DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LIMITED Vs. BASAPPA AND ORS.

JUDGEMENT

(1.) Heard the learned counsel for appellant and learned counsel for the respondent.

(2.) The appellant is the Insurance Company seeking to question the award of compensation under the Workmen's Compensation Act, 1923 (hereinafter referred to as 'W.C. Act', for brevity). The substantial question of law raised in this appeal is whether the Commissioner for Workmen's Compensation was justified in assessing the loss of earning capacity at the rate of 100% as against the compensation of disability at the rate of 30% assessed by the Medical Practitioner, which is in consonance with the injuries mentioned at Serial No.36 of Part - II Schedule I of the W.C. Act. The accident is of the year 2009. It is on record that the claimant respondent was a driver of a lorry and had lost the vision in his left eye, as a result of the accident, during and in the course of employment, and therefore, the claim for compensation having been contested, the Commissioner has overlooked the assessment made by the Medical Practitioner as well as the Schedule prescribing the loss of earning capacity and has proceeded to accept the contention that there is 100% loss of earning capacity as the workman was employed as a driver and by virtue of the injury and disablement he was no longer capable of continuing as a driver and has concluded that this has resulted in 100% disability. Such a conclusion arrived at is not on the basis of any evidence tendered as regards total disablement, but only on the premise that the avocation in which the workman was engaged was as a driver, and that he was no longer capable of driving a lorry.

(3.) The learned counsel for the appellant would place reliance on a Full Bench decision of this Court in the case of Shivalinga Shivanagowda Patil and Others versus Erappa Basappa Bhavihala and Others, 2004 ILR(Kar) 193, to contend that the questions that were considered in the said decision were as follows: