Ismail Bashir Shaikh vs Jilani Mohammadsab Pathan And Anr
2017 Latest Caselaw 1619 Bom

                                  1                      FA 125.2001.odt

         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    BENCH AT AURANGABAD

                      FIRST APPEAL NO. 125 OF 2001

             ISMAIL BASHIR SHAIKH
             age 26 yrs, Occ. Nil,
             R/o Khandak Galli, Ausa,
             Dist. Latur.                          ..Appellant..
                                                  (orig claimant)
      
             VERSUS

     1.      JILANI MOHAMMADSAB PATHAN 
             age major, occ. Business,
             R/o Indira Nagar, Ausa, Tq. Ausa,
             Dist. Latur.

     2.  BRANCH MANAGER,
         The New India Assurance Co. Ltd.,
         Chandra Nagar, Opposite Shahu College,
         Latur.
                                          ..Respondents..
                                  ...
        Advocate for Appellant : Shri C.R. Deshpande 
      Advocate for Respondent 2 : Mr S G Chapalgaonkar 
                              ...
                  CORAM : V.K. JADHAV, J.

Dated: April 11, 2017 ...

ORAL JUDGMENT :-

1. Being aggrieved by the Judgment and award

passed by the Commissioner for Workmen's

Compensation and Judge, Labour Court, Latur dated

23.5.2000 in application W.C.A.No.4/1999 the original

applicant has preferred this appeal.

2 FA 125.2001.odt

2. Brief facts, giving rise to the present appeal are as

follows :-

a] The applicant was employed as a driver on a travel

bus bearing registration No.MH-A-3035. He was

appointed by respondent no.1 two years prior to the

accident. On 26.11.1998 the applicant was on duty. He

was driving the said travel bus and he was proceeding to

Ausa from Latur. On way at about 08.00 to 08.30 p.m.

said travel bus met with the accident involving one

another S.T.Bus and as such, the applicant has

sustained injuries on left leg and other parts of the

body. The injuries sustained by the applicant also

resulted into permanent disablement to the extent of

30% as certified by the Doctor. Thus, the applicant has

approached the Commissioner for Workmen's

Compensation by filing said application for grant of

compensation.

b] Respondent No.1 owner has raised contention that

the vehicle involved in the accident is insured with

respondent no.2 insurer and respondent insurer is

liable to pay the compensation.

                                      3                       FA 125.2001.odt

     c]      Respondent-insurer has also resisted the claim on 

various grounds. Those are not relevant since

respondent insurer has not preferred any appeal or

cross appeal. The learned Commissioner by its

impugned judgment and order dated 23.5.2000 directed

respondents jointly and severally to pay the amount of

compensation of Rs.66,301/- to the applicant. Hence,

this appeal.

3. The learned counsel for the appellant-original

applicant submits that, the learned Commissioner has

not considered the salaried income of the applicant for

determination of the compensation. Learned counsel

submits that the Commissioner has ignored the

evidence lead by the applicant on the point of his

salaried income and believed the respondent-owner on

the point of salary being paid to the applicant prior to

the accident. Learned counsel submits that, though

witness Dr.Vishwanath Jadhav has deposed before the

learned Commissioner that the applicant on account of

disablement sustained by him would not be able to drive

heavy vehicle like luxury bus as a driver, erroneously

4 FA 125.2001.odt

considered that earning capacity of the applicant was

affected to the extent of 50%. Learned Commissioner

ought to have considered the effect on the earning

capacity of applicant to the extent of 100%.

4. Learned counsel for respondent-insurer submits

that respondent no.1 owner has examined himself

before the Commissioner and he has deposed that he

was paying Rs.1,200/- p.m. to the applicant as a salary

for working as a driver on the said luxury bus and

Rs.25/- as a daily Bhatta. Learned counsel submits

that vehicle was duly insured with the respondent-

insurer and as such there was no reason for the

respondent-employer to depose falsely about salary

being paid to the applicant. Learned counsel submits

that witness Dr. Vishwanath Jadhav has deposed that

on account of permanent disability to the extent of 30%

as referred in the certificate, the applicant cannot drive

heavy vehicle like luxury bus as a driver. Thus, the

learned Commissioner has rightly appreciated the same

and accordingly held that said permanent disablement

has affected the earning capacity of the applicant to the

5 FA 125.2001.odt

extent of 50%. Learned counsel submits that, the

applicant may not be able to drive heavy vehicle like

luxury bus, but he can drive other motor vehicles

including L.M.V., non transport etc. Learned counsel

submits that the Commissioner has awarded just and

reasonable compensation in accordance with the

provisions of Workmen's Compensation Act. No

interference is required. There is no substance in the

appeal.

5. On careful perusal of the evidence lead by the

parties, it appears that, the applicant has deposed

about his salary and also examined one another driver

working with the same respondent-employer. Applicant

and said witness Vijaykumar have deposed before the

Commissioner that respondent-employer was paying

them Rs.2,300/- p.m. as wages for working as a driver

on his luxury bus and Bhatta of Rs.50/- per day. As

against this, respondent-employer has deposed before

the Commissioner that he was paying wages of

Rs.1,200/- p.m. to the applicant and daily Bhatta of

Rs.25/-. However, respondent-employer has admitted in

6 FA 125.2001.odt

his cross examination that he was paying total wages of

Rs.1,950/- p.m. to the applicant. He has also admitted

in his cross examination that he was paying Rs.2,000/-

p.m. to other drivers employed by him. I accept the

submission made on behalf of the respondent-insurer

that the respondent-employer had no reason to depose

falsely about wages being paid to the applicant when

vehicle involved in the accident is duly insured and

insurer would be liable to satisfy the award, if passed

against it. However, learned Commissioner has not

considered the wages of the applicant as admitted by

the respondent-employer in his cross examination. In

the light of those admissions, the learned Commissioner

ought to have considered the wages of the applicant at

Rs.2,000/- p.m. The learned Commissioner, however,

has erroneously considered the wages of the applicant

at Rs.1,200/- p.m.

6. So far as effect of the said permanent disablement

on the earning capacity of the applicant is concerned,

witness Dr. Jadhav has deposed before the

Commissioner that because of the permanent

7 FA 125.2001.odt

disablement of 30% sustained by the applicant which is

in the form of Compound ankle injury fracture, fracture

tarcel bone, compound fracture right femur, CLW to

great tow of right leg, abrasions over abdomen, to the

extent of fracture shaft femur 10%, right knee stiffness

10%, and due to ankle and foot injury 10%. The

applicant cannot drive heavy vehicle like luxury bus as

a driver due to the permanent disability. Considering

the nature of the said disablement percentage-wise as

described by witness Dr. Jadhav, learned counsel

appearing for respondent-insurer has rightly submitted

that the applicant can drive any other vehicle including

L.M.V. excluding heavy vehicle like luxury bus. In view

of the evidence of witness Dr. Jadhav and in the light of

the above submissions, I find no fault in the

observations made by the learned Commissioner that

because of the aforesaid disablement to the extent of

30% earning capacity of the applicant was affected to

the extent of 50%. However, if the wages of the

applicant considered at Rs.2,000/- p.a. re-

determination of the compensation as awarded by the

commissioner is required to be done.

8 FA 125.2001.odt

7. In view of the admission given by respondent

employer, I hold that the applicant was getting

Rs.2,000/- p.m. as wages and as such he is entitled for

the compensation as detailed in the following

paragraph.

8. The applicant was getting Rs.2,000/- p.m. as

wages. As per the provisions of Section 4 (1)(b) of the

Workmen's Compensation Act, 60% of the wages comes

to Rs.1,200/- p.m. and in view of the findings that said

disablement has affected earing capacity of the

applicant to the extent of 50%, the wages should be

taken at Rs.600/- and after applying relevant factor in

consonance with the age of the applicant i.e. 184.17

total compensation comes to Rs.1,10,502/-. Hence, the

applicant is entitled to the same and respondents are

jointly and severally liable to pay the same. Thus, the

impugned judgment and award requires modification.

Hence, following order.

ORDER

i]. Appeal is hereby partly allowed with costs.

                                         9                       FA 125.2001.odt

                 ii].    The   judgment   and   award   passed   by   the 

                         Commissioner             for             Workmen's 

Compensation and Judge, Labour Court,

Latur dated 23.5.2000 in the Application

(WCA) No. 4/1999 is hereby modified in the

following manner.

a] It is hereby declared that the applicant met

with an accident arising out of and in the

course of h is employment with opponent

no.1 employer on 26.11.1998. It is further

declared that, both the opponent no.1

employer and opponent no.2-The New India

Assurance Co. Ltd., are jointly and

severally liable to pay the amount of

compensation of Rs.1,10,502/-(Rs. One lac

ten thousand five hundred and two only)

alongwith interest @ 12% p.a. from the

date of accident i.e. 26.11.1998 till

realization of the entire amount.

iii] Rest of the judgment and award stands confirmed.

                                         10                      FA 125.2001.odt


                 iv].    Award   be   drawn   up   as   per   the   above 
                         modifications.


                 v].     Needless   to   say   that,   if   any   amount   is 

deposited and paid to the applicant, the same shall be a part of the modified award.

vi]. Appeal is accordingly disposed of.

sd/-

                                                 ( V.K. JADHAV, J. )
     aaa/-                                       ....