Shriram General Insurance ... vs Shri. Deepachand @ Avinash M. ...
2016 Latest Caselaw 2 Bom

     suresh                                                      27-FA-219.2015.doc

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                 
                      CIVIL APPELLATE JURISDICTION
                       FIRST APPEAL NO.219 OF 2015




                                                         
     Shriram General Insurance Company
     Limited, E-8, Epip Ricco Industrial




                                                        
     Area, Sitapura-302 022.                                      ....  Appellant

              - Versus -




                                           
     1. Deepachand @ Avinash S/o Manoharlal
         Suryawanshi, Room No.52, 
                             
         Near Ambica House, LBS Marg,
         Mulund West, Mumbai-400 080.
                            
     2. Bhagwan R. Somaya,
         G-9, Barrack No.5, Mulund Colony,
         Zulala Road, Mulund West,
         Mumbai-400 080.                                          ....  Respondents
      
   



     Mr. Nikhil Mehta i/b M/s. KMC Legal Venture for
     the Appellant-Insurance Company.
     Mr. V.M. Parkar for Respondent No.1/Ori. Claimant.





                                      CORAM: MRS. MRIDULA BHATKAR, J. 

DATE : FEBRUARY 24, 2016

ORAL JUDGMENT:

1. Not on Board. The first appeal is taken up for

hearing and final disposal, by consent and on the request of

suresh 27-FA-219.2015.doc

learned counsel appearing for the parties.

2. In this first appeal, the Insurance Company has

challenged the Judgment and Award dated 30-6-2014 passed by

the Commissioner for WC & Judge, Third Labour Court, Mumbai

in Application (WCA) No.589/C-156 of 2011, thereby directing

the Insurance Company to pay compensation of Rs.7,48,728/-

with 12% simple interest from the date of the accident i.e.,

10-6-2011 till realization of the amount.

3. Respondent No.1 is the original claimant who was

employed as a Driver with respondent No.2 on his motor vehicle

i.e., Tempo bearing No.MH-03/AH-715. On 10-6-2011 when he

was on duty and driving, the vehicle met with an accident

wherein he sustained grievous injuries, i.e. crush injury over left

hand, fracture of 1st metacarpal, CLW over left palm, CLW over

left thumb, CLW over left cheek and multiple CLWs on right

forearm. He was issued a certificate that he has suffered partial

permanent disability of 50%. The disability certificate issued by

the R.M.O. of KEM Hospital certified the disability as 48%.

suresh 27-FA-219.2015.doc

However, the Labour Court relied on the evidence of Medical

Officer Dr. Naresh Khanna who has deposed that though there is

disability of 48%, there is 100% loss in the earning capacity of

the original claimant and the Doctor gave an admission in the

cross-examination that the original claimant cannot work as a

Driver in future. The original claimant at the relevant time was

drawing a salary of Rs.6,000/- per month and was aged 30

years. The Labour Court as per the Schedule of the Workmen's

Compensation Act, holding 100% loss of income, fixed the

compensation at Rs.7,48,728/-. Hence, this challenge by the

Insurance Company.

4. The learned counsel for the Insurance Company has

submitted that relationship of the respondent No.2 with

respondent No.1 as employer-employee, as also the salary of the

original claimant are not seriously contested and these facts are

proved by the original claimant. So these aspects need not be

discussed. The only point which is to be decided is, whether

50% of the physical disability, as certified by the doctors

considering the nature of the job of the original claimant can be

suresh 27-FA-219.2015.doc

treated as loss of 100% earning capacity?

5. The learned counsel for the Insurance Company has

produced an Extract of the Driving Licence issued by the R.T.O.

showing that the Driving Licence of the original claimant which

expired on 20-4-2013 was renewed on 7-10-2014 and was valid

till 20-4-2030 and the Award was passed on 30-6-2014. He

submitted that it is a subsequent development and therefore this

document is produced before the Court to show that the original

claimant is capable of driving the vehicle. He further submitted

that 50% loss of earning capacity based on the medical

certificate is disputed by the Insurance Company and therefore

the appeal is to be allowed.

6. The learned counsel for the original claimant has

countered the submissions of the learned counsel for the

Insurance Company. He relied on the injury certificate issued by

the R.M.O. of the KEM Hospital which shows 48% physical

disability and the accident alone has caused his incapacity to

work. He further submitted that the Insurance Company has not

suresh 27-FA-219.2015.doc

examined any witness to show that the loss of capacity to earn is

100%. In support of his submissions, he relied upon the ratio

laid down in the Judgment of a single Judge of this Court in the

case of National Insurance Co. Ltd. v. Rama and others,

reported in 2007 ACJ 1105.

7. As mentioned earlier, most of the facts are proved

and the only issue to be dealt by this Court is, whether 48%

physical disability will lead to loss of 100% earning capacity in

view of the nature of the work of the original claimant?

8. The original claimant is a Driver and he had

sustained injuries on face, fracture of metacarpal bone, crush

injury to his left hand, etc.. Thus, as per the medical certificate

issued by the KEM Hospital in the year 2012, there was swelling

and pain and difficulty in the movement of left hand. The

movement of fingers of the left hand are also restricted. It is to

be noted that his left hand do show that it is functional, though

there was a fracture to the left hand. In the case of National

Insurance Co. Ltd. v. Rama and others (supra), the learned

suresh 27-FA-219.2015.doc

single Judge has held that once the disability due to injuries is

proved through qualified medical practitioner, then the burden

shifts on the Insurance Company to bring evidence of rebuttal.

Thus the ratio cannot be disputed subject to the claimant to

prove the percentage of disability and which in the present case

is not 100% but is shown as 48%. To assess the percentage of

functional disability on the basis of the physical disability and

the nature of the injuries and the nature of the job, common

sense and wisdom has to be used. The original claimant is a

Driver and had sustained injuries to his left hand. It has become

non-functional upto to 48%. It is not the case of the original

claimant that the injury so sustained to his hand has led to its

amputation but it was a fracture of the metacarpal bone of left

hand. The fact that his driving licence is renewed after the

Award was passed is not denied. Under such circumstances, by

no stretch of imagination it can be said that the original

claimant has lost his 100% capacity to earn his livelihood by

using the skill of driving. The Insurance Company has not

tendered any further evidence to dislodge the medical evidence

suresh 27-FA-219.2015.doc

that there is no 48% disability. Therefore, the medical certificate

showing 48% disability is to be accepted. The original claimant

is a Driver and therefore he may drive for a short distance and

may not be in a position to drive comfortably and with the same

skill for a long route and longer time and therefore I am inclined

to accept, in addition to 48%, more 27% loss of his earning

capacity due to his physical disability and therefore it is held

that the loss of earning capacity of 100% is brought down to

75% of loss of earning capacity.

9. In view of the above, the appeal is partly allowed.

The impugned Judgment and Award is to be modified by

substituting 75% in the place of 100% loss of earning capacity

and accordingly fresh calculation as per the Schedule of the

Workmen's Compensation Act be made.

10. It is informed by the learned counsel for the

Insurance Company that the Insurance Company has deposited

Rs.10,49,040/-. Needless to say, in view of the above, the

original claimant now is entitled to claim and withdraw 75% of

suresh 27-FA-219.2015.doc

the said amount, including 25% of the amount which is already

withdrawn and the Insurance Company is entitled to claim

refund of the balance 25% of the said amount. If at all any

interest has accrued on the amount of Rs.10,49,040/-, the

amount of interest is also to be distributed as 75% and 25%.

11. The appeal stands disposed of in the above terms.

(MRIDULA BHATKAR, J.)