Bombay High Court
Balasaheb Namdeo Bhangarwade vs Shaikh Omar Kasimsab And Anr on 29 March, 2016
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 502 OF 2002
Balasaheb Namdeo Bhangarwade
Age 30 years, Occ. was in private
service with respondent and
at present unemployed
Shirshi, Tq. and District Latur ...Appellant
versus
1.
Shaikh Omar Kasimsab,
Age major, Occ. Business
R/o. Mataji Nagar, Latur
2. The Oriental Insurance Co. Ltd.
Through its Branch Manager
Branch Near Bus Stand, Latur
District Latur ...Respondents
...
Advocate for Appellant : Mr. R.R. Deshmukh h/f Mr. R. B. Deshmukh
Advocate for Respondent No.2 : Mr. A.A. Joshi
.....
CORAM : V. K. JADHAV, J.
DATED : 29th MARCH, 2016
ORAL JUDGMENT :-
1. Being aggrieved by the judgment and award passed by the
Commissioner for Workmen Compensation/Judge, Labour Court,
Latur, dated 19.7.2001 in W.C.A. No. 69 of 1999, the original
claimant has preferred this appeal.
2. Brief facts, giving rise to the present appeal, are as under:-
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a) The appellant-original claimant was working as labour
on vehicle bearing registration No. MCG-9 owned by
respondent No.1, on daily wages of Rs.80/- per day. The said
vehicle was insured with respondent No.2 for the period which
covers the date of accident. The said vehicle was being used
for transportation of sand. On 23.6.1999, accident had taken
place. The appellant-original claimant was unloading the sand
and suddenly without giving any signal or horn, driver of the
said vehicle started the vehicle. In consequence of which,
claimant fell down on the ground and sustained grievous
injuries to his right leg. The injuries on right leg sustained by
the appellant-original claimant resulted into permanent
disablement.
b) The appellant-original claimant had therefore, filed
W.C.A. No. 69 of 1999 before the Commissioner, Workmen's
Compensation for grant of compensation against the
employer as well as the insurer of the vehicle involved in the
accident. The learned Commissioner by its impugned
judgment and award dated 19.7.2011 partly allowed the said
application and thereby held that the appellant-original
claimant met with an accident arising out of and during the
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course of employment with respondent No.1 employer on
23.6.1999 and thus, both the respondents are jointly and
severally liable to pay the compensation of Rs.48,192/-. The
appellant-claimant, being aggrieved to the extent of quantum
of compensation, has preferred this appeal.
3. Learned counsel for the appellant submits the appellant-
claimant was doing the labour work prior to the accident. He was 31
years of old when the accident had taken place. The claimant had
sustained fracture to his right leg, which resulted into shortening of
his right leg by 2 cm. The Medical Officer, who has examined the
claimant has issued medical certificate certifying therein that the
claimant has permanent disablement to the extent of 20% of total
body. Learned counsel submits that the Commissioner has
considered the said disablement, as percentage of loss of earning
capacity erroneously and awarded lesser compensation to the
claimant. The Commissioner has not considered the opinion given
by the witness No.2 for the claimant viz. witness Dr. Satish
Deshmukh. Witness Dr. Satish Deshmukh has opined that there is
problem for the claimant in moving his right leg and he will have
pains while lifting the right leg moved at right side. Even witness Dr.
Deshmukh has expressed his opinion unequivocally that it is difficult
for the claimant to walk as well as lifting of weight, after the accident.
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Learned counsel submits that even the claimant has deposed before
the Commissioner that he cannot work as labour, as was doing prior
to the accident and he is suffering pains to his right leg and he
cannot lift his right leg. Learned counsel submits that even though
the claimant has sustained permanent disablement to the extent of
20% and the same is resulted into loss of his earning capacity to the
extent of 100%. Learned counsel submits that the claimant was
doing labour work prior to the accident, and the nature of permanent
disablement sustained by him affected his earning capacity to the
extent of 100%. Learned counsel submits that even though the
claimant has deposed that he was getting Rs.80/- per day as wages
from respondent No.1 employer, the Commissioner has not
considered the same and erroneously considered the wages of the
claimant of Rs.60/- per day, only on the basis of reply given by the
employer to the legal notice issued by the claimant wherein the
wages stated to have been paid to the claimant as Rs.60/- per day.
Learned counsel submits that respondent No.1 employer has not
examined himself on oath and claimant had no opportunity to cross
examine him on the point of his wages. Learned counsel submits that
in absence of any evidence on the point of wages by respondent
No.1 employer, the Commissioner should have considered the
wages of claimant as Rs.80/- per day, as deposed by him.
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Learned counsel for the appellant-claimant places reliance on
the judgment dated 10.1.2012, delivered by the Hon'ble Supreme
Court of India in the case of Mohan Soni vs. Ram Avtar Tomar and
Ors. In Civil Appeal No. 237 of 2012 (S.L.P. (CIVIL) No. 9850 of
2010).
4. Learned counsel for the respondent-insurer submits that the
claimant had sustained only 20% of permanent disablement and his
earning capacity is affected to that extent only. Learned counsel
submits that the claimant can effectively carry out the activities and
functions which he was carrying out prior to the accident. The
Commissioner has not committed any error in awarding the
compensation on the basis of the percentage of permanent
disablement treating the same as percentage affecting his earning
capacity. Learned counsel submits that the Commissioner has
rightly considered rate of daily wages as Rs.60 per day. Learned
counsel submits that there is no merit in the appeal and the appeal is
thus liable to be dismissed.
5. Learned counsel appearing for respondent No.1 is absent,
when called out.
6. The following points arise for my consideration and I record
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my findings on them for the reasons given below:-
Sr. Points Findings
No.
1. Whether the Commissioner has Partly in negative
rightly assessed the compensation
by considering nature of
disablement and loss of earning
capacity of the claimant in
consequence thereof?
2. Whether the impugned judgment Partly in affirmative.
And award call for interference?
3. What order? As per final order
REASONS
7. Point Nos. 1 and 2:- The appellant-claimant has examined
himself on oath before the Commissioner and his deposition is
marked at Exh.4. He deposed that he cannot work as labour. He is
suffering from pains to his right leg. He has further deposed that he
suffered fracture injury to his right leg and the right leg became
shortened due to accident. He has further deposed that he cannot
do any work after the accident. Even in his cross examination, he
has stated that he cannot walk without support. It is also recorded in
the cross examination that he had been to the Court on that day by
using crutches. Witness No.2 for the claimant Dr. Satish Deshmukh
has deposed that right leg of the claimant has shortened by 2 cm and
gait is not normal. He has further deposed that there is problem to
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the patient in walking. Even he has produced X-Ray to substantiate
his opinion. He has further deposed that there is problem for the
claimant in moving the right leg. While moving right leg and limp on
right side, witness Dr. Deshmukh has further opined that it is difficult
for the claimant to work as Majdoor including lifting of weight after the
accident. It thus appears that though the appellant-claimant has
sustained permanent disablement to the extent of 20% of the total
body, so far as the labour work, which he was doing prior to the
accident is concerned, because of shortening of leg and restriction
on free movement of the leg, his earning capacity is considerably
affected. It appears that the Commissioner has not considered the
same.
8. In the case of Mohan Soni vs. Ram Avtar Tomar (supra) relied
upon by learned counsel for the appellant, in para 13 of the
judgment, the Supreme Court has made following observations:-
"13. Ascertainment of the effect of the permanent disability on
the actual earning capacity involves three steps. The Tribunal
has to first ascertain what activities the claimant could carry on
in spite of the permanent disability and what he could not do as
a result of the permanent disability (this is also relevant for
awarding compensation under the head of loss of amenities of
life). The second step is to ascertain his avocation, professions
and nature of work before the accident, as also his age. The
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third step is to find out whether (I) the claimant is totally
disabled from earning any kind of livelihood, or (ii) whether in
spite of the permanent disability, the claimant could still
effectively carry on the activities and functions, which he was
earlier carrying on, or (iii) whether he was prevented or
restricted from discharging his previous activities and functions,
but could carry on some other or lesser scale of activities and
functions so that he continues to earn or can continue to earn
his livelihood."
9.
In the light of above observations, it can be said that the
appellant claimant is not totally disabled from earning any kind of
livelihood. However, at the same time, it has to be observed that the
claimant still cannot effectively carry out any activities and functions
as prior to the accident. However, the claimant could carry on some
other lesser activities and functions so that he continues to earn or
can continue to earn his livelihood. In the case in hand, there is
shortening of leg to the extent of 2 cm. Furthermore, as opined by
Dr. Deshmukh, there are restrictions on the movement of right leg
and claimant will have pains while moving the right leg. It is difficult
for the claimant to work as majdoor including lifting of weight after the
accident. In my considered opinion, permanent disablement
sustained by the claimant though to the extent of 20%, affected his
earning capacity to the extent of 60%.
10. So far as the daily wages earning of the claimant is concerned,
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the claimant has deposed that respondent No.1 was paying him
Rs.80/- per day. So far as the nature of work being carried out by the
claimant is concerned, he was loading and unloading the truck
carrying the sand. The learned Commissioner has committed error
while placing reliance only on the reply given by respondent No.1
employer to the legal notice issued by the appellant-claimant. It is
pertinent to note that the respondent employer has not examined
himself on oath and his reply is straight way considered. There is
nothing in the cross examination of the claimant to disbelieve him so
far as his contention in respect of daily wages of Rs.80/- is
concerned.
11. Thus, if daily wages of Rs.80/- multiplied by 30, the monthly
wages comes to Rs.2400/- and 60% of the same comes to
Rs.1440/-. Relevant factor for age of 31 comes to 205.95.
Rs.1440x205.95= Rs.2,96,568.00 and 60% of the same comes to
Rs.1,77,940/-. The claimant, thus is entitled to Rs.1,77,940/-. The
Commissioner, without assigning any reason, has awarded interest
from the date of order. Learned Commissioner should have granted
interest @ 12% p.a. from one month after the accident took place i.e.
from 23.7.1999 till realization of entire amount. I answer the points
accordingly and proceed to pass the following order:-
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ORDER
I. The judgment and award dated 19.7.2011 passed by
the Commissioner, Workmen's Compensation and
Judge, Labour Court, Latur in W.C.A. No. 69 of 1999
is hereby modified to the following effect:-
The respondents are jointly and severally liable to pay
an amount of compensation for Rs.1,77,940.00
(Rupees One lac seventy seven thousand nine
hundred forty only) to the claimant Basalehb Namdeo
Bhangarwade with interest @ 12% p.a. from
23.7.1999 till realization of entire amount with
proportionate cost thereof.
II. The rest of the judgment and award passed by the
Commissioner for Workmen's Compensation and the
Judge, Labour Court, Latur dated 19.7.2011 in W.C.A.
No. 69 of 1999 stands confirmed.
III. Award be drawn up accordingly.
IV. The appeal is accordingly disposed of.
( V. K. JADHAV, J.)
rlj/
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