United India Insurance Co. Ltd vs Satish Bhimrao Pimpre And Anr
2018 Latest Caselaw 1122 Bom

                                                                                FA 4283/16   
  
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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                     BENCH AT AURANGABAD               
                                 
                               FIRST APPEAL NO.4283/2016

                                    United India Insurance Co.Ltd.,
                                    through its Branch Manager,
                                    Tilak Nagar, Latur,
                                    Through its Authorised Signatory
                                    Manager (Legal Hub),
                                    at Aurangabad.     
                                                      ...Appellant..
                                                      (Org.res.no.2)

                         Versus

                          1]        Satish s/o Bhimrao Pimpre,
                                    age 24 yrs., occu.nil,
                                    r/o Borgaon Kale Tq. & Dist.Latur.

                          2]
                  Jairaj Steel Industries,
                  E-44, Old M.I.D.C., Latur.
                  Dist.Latur.  Through its
                  Proprietor Jaiprakash
                  Balkishan Khatod. 
                                     ...Respondents... 
                                                      
                          .....
Shri V.R. Mundada, Advocate for appellant.
Shri S.S. Shinde, Advocate for respondent no.1.
Shri Girish Rane, Advocate for respondent no.2. 
                          .....
  
                           CORAM: M.S. SONAK, J. 

DATE: 30.01.2018

ORAL JUDGMENT :

1] Heard learned counsel for the parties.

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2] Learned counsel for the appellant submits that

this appeal requires to be admitted on the substantial

question of law, which is to be culled out from ground

No.IV to the appeal memo. In effect, he submits that the

injury sustained by the employee in this case is a

scheduled injury referred to at Entry No.4 Part II in

Schedule I appended to the Employees Compensation Act,

1923 and, therefore, it was obligatory on the

Commissioner to treat the loss of earning capacity at

only 60% and not 100% as has been considered by the

Commissioner. He submits that it is settled position in

law that once an injury is relatable to any of the

entries in Schedule I, then the same is to be deemed to

result in only permanent partial disablement and not

total disablement.

3] Learned counsel for the respondent no.1 -

employee makes a reference to the evidence on record as

also its evaluation by the Commissioner at paragraph

no.41 of the impugned judgment and order. He submits

that there is ample evidence on record that as a result

of the injury, the employee was rendered incapacitated

for all work, which he was capable of performing at the

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time of the accident resulting in such disablement. The

learned counsel submits that in such circumstances, this

is a case of "total disablement" as defined u/s 2(l) of

the Employees Compensation Act, 1923 (the said Act").

The learned counsel submits that in such a situation,

there arises no occasion to refer to Schedule I to the

said Act. He relies on Pratap Narain Singh Deo v.

Shrinivas Sabata & another (AIR 1976 SC 222); S. Suresh

v. Oriental Insurance Co.Ltd. & another (AIR 2010 SC

(Supp) 368) and Maharashtra Sugar Mills Ltd. v. Ashru

Jaiwant Tribhuvan (AIR 1966 Bombay 240) in support of his

submissions.

4] In the present case, there is no dispute that

the employee sustained injuries arising out of and in the

course of his employment. As a result of the injuries,

his left hand was crushed i.e. fingers, wrists up to

middle third and distal third junction of forearm with

all tendons, muscles, bones were crushed up to distal

third of forearm. As a result, such portion of his hand

had to be amputated.

5] The employee in support has produced both -

documentary as well as oral evidence. Dr.Rajkumar Datal,

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the registered medical practitioner as well as orthopedic

surgeon, was examined on behalf of the employee. He has

certified that the employee has sustained 65% permanent

disability resulting 100% loss of his earning capacity.

He has, however, issued a certificate estimating 42%

permanent disability. He issued a certificate regarding

loss of earning capacity being 100% since the employee on

the date of the accident was discharging duties as a

Helper.

6] The Commissioner has evaluated the oral and

documentary evidence on record and such evaluation finds

a reference in paragraph no.41 of the impugned judgment

and order, which reads as follows:-

"In view of the finding to issue no.1, it is ample clear that the applicant has proved the case that he has sustained serious injuries in an accident arising out of and in the course of his employment on 27/05/2010 and therefore he is entitled to receive compensation amount as per the then existing provisions of the Workmen's Compensation Act. In view of findings to issue no.2, it is clear that monthly wages of the applicant employee were Rs.3950/-. In view of findings to issue no.3, it is proved that applicant had completed 17 years of the age at

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the time of accident. So, relevant factor applicable to his case is 227.49. Dr.Rajkumar Datal (Exh.U-21), the registered medical practitioner has treated the patient in his hospital as an indoor patient. He has certified that the applicant has sustained 65% permanent disability resulting into 100% loss of his earning capacity. Doctor evidenced that he has estimated 42% permanent disability and he has issued the certificate. Again on that day he has issued a certificate regarding loss of earning capacity and his loss of earning capacity is 100% as a helper. Dr.Rajkumar Datal is Orthopedic Surgeon, he is registered medical practitioner. Dr.Rajkumar Datal evidenced that, on 27/05/2010 applicant came to his hospital with history of causing injury to his hand while working in the factory. Doctor examined him and in examination he found that there was crush injury to his left hand, fingers, wrists up to middle third and distal third junction of forearm with all tendons, muscles, bones were crushed up to distal third of forearm. He was admitted in his hospital for a period from 27/05/2010 to 07/06/2010. The witness treated him by taking x-ray of his injured limbs. He has undergone operation and during operation his left arm is amputed from middle third distal junction. On 08/10/2010, the witness examined him radiologically and clinically and in that

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examination doctor assessed that the applicant employee has sustained permanent physical disability to the extent of 65% and accordingly, he has issued certificate. Doctor has identified his signature thereon and also admitted contents therein to be true and correct. Disability certificate is at Exh.U-22. It is evidenced that applicant is unable to do any work in future and because of that eh has assessed that applicant has sustained total loss of his earning capacity. Accordingly, the witness has issued certificate Exh.U-23, which is duly proved and exhibited by admitting contents therein to be true and correct. In the result, I hold and conclude that the applicant has sustained 65% permanent partial disability resulting into 100% loss of earning capacity. As such, compensation amount will have to be calculated on the basis of 100% loss of earning capacity. After taking into account aforesaid factors and the provisions of law I found that lump sum compensation amount Rs.5,39,151/- has become due and payable to the applicant on account of injuries sustained to him due to accident arising out of and in the course of his employment with the respondent no.1 on specified date. Therefore, issue no.4 is answered in terms of amount Rs.5,39,151/-."

7] Section 2(l) of the said Act defines "total

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disablement" to mean such disablement, whether of a

temporary or permanent nature, as incapacitates an

employee for all work which he was capable of performing

at the time of the accident resulting in such

disablement. The proviso, however, provides that

permanent total disablement shall be deemed to result

from every injury specified in Part I of Schedule I or

from any combination of injuries specified in Part II

thereof where the aggregate percentage of the loss of

earning capacity, as specified in the said Part II

against those injuries, amounts to one hundred per cent,

or more.

8] The crucial portion of the definition of the

expression "total disablement" in Section 2(l) of the

said Act is the incapacitation of the employee for all

work, which he was capable of performing at the time of

the accident resulting in such disablement. In this

case, based upon oral as well as documentary evidence,

the Commissioner has recorded a finding of fact that as a

result of the injury, the employee was incapacitated for

all work, which he was capable of performing at the time

of accident resulting in such disablement. Since such a

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finding of fact is borne out, both from oral as well as

documentary evidence on record, there is no case made out

to interfere with such finding of fact. In any case, the

record of such finding of fact does not give rise to any

substantial question of law, which is a pre-condition for

entertainment of any appeal u/s 30 of the said Act.

9] In Pratap Narain Singh Deo (supra), carpenter

suffered amputation of his left hand above the elbow. In

these circumstances, the Supreme Court held that since

the carpenter cannot work with one hand, the disablement

is to be treated as total and not partial. The

contention similar to the one now raised in this appeal

with reference to Item 3 of Part II of Schedule I was not

entertained inter alia on the ground that no such case

was even set out before the Commissioner and in any case

the evidence on record did not bear out such a position.

In the present case as well, it does not appear that the

ground, which is now being urged in this appeal was

raised before the Commissioner. In any case, the factual

aspect of such ground cannot be said to be borne out from

the material on record. In fact, the material on record

is sufficient to sustain the finding of total disablement

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as defined u/s 2(l) of the said Act. Entry No.4 of Part

II in Schedule I, to which reference is made, speaks

about loss of a hand or of the thumb and four fingers of

one hand or amputation from 11.43 Cms. below tip of

olecranon. There is no evidence on record to suggest

that the injury sustained by the employee falls within

the precise terms of Entry No.4 on the basis of which the

argument is sought to be developed by the learned counsel

for the appellant.

10] The rule in the case of Pratap Narain Singh Deo

(supra) was reiterated by the Supreme Court in S. Suresh

(supra). The ruling in Maharashtra Sugar Mills Ltd.

(supra) is not so relevant because in the said case,

there was variance between the opinion of the

Commissioner and the opinion of the doctor who had issued

the medical certificate. In the present case, there is

no variation. The Commissioner agrees with the opinion

expressed by the doctor and finding is quite consistent

with the medical certificate issued by the doctor. The

case of the employee in the present matter is, therefore,

on a better footing than the case of the employee in the

case of Maharashtra Sugar Mills Ltd. (supra).

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11] In view of the aforesaid reasons, since no

substantial question of law is made out, this appeal is

dismissed. There shall be no order as to costs.

12] The amount of compensation, which is already

deposited bay the appellant, shall, therefore, now be

withdrawn by the respondent no.1 - employee

unconditionally.

(M.S. SONAK, J.)

ndk/c3011819.doc