(Oral):

CM-6754-CII-2026

This is an application for condonation of delay of 14 days in filing the appeal.

For the reasons mentioned in the application, the same is allowed. Delay of 14 days in filing the appeal stands condoned.

Main case

1. Insurance company is in appeal aggrieved of the order dated 02.12.2025 passed by Commissioner under Employee’s Compensation Act, 1923.

2. The appeal arises out of claim application filed by injured- workman who suffered permanent disability to the extent of 50% owing to the injury suffered by him while getting down from the insured truck on which he was employed as a cleaner.

3. As per the claim application, the claimant who was employed as a cleaner was instructed by driver to get down from the truck and check the air pressure in the tyres. While the claimant was getting down, he slipped and fell on the roadside. Due to which he suffered injuries which rendered him permanently disabled.

4. Employment is not in dispute. The vehicle being insured by the appellant is not disputed. Injuries were proved by Dr. Dalip Kumar Behera, Medical Officer as PW2. As per the testimony of medical expert, the claimant suffered left side hemiparesis apart from locomotive disability. The doctor further testified that the applicant would not be able to walk or run fast, climb stairs, he would only be able to walk with the help of a stick. The Commissioner accordingly awarded compensation to the insured claimant taking his functional disability as 100%.

5. Mr. Aggarwal counsel for the appellant has assailed the findings recorded by the Commissioner. He submits that the liability should not have been fastened upon the insurer of the vehicle as the injury suffered by the claimant-workman is not on account of involvement of the vehicle in any accident, but owing to his own negligence as he slipped while alighting from the vehicle. It has been further contended that the Commissioner erred in taking functional disability of the claimant as 100% ignoring the testimony of the medical experts and the disability certificate as per which he was rendered permanently disabled only to the extent of 50%. It has been further contended that even if the claim can be held to be maintainable qua insurance company, there is no contract of insurance between the injured and the insurer to indemnify the insured with respect to personal injury suffered by cleaner, as the premium was only paid for driver.

6. I have heard counsel for the appellant and have carefully gone through the records of the case.

7. Section 3 of 1923 Act reads as under:-

                   “3. Employer's liability for compensation.—

                   (1) If personal injury is caused to an employee by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter:

                   Provided that the employer shall not be so liable

                   (a) in respect of any injury which does not result in the total or partial disablement of the employee for a period exceeding three days;

                   (b) in respect of any injury, not resulting in death or permanent total disablement caused by an accident which is directly attributable to

                   (i) the employee having been at the time thereof under the influence of drink or drugs, or

                   (ii) the wilful disobedience of the employee to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of employees, or

                   (iii) the wilful removal or disregard by the employee of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of employee.

                   (2) If an employee employed in any employment specified in Part A of Schedule III contracts any disease specified therein as an occupational disease peculiar to that employment, or if an employee, whilst in the service of an employer in whose service he has been employed for a continuous period of not less than six months (which period shall not include a period of service under any other employer in the same kind of employment) in any employment specified in Part B of Schedule III, contracts any disease specified therein as an occupational disease peculiar to that employment, or if an employee whilst in the service of one or more employers in any employment specified in Part C of Schedule III for such continuous period as the Central Government may specify in respect of each such employment, contracts any disease specified therein as an occupational disease peculiar to that employment, the contracting of the disease shall be deemed to be an injury by accident within the meaning of this section and, unless the contrary is proved, the accident shall be deemed to have arisen out of, and in the course of, the employment:

                   Provided that if it is proved,

                   (a) that an employee whilst in the service of one or more employers in any employment specified in Part C of Schedule III has contracted a disease specified therein as an occupational disease peculiar to that employment during a continuous period which is less than the period specified under this sub-section for that employment; and

                   (b) that the disease has arisen out of and in the course of the employment, the contracting of such disease shall be deemed to be an injury by accident within the meaning of this section:

                   Provided further that if it is proved that an employee who having served under any employer in any employment specified in Part B of Schedule III or who having served under one or more employers in any employment specified in Part C of that Schedule, for a continuous period specified under this sub-section for that employment and he has after the cessation of such service contracted any disease specified in the said Part B or the said Part C, as the case may be, as an occupational disease peculiar to the employment and that such disease arose out of the employment, the contracting of the disease shall be deemed to be an injury by accident within the meaning of this section.

                   (2A) If an employee employed in any employment specified in Part C of Schedule III contracts any occupational disease peculiar to that employment, the contracting whereof is deemed to be an injury by accident within the meaning of this section, and such employment was under more than one employer, all such employers shall be liable for the payment of the compensation in such proportion as the Commissioner may, in the circumstances, deem just.

                   (3) The Central Government or the State Government, after giving, by notification in the Official Gazette, not less than three months' notice of its intention so to do, may, by a like notification, add any description of employment to the employments specified in Schedule III and shall specify in the case of employments so added the diseases which shall be deemed for the purposes of this section to be occupational diseases peculiar to those employments respectively, and thereupon the provisions of sub-section (2) shall apply, in the case of a notification by the Central Government, within the territories to which this Act extends or, in case of a notification by the State Government, within the State as if such diseases had been declared by this Act to be occupational diseases peculiar to those employments.

                   (4) Save as provided by sub-sections (2), (2A) and (3) no compensation shall be payable to an employee in respect of any disease unless the disease is directly attributable to a specific injury by accident arising out of and in the course of his employment.

                   (5) Nothing herein contained shall be deemed to confer any right to compensation on an employee in respect of any injury if he has instituted in a Civil Court a suit for damages in respect of the injury against the employer or any other person; and no suit for damages shall be maintainable by an employee in any Court of law in respect of any injury

                   (a) if he has instituted a claim to compensation in respect of the injury before a Commissioner; or

                   (b) if an agreement has been come to between the employee and his employer providing for the payment of compensation in respect of the injury in accordance with the provisions of this Act.”

8. Keeping in view the aforesaid provision and the fact that the cleaner suffered injury while performing his duty, this Court does not find any reason to interfere in the findings recorded by the Commissioner that the injured claimant indeed suffered injury in an accident arising out of and during the course of employment.

9. The plea raised by Mr. Aggarwal with respect to absence of there being any accident involving the vehicle is misplaced. He wants to read the expression “accident” in a much narrower sense which would render the provision applicable only in the cases where there is a “motor vehicular accident”. In terms of the settled principle of statutory interpretation, the provision and the expression used, needs to be interpreted in pragmatic manner. The term expression needs to be interpreted in much wider sense. In view thereof, this Court finds that a person employed on the insured vehicle when suffers injury while performing his duties, it cannot be said that he has suffered injury in an accident in case the vehicle is not involved in a vehicular accident.

10. The issue with respect to granting compensation under the 1923 Act keeping in view the functional disability and not the permanent disability already stands answered by 04 Judges Bench in Pratap Narain Singh Deo vs. Srinivas Sabata (1976) 1 SCC 289 observing as under:-

                   “5. The expression "total disablement" has been defined in section 2(1)(l) of the Act as follows:

                   " "total disablement" means such disablement, whether of a temporary or permanent nature, as incapacitates a 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. Counsel for the appellant has not been able to assail it on any ground and it does not require to be corrected in this appeal." ”

11. Off late, the same has been followed again by the Supreme Court in Indra Bai vs. Oriental Insurance Company Ltd. and another (2023) 8 SCC 217, observing as under:-

                   “28. In light of the aforesaid decisions and the definition of the term “total disablement” as provided by clause (l) of sub- section (1) of Section 2 of the Act, it is the functional disability and not just the physical disability which is the determining factor in assessing whether the claimant (i.e., workman) has incurred total disablement. Thus, if the disablement incurred in an accident incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement, the disablement would be taken as total for the purposes of award of compensation under Section 4(1)(b) of the Act regardless of the injury sustained being not one as specified in Part I of Schedule I of the Act. The proviso to clause (l) of sub-section (1) of Section 2 of the Act does not dilute the import of the substantive clause. Rather, it adds to it by specifying categories wherein it shall be deemed that there is permanent total disablement.

                   29. In Mohd. Nasir (supra), which has been relied by the High Court, the workman was a cleaner. He had suffered fracture in the leg. It was held that such injury would not amount to permanent loss of the use of the entire leg. Hence, the disablement was found partial and not total.”

12. Applying the aforesaid parameter, a person who was working as a cleaner, i.e. was involved in manual jobs when he was rendered incapable of running or waking fast, climbing stairs or sitting in squat position and is unable to walk without the help of a stick, the functional disability has to be taken as 100% as the injured-workman is unable pursue his vocation and has lost his source of livelihood.

13. In view thereof, this Court finds no merit in the arguments raised by Mr. Aggarwal and the same is rejected.

14. The issue with respect to coverage of helper where the premium has been paid covering the driver and is subject to provisions of IMT-28 is no more res integara and has been answered by Supreme Court in Mangilal Bishnoi vs. National Insurance Company Limited (2022) 11 SCC 758 observing as under:-

                   “8. We have heard learned counsel for the parties and find that the High Court has accepted appeal on a make-believe argument that Cleaner or Helper engaged by the employer are engaged in two different duties and that a Helper is not covered by the insurance policy. The High Court has recorded a finding that admittedly deceased was a Helper. In the absence of any clear demarcation of duties of a Helper or a Cleaner and in view of the fact that Helper and Cleaner are interchangeably used, therefore, declining claim for the reason that deceased was engaged as a helper and not Cleaner is wholly unjustified. Additionally, the employer sought indemnification of five other employees engaged in loading or unloading activities by paying extra premium. It was for the insurance company to cross examine the witnesses produced by the claimant or by the owner to prove the fact that deceased was not engaged in loading or unloading activities. We find that the High Court has drawn a distinction between Helper and a Cleaner when none existed.”

15. In view of above, this Court finds no merit in the present appeal. The same is ordered to be dismissed.

16. Since the main case has been decided, pending miscellaneous application, if any, shall also stands disposed off.