Chief Executive, Sahakar ... vs Devanand S/O Kawaduji Besekar
2017 Latest Caselaw 4390 Bom

        J-fa549.05.odt                                                                                               1/6      


                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                           NAGPUR BENCH, NAGPUR


                                      FIRST APPEAL No.549 OF 2005


        Chief Executive,
        Sahakar Maharshi Swargiya 
        Bapuraoji Deshmukh Shetkari 
        Sahakari Sut Girni, Plot No.D-14,
        MIDC, Sewagram Road,
        Taluka and District Wardha.                                                  :      APPELLANT

                           ...VERSUS...

        Devanand s/o. Kawaduji Besekar,
        Aged about 38 years,
        R/o. Near Std Pco,
        Kharangana Road, Sewagram,
        Taluka and District Wardha.                                                   :      RESPONDENT


        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        Shri S.G. Zinjarde, Advocate for the Appellant.
        None for the Respondent.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-


                                                      CORAM  :   S.B. SHUKRE, J.

th DATE : 12 JULY, 2017.

ORAL JUDGMENT :

1. This is an appeal preferred against the judgment and order

dated 28th June, 2005, rendered in W.C.C. No.4(3-B) 2003 by

Commissioner of Workman's Compensation, Wardha.

2. The respondent an employee of the appellant initially worked

as Ring Frame Sider and later on was shifted to House Keeping

Department's Waste Bales Press Machine Section. At the time of accident

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which occurred on 15.3.2001 he was working on the Waste Bales Press

Machine. The accident occurred between 11.00 and 11.30 a.m. of

15.3.2001. The right-hand of the respondent came inside the moving

part of the machine. According to the respondent, the hand suffered

substantial damage. He was first taken for treatment by the officials of

the appellant to the Sewagram Hospital and thereafter he was taken to

CIIMS Hospital for management of his injuries. The respondent claimed

that he suffered permanent disability to the extent of 60% of the total

functionality of the right hand and, therefore, he claimed compensation

from the appellant. The appellant did not respond positively. Therefore,

the respondent filed an application under Section 22 of the Workmen's

Compensation Act, 1923 (in short, "the Act, 1923") before the

Commissioner appointed under the provisions of the Act, 1923. On

merits of the case, the learned Commissioner found that the respondent

proved his claim regarding suffering of permanent disability during the

course of the employment without there being any negligence on the part

of the respondent and, therefore, granted him compensation of

Rs.2,22,882.40 together with 12% interest from the date of notice issued

by him i.e. 2.2.2002 till realization as per the impugned judgment and

order. Not being satisfied with the same, the appellant-employer of the

respondent has preferred the present appeal under Section 30 of the Act,

1923.

3. This appeal has been admitted by this Court on 16.12.2005,

on the following substantial question of law :

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Whether the learned Commissioner of Workmen's Compensation was justified in ruling that there was a permanent partial disability without proving of such disability by examining the doctor, who gave such certificate, that is, without thre being any evidence about disability ?

4. I have heard Shri S.G. Zinzarde, learned counsel for the

appellant. None appears for the respondent though duly served. The

respondent has also filed cross-objection in the matter, but there also he

is absent. I have gone through the record of the case including the

impugned judgment and order.

5. Although the learned Commissioner has found that the

respondent has proved in a reasonable manner his claim that he suffered

permanent disability in the accident which arose during the course of his

employment which was without any negligence on his part, I find that

the evidence adduced by the respondent suggests unquestionably

something different. In support of his claim, the respondent has placed

heavy reliance upon the certificate of permanent disability which is at

Exh.-34. This certificate has been proved in evidence by the respondent

through the evidence of PW 2 Dr. Pramod Ajit Jain. He was the doctor

who issued certificate at Exh.-34. Admittedly, he was not the treating

doctor. Admittedly, he issued this certificate without examining all the

medical papers relating to the treatment given to the respondent at

Sewagram Hospital as well as SIIMS Hospital at Nagpur. There is a clear

cut admission given in this regard by PW 2 Dr. Pramod Jain. He also

admits that he had asked respondent to produce before him all those

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medical papers, but the respondent did not make available those medical

papers to him. This certificate has been issued by Dr. Jain on 5.7.2003,

about a period of more than one year after issuance of the notice dated

2nd February, 2002 at Exh.-27. In the notice which has been heavily

relied upon by the respondent, a permanent disability of 50% has been

claimed. The certificate at Exh.-34, however, shows that in the opinion

of PW 2 Dr. Jain, the permanent disability was of 60%. In the notice at

Exh.-27, it is asserted that permanent disability certificate was issued by

one Doctor, Dr. R.K. Aade, Medical Officer, General Hospital, Wardha.

But, no medical certificate issued by Dr. Aade was tendered in evidence

by the respondent. Dr. Aade was also not examined as a witness by the

respondent. There is also another certificate issued by Dr. Lokendrasingh

of CIIMS Hospital, which is at Exh.-26. This certificate has been issued

on 7.9.2001. This has been proved in evidence by the respondent. This

certificate, which was issued almost about six months after the accident,

nowhere states that the respondent had suffered any disability, much less

permanent disability. On the contrary, this certificate, relied upon by

the respondent, clearly shows that whatever injury he had suffered was

curable in nature, which can be inferred from the contents of this

certificate. For the sake of convenience, the contents of this certificate

are reproduced thus :

"It is to certify that this gentleman has injury to all the three nerves of right-hand and there is no function in the hand. He needs repair of all these nerves. Total expenditure will be approximate Rs.40,000/- (Fourty thousands) only including all most

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everything.

Sign illegible.

Dr. Lokendra Singh."

6. The above discussion would show that certificate issued by

PW 2 Dr. Jain deserves outright rejection as it was contrary to the own

case of the respondent. His initial case was that the injury suffered by

him was reparable which he subsequently improved by submitting that in

the opinion of Dr. Aade he had suffered 50% of the permanent disability

which again he improved and stated that his permanent disability was to

the extent of 60%. In the process, the respondent neither examined Dr.

Aade nor Dr. Lokendra Singh and at the same time relied upon the

opinions of these doctors. Such contradictory stand taken by the

respondent has falsified the claim of the respondent that he suffered any

permanent disability.

7. A further boost to the above conclusion is received when it is

seen from the written statement of the appellant that the respondent

resumed his duty on 17.7.2001, was getting full wages as per his

attendance on work and performed his duty without any hindrance,

which facts have not been specifically denied by the respondent. If the

respondent had suffered some disability after he partially recovered from

the injury sustained by him in the accident, he would have certainly

brought that disability to the notice of his immediate superior on

17.7.2001, when he was allowed to resume his duty or immediately

thereafter. But, he did not do so. His such conduct would also go

against him and show that a false claim was lodged by him against the

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appellant.

8. All these aspects emerging from the evidence brought on

record by the respondent have been completely ignored by the

Commissioner and, therefore, the finding recorded by the learned

Commissioner regarding sustaining of permanent disability of 60% by the

respondent has to be termed as perverse and I find it to be so. The

substantial question of law is answered accordingly.

9. In the circumstances, this appeal deserves to be allowed.

10. The appeal stands allowed with costs.

11. The application filed under Section 22 of the Act 1923 stands

dismissed with costs.

12. The amount deposited with the learned Commissioner is

directed to be refunded to the appellant with interest, if any.

JUDGE

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