ARGUE

1st Appealant’s Advocate—Adv.Anusha.
Herein Insurance company is referred as first Appeallant/Defandant

Issues:
1. Whether this Court has jurisdiction?
2. Whether the Applicant was employed by opposite party no.1 ,If so whether the
accident happened during the course of duty
3. What was his wage and age?
1. First submissions of the appellant is based on the question that whether the
tribunal has jurisdiction to try the case . Tribunal has no jurisdiction to try the case
as the accident took place in the State of Maharashtra, and that the penalty
imposed is unsustainable as the Insurance Company is not liable to pay such
penalty. In support of this contention, judgment of the Supreme Court in New
India Assurance Company Limited v. Shiv Singh, 2000 (5) Supreme 137 is
referred .it was held in this case thatother words the insurance company will be
liable to meet the claim for compensation along with interest as imposed on the
insured employer by the Workmen's Commissioner under the Compensation Act
on the conjoint operation of Section 3 and Section 4A Sub-section (3) (a) of the
Compensation Act. So far as additional amount of compensation by way of
penalty imposed on the insured employer by the Workmen's Commissioner under
Section 4A(3)(b) is concerned, however, the insurance company would not remain
liable to reimburse the said claim and it would be the liability of the insured
employer alone.
2. The further contentions are that the Tribunal erred in awarding compensation
basing on the Medical, Certificate and determining the percentage of loss of
earning capacity/disability without examining the Doctor who treated the
workman, and without examining any other medical Expert. We the counsel have
relied on the learned single Judge of this Court in New India Assurance Company
Limited v. Sammayya, .
It is stated in case on hand, on account of the injuries suffered by the workman, it

has resulted in the amputation of the ring finger as well as the little finger and
there are certain restrictions over the other fingers which has resulted in
disablement. It is no doubt true that the workman is a driver.
When the disablement stated by the Doctor is 50% and there being amputation of
only two fingers, it is rather difficult to hold that the disablement of 50% in the
case of hand has resulted in 100% of the loss of earning capacity. The facts
mentioned in the decision supra cannot be made applicable to the facts of the
present case.
In that view of the matter, the finding of the Commissioner for Workmen's
Compensation fixing the loss of earning capacity at 100% is not sustainable and in
view of the clear evidence of the doctor, the disablement and the loss of earning
capacity has to be fixed only at 50% and not more than that. There is no dispute
regarding the age of the workman, the earnings and other factors. In that view of
the matter, the loss of earning capacity can only be taken as 50%."
At the same time, it should be noted that the permanent or partial disablement and
the loss of canting capacity are not one and the same. In other words, if the
Commissioner has evidence only to show the loss of partial or permanent total
disablement, but not the evidence to show the actual loss of earning capacity, he
cannot straight-away conclude that the loss of earning capacity of the workman is
equal lo the percentage of permanent or partial total disablement. That is the
settled position in Law. Reference to the Case Law is not necessary. If that is so
and the statute ordains that the Commissioner should have, to begin with, an
assessment of the loss of earning capacity by a competent qualified Medical
Practitioner for the purpose of computing the total compensation payable to a
workman under the Act, then such a procedure should be adhered to and any
departure from the statutorily fixed procedure should tantamount to an error of
Law"
3. The appeal by the Insurance Company is maintainable under Section 30 of the

WC Act as the question of percentage of loss of earning capacity is a question of
law, and a finding based on no evidence, and a finding which is perverse, gives
rise to a question of law. Reliance is placed on the judgment of this Court in Depot
Manager, APSRTC v. Abdul Sattar, . it was held in this case that the findings of
the Commissioner as regards the alleged accident and the connection between that
accident and the loss of eye sight by the respondent, are not supported by any
evidence on record or reason or logic and are based merely on conjectures and
surmises. Therefore, judge held that the respondent had not established any case
for claiming compensation under the Act. There is no evidence to support this
finding. As the finding is based upon no evidence, that is a substantial question of
law which entitled the applicant to maintain this appeal."
4. Further contending that we are denying the entire avertment made in the plaint and
contending that no documents whatsoever are produced to show that there is
relationship of Master and servant between the deceased and the owner of the
vehicle,The following question of law would arise for consideration in this appeal
that whether the commissioner was justified in fastening the liability upon the
appeallant Insurance Company in respect of workmen carried in the vegicle in
contravention of the motor vechicle act and who are not covered under the policy.
5. Lastly it is contended that the Motor Vehicles Act, 1988 (hereinafter called
'the M.V. Act') and the Workmen's Compensation Act (hereinafter called 'the
W.C. Act'), are independent enactment's, and therefore, the Insurance Company is
entitled to raise all the grounds as are availableThe learned Counsel placed
reliance on the judgment of the Karnataka High Court in New India Assurance
Company Limited v. Raja Naika, 1992 (65) FLR 97 (DB), it was held in this case
that under section 30(1) of the Workmen's Compensation Act, 1923, against an
award made by the Commissioner for Workmen's Compensation, by which it is
made liable to pay compensation for death or bodily injury of a person on the basis
of a certificate of insurance issued under sub-section (3) of section 147 in Chapter
XI of the Motor Vehicles Act, 1988, which is not founded on a ground by which
an insurer was entitled to defend under sub-section (2) of section 149 of the Motor
Vehicles Act an action for compensation is unmaintainable.

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1st Appealant’s Advocate—Adv.Anusha.

Herein Insurance company is referred as first Appeallant/Defandant

It is stated in case on hand, on account of the injuries suffered by the workman, it

3. The appeal by the Insurance Company is maintainable under Section 30 of the

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