Bombay High Court
The New India Assurance Co. Ltd. ... vs Shri. Hariram Sahebdin Yadav And ... on 3 August, 2021
Bench: Nitin W. Sambre
10.26192.15 fast.doc
ISM
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL ST NO. 26192 OF 2015
The New India Assurance Co. Ltd. ....Appellant
V/s
Shri. Hariram Sahebdin Yadav and another ....Respondents
WITH
INTERIM APPLICATION NO. 1556 OF 2021
IN
FIRST APPEAL ST NO. 26192 OF 2015
Shri. Hariram Sahebdin Yadav ....Appellant
V/s.
The New India Assurance Co. Ltd. .....Respondent
Mr. Devendra Joshi for original appellant
Ms. Rina Kundu for Respondent no. 1
CORAM : NITIN W. SAMBRE, J.
RESERVED ON: 23/07/2021
PRONOUNCED ON : 03/08/2021
P.C.:
1] This Appeal is by Insurance Company. Respondent no. 1 is a
claimant whereas Respondent no. 2 is Transporter. Accident in
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question occurred on 28/10/2010 when the claimant was working as
cleaner on commercial tanker No. MH-04-AL-6827 owned by
respondent no. 2.
2] It was the case of the claimant that on 28/10/2010, while he
was attending his duty as cleaner went for fetching water from nearby
garden. While returning, near his tanker, another tanker No. MCY-
2663 gave dash to him while negotiating the vehicle in reverse
direction.
3] As a consequence, claimant suffered serious injury and was
hospitalized from 28/10/2010 to 29/11/2010 at Golden Park
Hospital, Vasai where he claim to have expenses of Rs. 3,00,000/- for
his treatment. Claiming that he was earning Rs. 6,000/- per month,
at the age of 22 years, in the aforesaid accident, he suffered 41%
disability, however, 100% loss of earning capacity, claim was lodged.
4] The claim put forth under Section 4 of Workmen's
Compensation Act came to be allowed vide Judgment dated
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25/06/2015. As such, this Appeal by Insurance Company.
5] Shri. Joshi, learned counsel appearing for the insurance
company would urge that there is serious dispute about age of the
claimant, his status that of employee of respondent no. 2 and loss of
earning capacity. As such, question of law sought to be raised on the
aforesaid points as to whether claimant has demonstrated employer-
employee relationship, loss of 100% earning capacity and whether
accident has occurred in discharge of his duty. Mr. Joshi so as to
substantiate his contentions would invite attention of the testimony
of the appellant who was examined at Exh. U-18. According to him,
since the claimant was required to discharge duty while he was
working on the vehicle, and since the accident has occurred while he
was not discharging his duty, the claim ought not to have been
allowed. His further contentions are, but for the bare words of the
claimant, there is no material on record to infer employer-employee
relationship, particularly when employer was proceeded ex-parte. His
further contentions are, even age of the claimant is claimed to be that
of 22 years, and loss of his earning capacity to the extent of 100%,
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the disability is only 41% which fact was also not established. He
would invite my attention to the evidence of claimant, doctor and the
police investigation papers.
6] Learned counsel Ms. Rina Kundu, appearing for Respondent
no. 1 would support the judgment of the Tribunal and would urge
that no substantial question of law is involved so as to entertain the
Appeal. She would raise a grievance about non deposit of entire
decretal amount as was ordered by this Court and as such, sought
dismissal.
7] Considered rival submissions.
8] So as to establish the case for grant of compensation, claimant
examined himself at Exh. U-18. His brother who is complainant
before the police has specifcally narrated about the accident in F.I.R.
which is produced at Exh. U-19. Entire incident of accident as
refected in the papers of investigation speaks of presence of claimant
on the spot of the accident, in his capacity as cleaner of the tanker.
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In the police papers which are produced, presence of the tanker
owned by respondent no. 2 can also be inferred.
9] The police papers at Exhibit U-19 i.e. copy of F.I.R. is produced.
In the cross-examination of the claimant, appellant has failed to
demolish case of employer-employee relationship, happening of
incident in question i.e. accident. Question of law sought to be
canvassed cannot be seen to have any basis particularly in absence of
evidence to that effect. The evidence which is relied on by the
Tribunal for awarding compensation is suffcient to justify the award
of claim. The age of the claimant in the F.I.R. so also the entire
medical papers is refected as that of 22 years. It was expected of the
appellant insurance company to bring on record material to demolish
the aforesaid case of the claimant viz. his status as that of cleaner,
absence of employer-employee relationship, his salary of Rs. 6,000/-
per month and the occurrence of accident during his period of
employment. But for the cross-examination of the claimant and other
witness of the claimant, appellant has failed to examine any witness
in support of its case as has been sought to be put forth.
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10] Even if the appellant Insurance Company has claimed that
policy in favour of Respondent no. 2 employer was pending
confrmation, however, no statutory embargo is brought to the notice
of the Appellate Court to infer that in such an eventuality, the
claimant will not be entitled for compensation or the insured cannot
be extended with the beneft under the policy.
11] The claimant has specifcally deposed that at Golden Park
Hospital, his bill of treatment was Rs. 1,33,936/-, Rs. 5,410/-
towards medical test, Rs. 61,461/- towards cost of medicines. The
injury suffered by the claimant was proved through testimony of Dr.
Khanna at Exh. U-14. Claimant is informed to have suffered injury to
his right scrotum and multiple cuts on penile region which require
skin grafting. Claimant also suffered fracture to right and left pelvis
multiple cut injury to scrotum. He is unable to bend his legs and
climb stairs. That being so, it can be inferred that he is not in a
position to discharge his regular duty as a cleaner. Claimant suffered
injury to right and left penil fracture resulting in damage to sheath of
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tissue which was required to be corrected by carrying out surgery
thereon. Claimants right scrotum i.e. bag containing two rounding
male sex organs also got damaged. The aforesaid injuries will be pain
suffering for the claimant throughout his life.
12] As a consequence of injury suffered in the accident, it can be
inferred that entire pelvis region of the claimant got serious injury
and same has resulted into 41% disability. Injury certifcate is at
Exhibit U-24 which speaks of Pelvic injury. As a consequence of 41%
disability, Tribunal in my opinion has rightly inferred 100% loss of
earning as that of cleaner.
13] Tribunal as such proceeded to address the income of the
claimant and accordingly awarded the compensation. The
compensation awarded appears to be just and proper.
14] No question of law could be noticed in the case in hand and
that being so, Appeal in my opinion, deserves to be dismissed and
dismissed accordingly.
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15] Appellant Insurance Company has deposited entire decretal
amount, however, claimant alleged that amount deposited is short by
around Rs. 1,99,284/-. Let the said amount of Rs. 1,99,284/- be
deposited with Executing Court forthwith and the Executing Court
shall permit withdrawal of the amount after considering the
appropriate calculation. However, this will not preclude the claimant
from withdrawing the amount of Rs. 13,75,813/- lying in this Court
with interest accrued thereon upon furnishing usual undertaking to
the satisfaction of the Registrar Judicial.
16] In view of above, interim application stands disposed of
accordingly.
[NITIN W. SAMBRE, J.]
Digitally signed
IRESH by IRESH
SIDDHARAM
SIDDHARAM MASHAL
MASHAL Date: 2021.08.10
14:15:05 +0530
