The Oriental Insurance Co Nagpur vs Ganesh Uttamrao Lahabar & Others
2016 Latest Caselaw 1043 Bom

                                                                                Fa121.07
                                             1

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH 




                                                                               
                              NAGPUR.

                        FIRST   APPEAL     NO.   121     OF     2007




                                                       
    The Oriental Insurance Co. 
    Ltd., Divisional Office at 




                                                      
    Amravati through its 
    Divisional Manager, 
    Divisional Office No. II,
    Palm Road, Civil Lines,
    Nagpur.                                                         APPELLANT.




                                           
                              ig          VERSUS
                            
    1. Ganesh Uttamrao Lahabar,
    aged 30 yrs., Occu. Driver R/o
    Kawatha Kadu, Tq. Chandur 
    Railway, Distt.Amravati. 
      


    2. Indu Balkrishna Mate,
    (Mother of deceased owner)
   



    aged 45 yrs., Occu. Housewife
    R/o Kawatha Kadu, Tq. Chandur
    Railway, Distt. Amravati. 





    3. Balkrishna Domaji Mate
    (Father of deceased owner)
    aged 50 yrs. Occu. Agriculturist,
    R/o Kawatha Kadu, Tal Chandur 
    Railway, Distt. Amravati. 





    4. Sanjay Balkrishna Mate
    (Brother of deceased owner)
    aged 30 yrs. Occu. Doctor,
    R/o Kawatha Kadu, Tal.
    Chandur Railway, Distt.
    Amravati.                                                       RESPONDENTS.

Shri Pramod Pathak Advocate for the appellant.

None for the respondents.

                                                                                          Fa121.07


                                     CORAM:     A. S. CHANDURKAR  J.




                                                                                        
                                     Dated   :    MARCH  31, 2016.

    ORAL JUDGMENT: 




                                                                

This appeal filed under Section 30 of the Employees

Compensation Act, 1923 (for short, the said Act) takes exception to the

judgment of the learned Commissioner under the said Act whereby the claim

for compensation moved by the respondent no.1 has been partly allowed

granting compensation of Rs. 1,00,000/- with interest.

2] It is the case of the respondent no.1 that he was in employment

with the respondent nos. 2 to 4 as a Driver on a tractor. On 21/04/1997,

while driving the tractor, there was a mechanical failure as a result of which

the vehicle went out of control. The respondent no.1 suffered injuries as a

result of said accident and he lost two fingers of his left hand. On that basis

the respondent no.1 filed an application under Section 22 of the said Act

claiming compensation of an amount of Rs. 1,00,000/-.

3] The respondent nos.2 to 4 as well as the appellant filed their

replies and opposed the case as made out. On the basis of the evidence on

record the learned Commissioner allowed the application and awarded

compensation of sum of Rs. 75,000/- along with 9% interest. The owner of

the vehicle was also directed to pay 20% penalty on the amount of

compensation. Being aggrieved, the Insurance Company has filed the present

appeal.

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4] Shri Pramod Pathak, the learned counsel for the appellant

submitted that it was an admitted position that in the said accident the

respondent no.1 lost two fingers of his left hand. According to him in such

situation the aspect of grant of compensation would be covered by Schedule

II to the said Act and the compensation could not have been granted

notionally. According to him the age of the respondent no.1 was 30 years

and as per the injury mentioned at Item No.9 in Part-II of Schedule I to the

said Act the percentage of loss of earning capacity would be 20%. It was

therefore submitted that compensation was required to be calculated by

taking into consideration the injury suffered and by referring to Schedule I of

the said Act. It was thus submitted that the learned Commissioner was not

justified in awarding the compensation by treating the respondent no.1 as

permanently disabled.

5] None appeared on behalf of the respondent no.1 when the appeal

was heard on 30.03.2016. Hence, the appeal was kept for further hearing

today. Today also there is no appearance on behalf of the respondent no.1.

With the assistance of learned counsel for the appellant I have perused the

records of the case and I have gone through the impugned judgment. The

substantial question of law that arises for consideration of the present appeal

is framed as Question No. (IV) which reads as under:

Whether the injury suffered by the respondent No. 1 is a listed injury, listed at Item No. 9 of Part-II, Schedule- I of the Workmen's Compensation Act, which is a injury causing permanent partial disablement as per

Fa121.07

Section 4(1)(c)(i), the Commissioner is empowered to

termed it as a injury under Section 4(1)(b) while computing the amount of compensation?

6] The evidence on record indicates that the respondent no.1 was

working as a Driver on the vehicle owned by respondent nos. 2 to 4. As per

the driving license his date of birth is 09.06.1967. The accident in question

took place on 24.01.1997. The injuries sustained resulted in disability to the

extent of 25%. Though the respondent no.1 could not produce any salary

certificate the learned Commissioner treated the notional salary as Rs. 1000/-

per month.

8] Schedule IV to the said Act stipulates factor 207.98 when the age

is 30 years. Item 9 in Part-II to Schedule I indicates that if the injury suffered

is loss of two fingers of one hand the percentage of loss of earning capacity

would be 20. It is, therefore, clear that where an injury suffered results in

loss of two fingers then the percentage of earning capacity would be 20. The

learned Commissioner however proceeded to hold that on account of loss of

two fingers the respondent no.1 would not be in a position to drive the

vehicle and hence was held entitled for 100% compensation.

In the decision of the Hon'ble Supreme Court in Oriental

Insurance Co. Ltd. Vs. Mohd. Nasir and another 2009 ACJ 2742 which was

relied upon by the learned counsel for appellant it has been held that if the

injuries as specified in Schedule I to the said Act are suffered, the mode and

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manner provided for the purpose of calculating the amount of compensation

in the Schedule would apply. In view of aforesaid the respondent no.1 would

be entitled to receive compensation as specified by Item 9 of Part-II in

Schedule I to the said Act. As the age of respondent no.1 was 30 years the

factor applicable would be 207.98. The compensation payable would have to

be calculated by considering 20% of the monthly salary of Rs. 1000/-. The

same would come to Rs. 200/-. Applying the factor of 207.98 the same

would come to Rs. 41,596/-. It is, therefore, clear that the learned

Commissioner was not justified in treating the disablement as permanent for

grant of 100% compensation.

9] In view of aforesaid the substantial question of law is answered

by holding that the learned Commissioner was not justified in treating the

injury as one resulting in grant of 100% compensation. Accordingly it is held

that the respondent no.1 is held entitled for total compensation of Rs.

41,596/-.

10] In view of aforesaid the following order is passed:

1] The judgment dated 21.04.2004 passed by the learned

Commissioner in Application (WC) No. 1 of 1998 is partly modified.

2] It is held that the appellant is liable to pay an amount of Rs.

41,596/- to the respondent no.1 instead of an amount of Rs. 1,00,000/-.

After deducting the amount of no fault liability the appellant would be liable

Fa121.07

to pay the balance amount of Rs. 16,596/-. Rest of the award is maintained.

The respondent no.1 would be entitled to receive the balance amount of

compensation from the amounts deposited by the appellant before the

Commissioner for Workmen's Compensation at Amravati. After paying the

same the excess amount be refunded to the appellant.

The first Appeal is allowed in aforesaid terms with no order as to

costs.

                              ig                                         JUDGE
                            
      
   






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