$~20 * IN THEHIGH COURTOF DELHIAT NEW DELHI + FAO 149/2019&CM APPL. 15466/2019 NEW INDIA ASSURANCE COMPANY LTD. .....Appellant Through: Mr. Dharmendra Sharma and Mr. Neeraj, Advocates versus DINESH KUMAR & ANR. .....Respondents Through: Mr. R.K. Nain and Mr. Chandan Prajapati, Advocates (through VC) CORAM: HON'BLE MR. JUSTICE MANOJ KUMAR OHRI O R D E R % 23.07.2026 1. The present appeal has been preferred under Section 30 of the Employee’sCompensation Act, 1923 (hereinafter as the ‘EC Act’) assailing the Award dated 18.02.2019 passed by the learned Commissioner, Employee’s Compensation, whereby respondent No.1/claimant was held entitled to compensation on account of injuries sustained in an accident arising out of and during the course of his employment. Pursuant to the impugned Award dated 18.02.2019, the appellant deposited the entire awarded amount of Rs. 14,08,936/- before the learned Commissioner.Despite service, respondent No.2 has chosen not to appear before this Court. Vide order dated 04.03.2024, default notice was directed to be issued to respondent No.2 and it was made clear that in the event of non-appearance, the matter would be heard in its absence. Further, the office report dated 31.07.2024 This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 30/07/2026 at 14:54:26 noted that the default notice stands served. Despite the said opportunity, none appears on behalf of respondent no.2. Accordingly, the appeal is being decided in their absence. 2. Briefly noted, respondent No.1 was employed as a cleaner on Truck bearing registration No. HR-55W-4046, owned by respondent No.2. In the intervening night of 25/26.10.2016, while accompanying the truck during the course of employment, the vehicle met with an accident near Sira, District Tumkur, Karnataka. As a result thereof, respondent No.1 sustained grievous injuries to both his legs and remained hospitalized for treatment. The employer admitted the relationship of employer and employee as well as the occurrence of the accident during the course of employment. The appellant/Insurance Company also admitted that the offending vehicle was duly insured with it on the date of the accident. 3. Upon appreciation of the evidence, the learned Commissioner held that the accident had arisen out of and during the course of employment. The Medical Board assessed permanent physical disability at 42% in relation to the right lower limb. However, taking into consideration the nature of duties discharged by the claimant as a cleaner and relying upon the decisions in Pratap Narain Singh Deo v. Srinivas Sabata1,and National Insurance Co. Ltd. v. Pappu&Anr.2, the learned Commissioner concluded that the injuries had resulted in 100% loss of earning capacity, and accordingly computed compensation under the Act. 4. Learned counsel appearing for the appellant submits that the learned Commissioner committed an error in treating 42% permanent physical 1(1976) 1 SCC 289 2 FAO 289/2004 This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 30/07/2026 at 14:54:26 disability as 100% loss of earning capacity. It is contended that the claimant could not have been held to have suffered total disablement merely because his work involved physical labour and, therefore, the compensation awarded deserves to be reduced. 5. I have heard learned counsel for the parties and have carefully perused the record. 6. The fact that respondent No.1 was employed as a cleaner on the offending vehicle and suffered injuries in an accident arising out of and during the course of his employment is no longer in dispute. The employer herself admitted these facts in her written statement before the learned Commissioner. Equally undisputed is the fact that the vehicle stood insured with the appellant on the date of the accident. 7. The principal grievance raised by the appellant pertains to the assessment of 100% loss of earning capacity. The submission, however, overlooks the settled distinction between physical disability and loss of earning capacity under the Employees' Compensation Act. 8. The Supreme Court in Pratap Narain(supra), has authoritatively held that where, by reason of the injuries sustained, the workman becomes incapable of performing the work which he was engaged to perform at the time of the accident, the disablement has to be treated as total for the purposes of the Act. The emphasis under the statute is not merely upon the percentage of medical disability but upon the impact of the injury on the workman's earning capacity in the particular employment. 9. In the present case, the claimant was working as a cleaner on a commercial truck. The duties of a cleaner necessarily involve continuous physical exertion, including climbing on and off heavy vehicles, cleaning and This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 30/07/2026 at 14:54:26 maintaining the vehicle and other ancillary manual work. The learned Commissioner has recorded that because of the grievous injuries suffered to both legs, the claimant was rendered incapable of performing such duties. The said finding is based on the evidence led before the learned Commissioner and has not been shown to be perverse or unsupported by the record.Merely because the Medical Board assessed permanent physical disability at 42% would not ipso facto mean that the loss of earning capacity must also be restricted to the same percentage. It is well settled that physical disability and functional disability are distinct concepts. Once it is demonstrated that the injuries have rendered the workman incapable of discharging the duties attached to the very employment in which he was engaged, the Commissioner is justified in treating the loss of earning capacity as total.The learned Commissioner has also placed reliance upon the decisions in National Insurance Co. Ltd. v. Pappu&Anr.(supra) and RayapatiVenkateswara Rao v. MantaiSambasiva Rao 3 , wherein cleaners who had suffered serious permanent disabilities affecting their ability to perform manual work were held entitled to compensation treating the loss of earning capacity as 100%. The approach adopted by the learned Commissioner is, therefore, in consonance with the settled principles governing assessment of compensation under the EC Act. 10. It is trite that an appeal under Section 30 of the EC Act lies only on a substantial question of law. The determination of loss of earning capacity, based on appreciation of medical evidence and the nature of duties discharged by the injured employee, is essentially a finding of fact. The appellant has failed to demonstrate that the impugned Award suffers from any legal 3II (2001) ACC 300 This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 30/07/2026 at 14:54:26 infirmity or gives rise to any substantial question of law warranting interference by this Court. 11. Consequently, finding no merit in the appeal, the same is dismissed. 12. The interim order dated 03.04.2019 shall stand vacated. The amount lying deposited before the learned Commissioner, together with accrued interest thereon, if any, shall be released to respondent No.1/claimant in accordance with law. 13. Pending application(s), if any, also stand disposed of. MANOJ KUMAR OHRI, J JULY 23, 2026 kb This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 30/07/2026 at 14:54:26