HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No.286 of 2012 Sri Bbendra Kumar alias Bablu ………….Appellant Versus Sri Kirtiballabh Upadhyaya and another ......…..Respondents Present:- Mr. Neeraj Uprety, Advocate for the appellant. Mr. T.C. Pandey, Advocate for respondent no.1. Mr. D.C.S. Rawat, Advocate for respondent no.2/The United India Insurance Co. Ltd. Hon’ble Ravindra Maithani, J. (Oral) Instant appeal is preferred under Section 30 of The Employee’s Compensation Act, 1923 (“the Act”) against judgment and award dated 13.04.2012, passed in Workmen Compensation Case No.3 of 2011, Sri Bbendra Kumar alias Bablu Vs. Shri Kirtiballabh Upadhyaya and another, by the court of Workmen Compensation Commissioner/District Magistrate, Pithoragarh (“the case”). By it, the claimant was awarded Rs.1,57,298/- compensation. 2. Heard learned counsel for the parties and perused the record. 3. The appellant/claimant filed the claim petition on the ground that he was a driver under the employment of respondent no.1/Kirtiballabh Upadhyaya. On 16.08.2009, when the claimant was driving the vehicle bearing Registration No. UK05 6237 (“the vehicle”) under the employment of the respondent no.2/Kirtiballabh Upadhyaya near Nagina, District Bijnor the vehicle met with an accident, in which, the appellant/claimant sustained injuries. His right hand bone was fractured. He sustained injuries on his head 2 and right eye. He was operated on his hand and the doctor gave him 30% Disability Certificate. His sight of the right eye has gone. He is not able to drive the vehicle now. At the relevant time, he was 24 years of age and getting Rs.4,000/- per month salary. 4. The respondent nos.1 and 2, both filed their objections in the claim petition. According to the respondent no.1, the appellant/claimant was under his employment on the date of accident and the claimant has sustained injures. According to the respondent no.1, the vehicle was insured with the respondent no.2. 5. The respondent no.2 has also filed his objections and has denied the liability of the respondent no.2 to pay the compensation. On 05.08.2011, the following issues were framed in the claim petition:- i. Whether the driver of the vehicle bearing Registration No. UK05 6237 Bbendra Kumar alias Bablu sustained injuries in an accident which took place on 16.08.2011 in Police Station Nagina, District Bijnor? ii. What was the age and monthly salary of the claimant? iii. Whether at the time of accident, all the documents (insurance, driving license, etc.) of the vehicle were valid? iv. At what percentage permanent disability did the claimant sustain due to the injuries caused by the accident? v. What relief is the claimant entitled to and from which respondent? 6. In the impugned order, on issue no.1, it was held that the claimant sustained injuries in the accident. On issue no.2, it 3 was held that the claimant was 24 years of age and was drawing Rs.4,000/- per month salary. On issue no.3, it was held that all the documents of the vehicle were valid. On issue no.4, it was held that the claimant, in fact, 30% disabled due to the accident. On issue no.5, the impugned order records that though the total compensation comes to Rs.5,24,328/-, but since the disability is 30%, therefore, the claimant is entitled to 30% of Rs.5,24,328/-, which comes to Rs.1,57,298/- as compensation. The appellant is agreeable by it. 7. Learned Counsel for the appellant submits that Section 2(l) of the Act defines total disability, which relates to Schedule I, Part-I and Part-II. According to him, in the instant case, as per Schedule-I, Part-I of the Act, the percentage of loss of earning capacity of the claimant is 100% because he has lost the sight to the certain extent as he is unable to perform the work of driver now. 8. In addition to it, he would submit that the impugned order provides interest at the rate of 8% which it is argued, is not in accordance to the provisions of 4-A(3) of the Act, which provides that if the compensation is not paid within a month from the date it fell due, the rate of interest at the rate of 12% shall be provided. 9. On the other hand, learned counsel for the respondent no.1 submits that the claimant was being paid Rs.4,000/- per month salary by the respondent no.1. 10. Learned counsel for the respondent no.2/The United India Insurance Co. Ltd. (“Insurance Company”) submits that, in 4 fact, according to the claimant he had 30% sight loss, which fells under clauses 25 and 26 of Part-II, Schedule-I of the Act and the loss of earning capacity may accordingly be calculated at 30%. 11. Section 2(l) of the Act defines total disablement as follows:- “2(l) “total disablement” means such disablement, whether of a temporary or permanent nature, as incapacitates a employee for all work which he was capable of performing at the time of the accident resulting in such disablement: Provided that permanent total disablement shall be deemed to result from every injury specified in Part I of Schedule I or from any combination of injuries specified in Part II thereof where the aggregate percentage of the loss of earning capacity, as specified in the said Part II against those injuries, amounts to one hundred per cent or more” 12. Before discussion is made further, it is required to be seen as to what the witnesses have stated. The claimant had 30% Permanent Disability Certificate. As the witness, the claimant appeared as PW1. He has reiterated his version. According to him on 30.11.2011, he was given 30% Permanent Disability Certificate of his hand and similarly, for the loss of sight, he was given 30% Permanent Disability Certificate. He submits that earlier he was driving a vehicle he had valid driving license. But now, he cannot drive a vehicle. His license is not being renewed due to his disablement. 13. PW2 Dr. K.S. Mehta had given 30% Disability Certificate to the claimant. According to him, the right arm of the claimant had fractured. It was fixed with a plate and now, the claimant cannot drive a vehicle. Similarly, PW3 Dr. D.N. Mourya has also 5 given 30% Disability Certificate for sight loss of the claimant. He has also stated that now, the claimant would not able to drive a vehicle. 14. DW1 Kirtiballabh Upadhyaya is respondent no.1 and he has also stated that he was paying Rs.3,000/- per month salary to the claimant and Rs.50/- per day was also paid to him. He has clarified that in his objections, Rs.2,000/- per month salary has wrongly been stated, it is Rs.3,000/- per month. 15. In fact, learned counsel for the appellant submits that though the Disability Certificate is to the extent of 30% with regard to the fractured of the right arm and loss of sight, but he would submit that it has resulted into 100% of the loss of earning capacity of the claimant because now, he is not able to drive; his driving license is not being renewed. He submits that the claimant is entitled to be considered that he incurred 100% loss of earning capacity. 16. In support of his contention, learned counsel for the appellant refers to the principle of law as laid down by Hon’ble the Supreme Court in the case of S. Suresh Vs. Oriental Insurance Company Limited and anther, (2010)13 SCC 777. 17. In the case of S. Suresh (Supra), the claimant had suffered serious injuries in an accident, but his right leg had to be completely amputated, just below the knee. He claimed 100% loss of earning, which was provided to him by the Commissioner. But, in appeal, the High Court reduced the compensation by 50%. Before the Hon’ble Supreme Court it is argued that the claimant in 6 the case of S. Suresh (Supra) was driver. The loss of right leg ipso facto means a total disability, as understood in terms of Section 2(1)(l) of the Act and as such, the compensation payable to the claimant had to be considered on that basis. 18. In the case of S. Suresh (Supra), reliance was placed on the principle of law, as laid down in the case of Pratap Narain Singh Deo Vs. Srinivas Sabata and another, (1976)1 SCC 289. In this case, the Hon’ble Supreme Court has held as below:- “5. The expression “total disablement” has been defined in Section 2(1)(e) of the Act as follows: “(1) ‘total disablement’ means such disablement whether of a temporary or permanent nature, as incapacitates workman for all work which he was capable of performing at the time of the accident resulting in such disablement.” It has not been disputed before us that the injury was of such a nature as to cause permanent disablement to the respondent, and the question for consideration is whether the disablement incapacitated the respondent for all work which he was capable of performing at the time of the accident. The Commissioner has examined the question and recorded his finding as follows: “The injured workman in this case is carpenter by profession .... By loss of the left hand above the elbow, he has evidently been rendered unfit for the work of carpenter as the work of carpentry cannot be done by one hand only.” This is obviously a reasonable and correct finding. ” 19. Relying on the principle of law as laid down in the case of Pratap Narain Singh Deo (Supra), the Hon’ble Supreme Court in the case of S. Suresh (Supra), held that; “on account of amputation of his right leg below knee he is rendered unfit for the work of driver, which he was performing at the time of accident resulting capacity as lorry driver, more so, when he is 7 disqualified even getting a driving license.......” and accordingly, the compensation awarded by the Commissioner was restored. 20. Somehow, the facts are identical. In the instant case, the claimant was a driver. He lost vision of his right eye and his right arm has to be fixed by a plate. The doctor, who provided Disability Certificate, has stated that the claimant is not able to drive now. The claimant himself has stated that he is not able to drive now. His driving license is not being renewed. It is 100% earning loss to the claimant. Therefore, this Court is of the view that the total compensation, as calculated on issue no.5 i.e. Rs.5,24,328/- is to be paid to be claimant and it should not be calculated to any lower rate. 21. The impugned award also provides interest at the rate of 8%. It is also not in accordance with the provisions of the Act. Section 4-A(3) of the Act provides that if the compensation is not paid within a month from the date it fell due, the claimant shall be entitled to the interest at the rate of 12% per annum. It is also settled that the compensation falls due from the date of accident. 22. Accordingly, the appeal deserves to be allowed. 23. The appeal is allowed 24. The claimant is entitled to Rs.5,24,328/- as compensation. The accident took place on 16.08.2009. Therefore, one month after from this date, the claimant is also entitled to get interest at the rate of 12% on this amount. Accordingly, w.e.f. 8 15.09.2009 the claimant is also entitled to get interest at the rate of 12% per annum on the awarded amount i.e. on Rs.5,24,328/-. 25. (Ravindra Maithani, J.) 17.04.2026 Sanjay SANJAY KANOJIA Digitally signed by SANJAY KANOJIA DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=e50e50b49596520698eff87e0a08bbd504686df4d1afc60f54a 287831dec46fe, postalCode=263001, st=UTTARAKHAND, serialNumber=26EEB7122ED0DD23233A255DD8EC450A84B515A087C AEFD1B3179A7DEAE40699, cn=SANJAY KANOJIA Date: 2026.04.23 18:23:21 +05'30'