Bombay High Court
Tata Aig General Insurance ... vs Shri Sudhakar Ramdas Deshmane And ... on 14 July, 2021
Bench: Nitin W. Sambre
10.2760.20 ia.doc
BDP-SPS
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BHARAT
DASHARATH
PANDIT
CIVIL APPELLATE JURISDICTION
Digitally signed by
BHARAT
DASHARATH
PANDIT
Date: 2021.07.22
19:36:21 +0530
FIRST APPEAL NO. 732 OF 2018
WITH
CIVIL APPLICATION NO. 2180 OF 2018
IN
FIRST APPEAL NO. 732 OF 2018
Tata AIG General Insurance Company ....Applicant
Limited
V/s.
Shri. Sudhakar Ramdas Deshmane and another ....Respondents
WITH
INTERIM APPLICATION NO. 2760 OF 2020
IN
FIRST APPEAL NO. 732 OF 2018
Shri. Sudhakar Ramdas Deshmane ....Applicant
V/s.
Tata AIG General Insurance .....Respondents
Co. Ltd. And another
----
Mr. Devendra Joshi for appellant and applicant in CAF and for
Respondent in IA
Mr. Tejesh Dande a/w Bharat Gadhvi I/B Tejesh Dande & Associates
for Respondent no. 1 in FA and for Applicant in IA
1/6
10.2760.20 ia.doc
CORAM : NITIN W. SAMBRE, J.
DATE: JULY 14, 2021.
P.C.:
1] In view of the rival claims of the parties, on 14/1/2021, this
Court, while dealing with the prayer of the claimant for withdrawal
of compensation deposited by the Appellant/Insurance Company,
noted that appeal itself can be taken up for final disposal by
formulating questions of law.
2] In the aforesaid backdrop, appeal is taken up on final hearing
board and heard finally by consent of parties.
3] Impugned in the appeal is an award delivered by the
Commissioner for Employees' Compensation and the Judge, First
Labour Court, Nashik in Application W.C. (NF) No.21 of 2014.
Appellant and the Employer were jointly and severally directed to
pay Rs 9,09,888/- as compensation with interest @ 12% per annum
with effect from 21/9/2013. The Appellant was also directed to pay
penalty of 50% of the compensation amount.
10.2760.20 ia.doc
4] The facts necessary for deciding the present appeal are, while
working as a driver with the Respondent-Employer, claimant was
drawing wages of Rs 8,000/- per month. The Employer was an
owner of the Truck bearing No MH-15-DK-8595, which was
ensured with the Appellant. On 21/9/2013, claimant met with an
accident during the course of his employment as a driver on the
aforesaid Truck, resulting into sustaining serious injury to his right
leg (compound fracture) and other bodily injuries. As a consequence,
he could not walk properly. After the accident, offence punishable
under Sections 279, 337, 338, 304-A, 427 of IPC and under Section
184 of the Motor Vehicles Act came to be registered. Based on the
aforesaid claim, petition was moved which is allowed vide impugned
order.
5] While questioning the order impugned, the first issue which is
sought to be raised by the learned Counsel for the Appellant-
Insurance Company in the form of question of law is, "whether in
the absence of valid license, claimant was entitled to claim
compensation as the same is in breach of the policy of the Appellant".
So as to buttress the aforesaid argument, Mr. Joshi, the learned
Counsel for the Appellant would invite attention of this Court to the
fact that claimant's license was initially valid up to 20/9/2014 and
10.2760.20 ia.doc
thereafter same was renewed from 4/3/2015 till 3/3/2018. That
being so, according to him, on the date of the accident i.e. on
21/9/2013, the claimant was not holding valid license. The second
issue as has been raised in the form of question of law is, "whether
the claimant has suffered any loss of earning." The third question of
law referred is, "whether there was an employer-employee
relationship."
6] As far as the question of law in relation to valid driving license
is concerned, neither the said issue was raised during the proceedings
before the Commissioner when the impugned judgment/award was
delivered nor any documentary evidence to that effect is brought
before this Court under the provisions of Order 41 Rule 27 of the
CPC. The vague claim appears to have been raised by the Appellant
at this stage of the proceedings. In absence of any material but for the
words of the learned Counsel for the Appellant to substantiate the
said claim such contention cannot be even looked into. Apart from
the fact that the said contentions cannot be accepted in the absence
of any pleadings and evidence to that effect, the said ground was
verymuch available to the Appellant when the claim petition was
decided, however same was never pleaded by the Appellant before
the court below. As such, said contentions are rejected.
10.2760.20 ia.doc
7] So far as the issue of loss of earning capacity is concerned, the
Tribunal has specifically dealt with the evidence of the claimant at
Exh.U-16 and the expert witness Dr. Gauttam Keshav Silwant at
Exh. U-25. The fact remains that the Appellant has not cross-
examined the said doctor. The age of the claimant was certified from
his School Leaving Certificate produced at Exh. U-18. The other
documents such as disability certificate at Exh.U-20, medical bills at
Exh. U-21, copy of the driving licene at Exh. U-25 and the police
papers in relation to the accident at Exh. U-26 and U-27 were duly
taken into account. The employer in his Written Statement though
denied the claim, has admitted employer-employee relationship, so
also monthly pay of the claimant of Rs 8000/-
8] As such, the Tribunal has rightly considered the age of the
claimant as 38 years and per month earning of Rs 8000/-. The
evidence of Dr. Gauttam to the extent of claimant having 25%
disability, resulting into 100% loss of earning capacity. As a
consequence of the injury suffered by the claimant, he has
established that he is not in position to perform the similar job. He
was also certified to be unable to walk properly.
10.2760.20 ia.doc
9] In my opinion, no question of law is involved in the present of
appeal. As such, appeal fails and same stands dismissed.
10] As a consequence of above, Civil Application No.2180 of 2018
filed by the Appellant for grant of interim relief stands rejected.
However, Interim Application No.2760 of 2020 filed by the claimant
for withdrawal of the entire compensation amount is allowed. It shall
be open for the claimant to withdraw the amount of compensation
with accrued interest thereon deposited before the Commissioner for
Employees' Compensation & the Judge, First Labour Court, Nashik
on furnishing the usual undertaking.
11] The said Civil Application and Interim Application are
accordingly also disposed of.
[NITIN W. SAMBRE, J.]
