that the injured was a cleaner on a truck and in his examination-in-chief as well as cross-examination, he had clearly stated that on account of the aforesaid injury, he had become disabled to perform work as a cleaner. In support of his submissions, reliance has been placed by Sri Ojha on the following authorities:

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i) North East Karnataka Road Transport Corporation Vs. Smt. Sujatha, 2019 (11) SCC 514

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ii) Golla Rajanna Etc. Etc. Vs. The Divisional Manager & Another Etc. Etc., 2017 (1) SCC 45

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iii) Smt. T.S. Shylaja Vs. Oriental Insurance Co. & Anr., 2014 (2) SCC 587.

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5. Prima facie , I am of the view that statutory division and description of percentage of loss of earning capacity and distinction in entries contained in Part-I and Part-II of the Schedule-I read with Section 4 of the Act of 1923 has significance and though each case has to be decided on the basis of pleadings and evidence of the parties, the entries contained in the Schedule cannot be given a complete go by and discretion of the Commissioner has to be exercised accordingly. As regards determination of Rs.15,000/- as monthly wages, the Court does not find any good ground to take a different view from what has been taken under the order impugned.

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Matter requires consideration.

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The appeal is admitted on the following substantial question of law:

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"Whether the court below was justified in assessing 100% loss of earning capacity of the claimant ignoring the disability certificate certifying 50% physical disability and also in disregard of Part II of Schedule I of the Employees' Compensation Act, which specifies that the loss of earning capacity for the amputation of one foot should be assessed at 50%?"

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Issue notice to respondent No.2.

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Steps be taken by registered post within three weeks.

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Summon the photo-stat copy of the record of Tribunal within two months.

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Requirement of filing formal paper book is dispensed with.

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The appeal shall be heard after perusing the record. Learned counsel shall be at liberty to refer the relevant documents from record at the time of hearing.

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The entire amount awarded by the Tribunal has been deposited and concerned certificate has been attached to the memo of appeal.

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Until further orders of this Court, the effect and operation of the award dated award dated 06.11.2024 passed by Employees' Compensation Commissioner, Azamgarh in E.C.A. No.145 of 2022 shall remain stayed .

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The Tribunal shall release 50% of the amount already deposited by the appellant in favour of the claimant immediately on filing of an application by them, without asking for any security/surety. Share of minor claimant(s) (if any), shall be invested in fixed deposit scheme till he/she/they would

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attain majority.

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The remaining amount shall be invested by the Tribunal in any nationalized bank in the highest interest bearing security.

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Release of the remaining amount shall be subject to further orders that may be passed by this Court in the instant appeal.

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List before appropriate Bench for final hearing in July, 2025 .

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Order Date :- 23.1.2025 R.S. Tiwari

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Digitally signed by :- RAVI SHANKAR TIWARI High Court of Judicature at Allahabad

The New India Assurance Company Limited v. Vijay Kumar and Another

Case brief

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The New India Assurance Company Limited v. Vijay Kumar and Another

Case brief

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