Bombay High Court
Sk. Mois Sk. Saleem vs Sushil Subhashchandra Dhoot And ... on 22 March, 2021
Bench: Anil S. Kilor
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 4778 OF 2017
1. Sushil Subhashchandra Dhoot,
Aged : 45 years, Occ: Business,
Shri Tulsi Buildcon,
Plot No. E-43, MIDC, Chikalthana,
Aurangabad.
2. Vinay Premchand Surana,
Aged : 42 years, Occ.:Business,
Shri Tulshi Buildcon,
Plot No. E-43, MIDC, Chikalthana,
Aurangabad. ...APPELLANTS
VERSUS
Sk. Mois Sk. Saleem,
Aged: 20 years, Occu: Nil,
R/o: House No. SRT-29,
Labour Colony, Aurangabad. ...RESPONDENT
....
Mr. Yatin I Thole, Advocate for appellants
Mr. Gaurav L. Deshpande, Advocate for respondent
.....
WITH
CIVIL APPLICATION NO. 432 OF 2019
CIVIL APPLICATION NO. 2164 OF 2021
IN
FIRST APPEAL NO. 4778 OF 2017
Sk. Mois Sk. Saleem,
Aged: 20 years, Occu: Nil,
R/o: House No.-29,
Labour Colony, Aurangabad. ...APPELLANT
VERSUS
1. Sushil Subhashchandra Dhoot,
Aged : Major, Occ: Business,
(Lower of Tulsi Beedcon Company)
R/o : Shri Tulsi Buildcon,
E-43, MIDC, Chikalthana, Aurangabad.
::: Uploaded on - 03/04/2021 ::: Downloaded on - 03/09/2021 02:17:46 :::
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2. Vinay Premchand Surana,
Aged : Major, Occ: Business,
(Lower of Tulsi Beedcon Company)
R/o : Shri Tulsi Buildcon,
E-43, MIDC, Chikalthana, Aurangabad. ...RESPONDENTS
....
Mr. Gaurav L. Deshpande, Advocate for applicant
Mr. Yatin I Thole, Advocate for respondents
.....
WITH
FIRST APPEAL NO. 3620 OF 2019
Sk. Mois Sk. Saleem,
Aged: 20 years, Occu: Nil,
R/o: House No.-29,
Labour Colony, Aurangabad. ...APPELLANT
VERSUS
1. Sushil Subhashchandra Dhoot,
Aged : Major, Occ: Business,
(Lower of Tulsi Beedcon Company)
R/o : Shri Tulsi Buildcon,
E-43, MIDC, Chikalthana, Aurangabad.
2. Vinay Premchand Surana,
Aged : Major, Occ: Business,
(Lower of Tulsi Beedcon Company)
R/o : Shri Tulsi Buildcon,
E-43, MIDC, Chikalthana, Aurangabad. ...RESPONDENTS
....
Mr. Gaurav L. Deshpande, Advocate for appellant
Mr. Yatin I Thole, Advocate for respondents
.....
CORAM : ANIL S. KILOR, J.
DATE : 22th MARCH, 2021
ORAL ORDER :-
1. In these two appeals on behalf of employer and employee
the challenge is raised to the Judgment and order passed by the
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Commissioner for Workmen's Compensation dated 26-09-2017,
partly allowing the claim of the appellant in First Appeal No. 3620 of
2010 and respondent in First Appeal No. 4778 of 2017 and thereby
holding him entitled for compensation amount of Rs.3,90,348/-
along with 12% interest.
2. I have heard learned counsel for respective parties.
3. Brief facts of the present case are as under ( the parties are
referred as per their status before the Commissioner, Workmen's
Compensation).
4. The claimant - Sk. Mois Sk. Salim preferred an application
under Sections 3, 4 and 22 of the Employees Compensation Act,
1923 before the Commissioner Workmen's Compensation for grant
of compensation to the tune of Rs.10,75,200/-.
5. It is the case of claimant that, he was working as "Plant
Labour" and on 27-06-2014, when he was cleaning mixer machine
(Chipping), the respondent started mixer machine, due to which, he
sustained serious injuries to liver, kidney and Esophagus and
several parts of the body. He was indoor patient in Dhoot Hospital
and was operated several times by the concerned Doctor. It is the
case of the claimant that he suffered permanent disability because
damage of his liver, kidney and esophagus and as such he lost
100% earning capacity.
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6. Respondents No.1 and 2, who are appellants in First Appeal
No. 4778 of 2017, filed their written statement and opposed claim
of the claimant on the ground that there is no statutory obligation
on them to pay compensation. They submitted that Doctor has
certified that the claimant is fit to resume duty, thus, the claimant is
not entitled for any compensation.
7. The Commissioner after scrutinizing oral as well as
documentary evidence available on record held that the
respondents No. 1 and 2 are jointly and severally liable to pay
compensation to the tune of Rs.3,90,438/- along with interest to
the claimant.
8. The said Judgment and order dated 26-09-2017 is under
challenge in First Appeal No.4778 of 2017 at the behest of
respondents No. 1 and 2 on the ground that the claimant is not
entitled for any compensation whereas said Judgment and order is
under challenge in First Appeal No. 3620 of 2019 at the behest of
claimant on the ground that less amount was granted by the
learned Commissioner than he is entitled for.
9. In first appeal No.4778 of 2017 Mr. Thole, learned counsel
appearing for appellants submit that the certificate issued by
Dr. Parmeshwar Shivlal Jaiswal, certifying 40% permanent disability
of the claimant was issued on 14-01-2017 whereas the incident had
taken place on 27-06-2014, thus, he submits that the learned
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Commissioner has wrongly relied upon said certificate which was
issued after about 2½ years of the incident, while determining the
amount of compensation.
10. He further submits that no where Dr. Jaiswal in his deposition
has stated about loss of earning capacity of the claimant. It is
submitted that on the other hand, the witness has categorically
deposed that the claimant is fit for light work and not fit to do
heavy work. It is submitted that from the cross-examination Dr.
Jaiswal, it is clear the claimant has not suffered 100% loss of
earning capacity, and therefore, amount awarded by the
Commissioner is based on no evidence.
11. On the other hand, learned counsel for claimant points out
that medical document of 'Dhoot Hospital' is sufficient to show the
nature of injuries and the disability suffered by the claimant. It is
submitted that even in absence of certificate of disability any
prudent man can assess the disability caused to person whose one
kidney is removed, liver and Esophagus are totally damaged. It is
further submits that respondents No. 1 and 2 are not disputing the
medical papers of 'Dhoot Hospital', and therefore, the compensation
awarded by the Commissioner is insufficient and not just and fair.
By arguing this, he prays for enhancement of compensation.
12. During the course of arguments, learned counsel for
respondents No.1 and 2 draws attention to the statement made
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before the Commissioner showing willingness to allow the claimant
to join the duties and to assign him light work as suggested by
Dr. Jaiswal in his cross-examination. In view of that, time was given
to the claimant to make the statement whether he is ready to join
the duties and to do a light work. Thereupon, the claimant has
shown willingness to do any light work looking to his health
condition, however, learned counsel for respondents No.1 and 2
after taking instructions informed to this Court that due to recession
because of pandemic, though earlier, a statement was made that
the claimant can be assigned work of light nature, it is not possible
now to take him in employment and assign any work.
13. In that view of the matter, this Court proceeded to decide
the matter on merit.
14. In the present matter, admittedly, the claimant was
hospitalized and he was indoor patient in 'Dhoot Hospital',
immediately after he sustained injuries on 27-06-2014, during the
course of employment. There is no dispute that several times he
was operated by concerned Doctor and his medical papers show
that his one kidney was removed. Learned Commissioner has
observed in the impugned Judgment and order the findings
recorded by the Doctor, which are relevant to assess physical
disability of the claimant.
15. The physical disability, according to Dr. Jaiswal is to the extent
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of 40% which was assessed on the basis of medical papers relating
to claimant and prepared by 'Dhoot Hospital', during the treatment
of the claimant. Therefore, though Dr. Jaiswal issued disability
certificate after 2½ years of the incidents, it will not take away its
efficacy for the purpose of taking into consideration permanent
disability of the claimant.
16. It has come on record that the claimant is not in position to
do any heavy work, to which there is no challenge on the part of
respondent Nos.1 and 2. The respondents No. 1 and 2 are not
disputing medical papers of 'Dhoot Hospital', which are sufficient for
any prudent man to understand seriousness of the damage caused
to the Kidney, liver and Esophagus and other parts of the claimant.
17. Thus, considering all these aspects, learned Commissioner
has rightly come to the conclusion that there is no 100% loss of
earning capacity and accordingly amount of compensation was
determined.
18. The witness of the claimant, Dr. Jaiswal in his cross-
examination has categorically deposed that the claimant is able to
do the light work but not heavy work. Thus, this oral evidence is
sufficient to hold that the claimant has not suffered 100% disability
to earn his livelihood as such looking to his loss of earning capacity,
due to impact of injuries caused to him, the compensation granted
by learned Commissioner is just and fair.
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19. In that view of the matter, I do not find any fault with
findings recorded by learned Commissioner. None of the appellants
could point out any perversity in the impugned Judgment and order.
20. Thus, having considered oral as well as documentary
evidence available on record and having considered the findings
recorded by learned Commissioner, I am of the view that no
interference is required in present matters, as both these appeals
are devoid of substance. Accordingly, I pass the following order.
:: O R D E R ::
(i) Both the appeals are dismissed.
(ii) The claimant is permitted to withdraw the
amount of compensation deposited by respondents
No. 1 and 2 before the Labour Court, Aurangabad
along with interest accrued thereon, if any.
(iii) In view of dismissal of both the First
Appeals, pending Civil Applications do not survive
and stand disposed of accordingly.
(iv) No order as to costs.
( ANIL S. KILOR )
JUDGE
mtk
