* Employee's Compensation: Loss of earning capacity re-assessed to 50% considering combined physical disabilities.

The workman, Geeta @ Jitu @ Gitu, filed a claim application alleging she was working for M/s Sharma Garments (Management) since 24.07.2008 for monthly wages of Rs. 7,500/-

She claimed that on 24.05.2013, she sustained a fracture to her right leg when a lift chain broke and the lift fell while she and other employees were inside the building

The workman already suffered from post-polio residual paralysis in her left lower limb

The Management took her to a private hospital, Usha Memorial Orthopedic Centre, and she was discharged on 27.05.2013, with treatment continuing until 21.05.2014

The Management failed to appear before the learned Commissioner and was proceeded ex parte, but the ex parte award was set aside by the High Court, and the matter was remanded for fresh consideration

The learned Commissioner subsequently passed an award in favor of the workman

The workman was examined by the Medical Board of GTB Hospital, which certified 90% permanent locomotor impairment in her right lower limb on 11.05.2016

The learned Commissioner determined the loss of earning capacity at 25% and, considering her age as 28 years based on her Aadhar card, granted compensation of Rs. 3,89,508/-, along with a penalty of Rs. 88,952/-

Both the Management and the workman filed appeals challenging the award

1. Whether the learned Commissioner erred in disregarding the testimony of Rajinder Batra, a tenant, who stated that the claimant was not an employee

2. Whether the learned Commissioner erred in finding an employer-employee relationship between the Management and the workman

3. Whether the learned Commissioner erred in determining the workman's age as 28 years

4. Whether the learned Commissioner's reliance on the disability certificate indicating 90% disability of the right lower limb was erroneous

5. Whether the learned Commissioner correctly assessed the loss of earning capacity at 25%

6. Whether the workman is entitled to an enhancement of compensation with the loss of earning capacity calculated at 100%

The court primarily applied Section 30 of the Employee's Compensation Act, 1923, noting that the scope of appeal under this Section is limited to a substantial question of law

It reiterated that under the scheme of the Act, which is welfare legislation, the Commissioner is the last authority on facts

The court also indirectly applied the principles of employee-employer relationship determination, considering factors like medical arrangements made by the employer, consistent testimony of the worker, and payment of wages in cash

The determination of loss of earning capacity considers physical disability and its impact on the ability to perform work

The court found that the learned Commissioner had not erred in disregarding the testimony of Rajinder Batra, as his deposition was "completely silent" on whether the workman was employed by the Management

On the employer-employee relationship, the court upheld the Commissioner's finding, noting that the Management had signed the consent letter for the workman's surgery, made arrangements for her medical treatment, and consistently testified to working for the respondents for several years.

The court further observed that the Management's witnesses admitted to paying wages in cash, which explained the absence of formal wage records, thereby supporting the workman's claim of employment

Regarding the workman's age, the court found no impropriety in the learned Commissioner's reliance on the Aadhar card, which indicated an age of 28 years, despite other documents showing different ages

The court noted that the corrected disability certificate from GTB Hospital certified 90% permanent locomo tor impairment in the right lower limb, and a clerical error referencing the left leg was corrected

While the Commissioner had assessed the loss of earning capacity at 25% because the workman did not elaborate on the nature of her work, the High Court reassessed it at 50% given the physical disability in both lower limbs, one caused by the accident

It allowed the workman's appeal in part, concluding that the loss of future earning capacity should be reassessed at 50% instead of 25%, considering the established physical disability in both lower limbs, with one being a result of the accident

The matter was remanded back to the learned Commissioner for fresh computation of compensation based on the re-assessed loss of earning capacity and its grant

The amounts deposited by the Management were directed to be released to the workman