Dilavar Noorali Kanani And ... vs The Oriental Insurance Co. Ltd. ...
2021 Latest Caselaw 1122 Bom

                                    (1)                                 ca6906.20

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD

                 18 CIVIL APPLICATION NO.6906 OF 2020
                           IN FA/4469/2017

        DILAVAR NOORALI KANANI AND ANOTHER
                      VERSUS
 THE ORIENTAL INSURANCE CO. LTD. THR ITS DIV. MANAGER
 Mr. Amit S. Deshpande, Advocate for the applicants
 Mr. D. P. Deshpande, Advocate for respondent No. 1
 Mr. D. S. Kulkarni, Advocate for respondent No. 2

                                 CORAM : V. L. ACHLIYA, J.
                                   DATE : 18-01-2021

 P. C.

 .                 The applicant/claimant [respondent No.1 in appeal] has
 preferred this application for withdrawal of amount deposited in
 W.C. No. 99 of 2013 decided vide judgment and order dated 22-04-
 2015 passed by the Commissioner for Employee's Workmens
 Compensation, Ahmednagar.


 2.               Heard learned counsel for the applicant/claimant and
 counsel representing the appellant/insurance company as well as
 the respondent No. 2-owner of the vehicle.


 3.               Mr. Dhananjay Deshpande, learned counsel for the
 appellant/insurance company opposed application with contention
 that the appellant/ insurance company has good case to succeed in


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                                        (2)                                 ca6906.20

 appeal. By referring to overall facts of the case the learned counsel
 submits that it has been brought on record that the claimant has
 got renewed his driving license after the accident. Prior to accident,
 the claimant was holding license to drive heavy motorcycle. Post
 accident the claimant has got renewed said license to drive the light
 motorcycle. In this background learned counsel submits that the
 renewal of license itself sufficient to draw inference that no
 permanent disability caused to claimant, so as to make him unfit to
 drive the vehicle and to earn the income. In that view the judgment
 and order passed by the Commissioner for Employee's Workmens
 Compensation to award the compensation of Rs. 5,63,292/- is not
 sustainable in law.


 4.               On the other hand, learned counsel for the claimant
 support the award passed by the Commissioner for Employee's
 Workmens Compensation. It is submitted that in the accident both
 the legs of the applicant were fractured. He was required to walk
 with the help of crutches. There is evidence to effect that there was
 malunification of bones which completely affected the functional
 disability of applicant to drive the vehicle as a driver. In the
 background the learned counsel submits that permanent disability
 caused to the claimant and the Commissioner For Employee's
 Workmens Compensation has passed reasoned order.


 5.               On due consideration of the submissions advanced and
 the    findings       recorded   by   the   Commissioner        For     Employee's


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                                           (3)                                    ca6906.20

 Workmens Compensation, I am of the view that there is arguable
 case to be considered in appeal. Considering the nature of injury
 and percentage of disability suffered by injured to the extent of
 25% as observed by the tribunal, I am of the view that the
 applicant deserves to be allowed to partially withdraw the amount
 to the extent of Rs. 2,00,000/-. Hence, the following order:-


                                          ORDER

i. The application is partly allowed.

ii. Out of amount of Rs. 5,63,292/- [Rupees Five Lakhs Sixty Three Thousand Two Hundred and Ninety Two] deposited with the Commissioner for Employee's Workmens Compensation by the appellant, the applicant is permitted to withdraw the amount of Rs. 2,00,000/- [Rupees Two Lakhs] on furnishing undertaking to the effect that in the event the judgment and order is set aside or modified, the applicant shall re-deposit the amount within eight weeks from the date of passing of such order.

iii. Undertaking to be furnished before the Commissioner for Employees Workmens Compensation. On furnishing undertaking the Commissioner for Employees Workmens Compensation is directed to pay the amount to the extent of Rs. 2,00,000/- by

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(4) ca6906.20

transferring the amount in his savings bank account.

iv. After making the payment of Rs.2,00,000/-, the balance amount be invested in the fixed deposit initially for a period of two years with standing instructions to re-invest the amount in fixed deposit till disposal of appeal.

v. The application is disposed of.

[ V. L. ACHLIYA, J. ]

VishalK/ca6906.20

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