Bombay High Court
Shri. Hanamanth Albal Dy. ... vs Shri. Abhijit Alias Abhiman ... on 22 December, 2021
Bench: Madhav J. Jamdar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL (ST.) NO.24410 OF 2015
WITH
CIVIL APPLICATION NO.3229 OF 2018
Shri Hanamanth Albal & Anr. .... Appellants
Vs.
Shri. Abhijit alias Abhiman Tirsingh .... Respondents
More & Anr.
Ms. Nilima C. Sarvagod i/by Onkar Warange for Appellants
Mr. Mahendra Agavekar a/w Shraddha Chavan for for
Respondent No.1.
Coram : MADHAV J. JAMDAR, J.
Date : 22ND DECEMBER, 2021
P.C.:
1. Heard Ms. Nilima Sarvagod, learned advocate
appearing for the Appellants and Mr. Mahendra Agavekar,
learned advocate appearing for Respondent No. 1.
2. Mr. Agavekar, at the outset pointed out Section 30 of
the Employees Compensation Act, 1923 (hereinafter referred to
as "the said Act") and submitted that the appeal under the said
Section lies only on a substantial question of law.
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3. Ms. Nilima Sarvagod submits that the substantial
question of law involved in the present appeal is whether the
finding that Respondent No.1 on account of injury is 100%
disabled to work is contrary to the evidence on record. She
submitted that the evidence of witness No. 2 for Respondent No.
1 i.e. Dr. Shrikant Ranade clearly shows that the Respondent
No.1 has suffered permanent total disability of 45% and
submitted that therefore the said finding is contrary to the said
evidence. She further submitted that medical certificate of
Gandhi Hospital, Panvel produced on page 136 also mentions
that the appellant can carry out light duty work.
4. On the other hand, Mr. Agavekar submitted that the
factual position on record shows that the appellant is not in a
position to work 100%. He submitted that the said medical
certificate of Dr. Shrikant Ranade is regarding only permanent
total disability and by taking into consideration the factual
aspect, the learned Commissioner of Employees Compensation
has come to the conclusion that Respondent No. 1 is 100%
disabled to work.
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5. I have considered the rival submissions.
6. The factual position on record shows that the
Respondent was an employee of the Appellant since 1994. On
8th January, 2005, the incident took place when Respondent No.
1 was weighing 1 ton of iron bar at 700 to 800 degree Celsius
temperature and same was being loaded on the truck with crane
and during that process from the chain of crane iron rod was
fallen on the leg of the employee. On account of the same,
Respondent No. 1 suffered grave and serious injury on left and
right legs. Respondent No. 1 was admitted in Gandhi Hospital
and he was in the Hospital from 8 th January 2005 to 8th January,
2010. Thus, it is clear that the Respondent No. 1 was admitted
in the Hospital continuously for a period of 5 years. The
evidence of Dr. Shrikant Ranade, who is examined as witness
No. 2 by Respondent No. 1 is very much relevant. The relevant
portion of his examination-in-chief is reproduced hereinbelow :
"At present he has various deformity at right
ankle with a discharging sinus. Stiff ankle
joint with loss of liability of right foot. His X-
ray of right leg shows a mal united fracture
with steel wire in site. He has scar of skin
drafting over left ankle with fairly good
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range of movement. He has amputation of
left foot great toe which was due to some
previous injuries. He has great difficulty in
squatting, sitting cross legged and has
difficulty and climbing and up and down the
steps. He is unable to do manual labour. So
I have given him a permanent total disability
of 45%. The details of which are mentioned
in the certificate. Certificate now shown to
me. It is at Exhibit U-9."
7. The learned Commissioner for Employees
Compensation, Mahad has recorded following finding in
paragraph 9 of his judgment :
"9. On account of the accident, the applicant
has lost 100% disability to work. On his say,
on account of an accident, he cannot work
as before. However, Dr. Ranade as per his
Exh-U-8 on his examination, the applicant is
in trouble when he climbs up and down and
applicant has lost 45% of his potential to
work. One Vidya Gaikwad observed that
from Gandhi Hospital record, the applicant is
nearly 40% lost of potential as stated by
him, but in Exh. C-11, the above Dr. has
seen the applicant and given his observation
that the applicant has to be given light and
easy work. This means that the applicant is
totally unfit to work. The applicant even has
tendered his resignation. The applicant since
8/1/2005 to 8/1/2010 was under medical
treatment, and he was advised by Dr. only to
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do light work. Therefore, after the accident ,
the applicant cannot work as Draftsman and
on his left leg, serious injury exist and on
account of that, he cannot do even simple
work. Hence, he has tendered resignation to
his job. Observing the above existing facts,
the applicant is 100% disable to work, this
fact is crystal clear, hence, I answered point
No. 3 in the affirmative."
8. Perusal of the evidence of Dr. Shrikant Ranade and
reasoning of the Commissioner in paragraph 9, clearly shows
that there is no perversity in the finding recorded by the learned
Commissioner. On the basis of evidence, possible view is taken.
It is important to note that the Respondent No. 1 was
continuously admitted in the Hospital for 5 years. Therefore,
there is no substantial question of law involved in the First
Appeal, which is mandatory requirement of Section 30 of the
said Act. Therefore, the First Appeal is dismissed.
9. In view of dismissal of the First Appeal, Civil
Application, if any, does not survive, the same is accordingly
disposed of.
( MADHAV J. JAMDAR, J. )
