- (1.) We have heard Sri Kuldip Shanker Amist, counsel for the appellant, and perused the record as also papers filed alongwith memo of appeal. This F.A.F.O. is preferred by the National Insurance Co. Ltd., appellant, challenging the award dated 25.3.2013 passed by Employees' Compensation Commissioner, Azamgarh, allowing the claim of legal representatives of the deceased to the tune of Rs. 9,78,480 together with simple interest @ 12% per annum w.e.f. 14.9.2011 in Case No. 142 of 2012, Amarjeet Kumar alias Dabloo v. Rajesh Yadav and another. The appellant has prayed for modification of the award by dismissing the claim petition and for cost throughout to the appellant.
(2.) The contention of learned counsel for the appellant is that the claimant-respondent No. 1 claimed only Rs. 6,44,280 as compensation, but the Employees' Compensation Commissioner illegally and arbitrarily allowed compensation of Rs. 9,78,480 which is more than amount claimed by legal representative of the deceased. According to learned counsel for the appellant, there is no provision under the Employees' Compensation Act and the Rules framed under the Act, to accept the affidavits of the parties. rather it was mandatory upon the Commissioner under Sections 23 and 25 of the Act for taking oral evidence in the case, therefore, passing of impugned award merely by considering and taking affidavits into account, the affidavits filed by claimant-respondent No. 1 and owner of Santro Car No. U.P. 64B 8434, he has committed an illegality. It is then argued that copy of driving licence produced by claimant-respondent No. 1 itself shows that it was issued for driving motor-cycle and Light Motor Vehicle (Pvt.) and not for L.M.V. (P.E.), i.e., a light motor vehicle, as paid employee.
(3.) Learned counsel for the appellant has also argued that the Employees' Compensation Commissioner has illegally and arbitrarily passed the impugned award fixing loss of earning capacity to the extent of 100%, merely because the claimant-respondent No. 1 had suffered fracture in his right leg which might create difficulty in driving a motor vehicle, but extent of loss of earning capacity of the claimant-respondent No. 1 has to be assessed. It is stated that this point has neither been considered by the Commissioner nor he has considered the nature of injuries on the basis of evidence on record yet holding that claimant-respondent No. 1 would not be able to perform his job of driving the vehicle due to injuries in his leg to the extent of 100% without assessing loss of earning capacity.;