Bombay High Court
Tajkhan Mumtaz Khan Pathan vs The Oriental Insurance Co.Ltd on 6 January, 2022
Bench: N. J. Jamadar
FA-618-2007-J.DOC
3
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Digitally
FIRST APPEAL NO. 618 OF 2007
signed by
SHRADDHA
SHRADDHA KAMLESH
KAMLESH TALEKAR The Oriental Insurance Company Ltd.
TALEKAR Date:
2022.01.06 Thane Branch, Gokhale Road, ... Appellant
19:11:41
+0530 Above SBI, Naupada, Thane (Orig. Insurer)
Versus
1. Tajkhan Mumtaz Khan Pathan
Age about 33 years,
Occ. : Rickshaw Driver,
Residing at Desai Chawl,
Jai Shastri Nagar, Shankar ...Respondent No.1
Tekadi, Mulund Colony, (Orig. Applicant)
Mulund (West), Mumbai 400 082.
2. Smt. Sukesani V. Thorat,
Age about 50 years,
Occ.: Business, residing at 117/1,
Veer Sambhaji Nagar, ..Respondent No.2
L.B.S. Marg, Mulund (W), (Orig. Opp. Party)
Mumbai 400 080
ALONG WITH
INTERIM APPLICATION NO. 2358 OF 2021
IN
FIRST APPEAL NO. 618 OF 2007
1. Tajkhan Mumtaz Khan Pathan
Age about 33 years,
Occ. : Rickshaw Driver,
Residing at Desai Chawl,
Jai Shastri Nagar, Shankar ...Applicant
Tekadi, Mulund Colony, (Orig. Respondent
Mulund (West), Mumbai 400 082. No.1)
IN THE MATTER BETWEEN :
The Oriental Insurance Company Ltd.
Thane Branch, Gokhale Road, ...Appellant
Above SBI, Naupada, Thane (Orig. Insurer)
Shraddha Talekar, PS. 1/13
FA-618-2007-J.DOC
Versus
1. Tajkhan Mumtaz Khan Pathan
Age about 33 years,
Occ. : Rickshaw Driver,
Residing at Desai Chawl,
Jai Shastri Nagar, Shankar
Tekadi, Mulund Colony,
Mulund (West), Mumbai 400 082.
2. Smt. Sukesani V. Thorat,
Age about 50 years,
Occ.: Business, residing at 117/1,
Veer Sambhaji Nagar, ..Respondents
L.B.S. Marg, Mulund (W), (Orig.Respondents)
Mumbai 400 080
***
Mr.R.D. Suryawanshi, Advocate for appellant.
Mr.Amol Gatane i/b Ms. Swati U. Mehta for respondents and
for applicants in IA/2358/2021
***
CORAM : N.J. JAMADAR, J.
Reserved for Order on : 8th DECEMBER 2021.
Pronounced on : 6th JANUARY 2022.
(THOUGH VIDEO CONFERENCE)
JUDGMENT :
1. This appeal under section 30 of the Employees
Compensation Act, 1923 ('the Act, 1923') is directed against a
judgment and award dated 23rd September 2005 passed by
learned Commissioner for Workmen's Compensation and Judge,
Fifth Labour Court, Mumbai, awarding compensation of
Rs.2,58,336/- alongwith interest @ 12% per annum from the
date of accident.
Shraddha Talekar, PS. 2/13
FA-618-2007-J.DOC
2. The background facts leading to this appeal can be
summarized as under :-
(a) The respondent No.1/original applicant was
working as a 'driver' on the auto-rickshaw bearing
registration No.MH-03 J 5138 belonging to respondent
No.2-original opposite party No.1 and insured with the
appellant/insurer. (The parties hereinafter are referred
to in the capacity, they were arrayed before the learned
Commissioner).
(b) On 23rd October 1999, the applicant met with an
accident at Mulund (West) and sustained multiple
injuries including fracture medial malleolus, Left Tibia
C with punctured wound. The applicant suffered
permanent partial disability, which was assessed as
33%. However, on account of the injuries sustained in
the accident, the applicant claimed to have suffered
100% functional disability as he was incapacitated to
work as a driver.
(c) The opponent No.1/employer refused to accept
the summons. Though, the opponent No.2/insurer
was duly served with the summons, opponent No.2-
insurer did not appear and hence the application
proceeded ex-parte against both the opponents.
Shraddha Talekar, PS. 3/13
FA-618-2007-J.DOC
(d) The learned Commissioner recorded evidence of
the applicant Taj Khan Pathan (AW-1) and Dr.Amit R.
Ajkaonkar (AW-2), Orthopedic Surgeon. After appraisal
of the evidence and the material on record, the learned
Commissioner was persuaded to record a fnding that
the applicant suffered permanent disability on account
of the injury sustained by the applicant during the
course of the employment and thus proceed to
determine the compensation in accordance with the
provisions contained in section 4 of the Act, 1923.
Thus, by judgment and award dated 23rd September
2005, the opponents were jointly and severally directed
to pay Rs.2,58,336/- alongwith interest @ 12% per
annum from the date of the accident till realization. In
addition, the opponent No.1 employer was saddled with
penalty.
3. Being aggrieved by and dissatisfed with the impugned
judgment and award, the opponent No.2/insurer is in appeal.
4. By an order dated 28th February 2007, this Court admitted
the appeal by formulating the question as to whether the
learned Commissioner could have assessed the loss of earning
capacity to the extent of 100% ?
Shraddha Talekar, PS. 4/13
FA-618-2007-J.DOC
5. I have heard Mr. Suryawanshi, the learned counsel for the
appellant and Mr.Gatane, the learned counsel for the
respondent No.1-applicant, at some length. With the assistance
of the learned counsels for the parties, I have perused the
material on record including the depositions of witnesses before
the learned Commissioner.
6. The learned counsel for the appellant assailed the
impugned judgment and award on the count that the fnding of
the learned Commissioner that the applicant suffered 100%
functional disability is wholly unsustainable. In the face of the
material on record to the effect that the partial permanent
disability was assessed at 33% only, the learned Commissioner,
according to Mr.Suryawanshi, committed a manifest error in
recording a fnding that there was 100% loss of functional
disability.
7. Inviting the attention of the Court to the evidence of Dr.
Amit Ajkaonkar (AW-2), Mr. Suryawanshi made an earnest
endeavour to draw home the point that even if the testimony of
Dr. Amit Ajkaonkar is taken at par, the learned Commissioner
could not have recorded a fnding that there was 100%
functional disability. A further endeavour was made by Mr.
Suryawanshi to canvass a submission that in any event the
Shraddha Talekar, PS. 5/13
FA-618-2007-J.DOC
opponent No.2-insurer could not have been saddled with the
liability to pay interest on the amount of compensation so
awarded, as the insurer was not enjoined to discharge the
liability towards interest.
8. Per contra, Mr. Gatane, the learned counsel for respondent
No.1 would urge that the appellant having not contested the
application before the learned Commissioner, cannot be
permitted to now agitate the questions of facts. It was urged
with a degree of vehemence that this Court in exercise of limited
appellate jurisdiction cannot entertain the aforesaid grounds of
challenge since no substantial question of law arises for
consideration. In the case at hand, according to Mr. Gatane, the
question as to whether the applicant suffered 100% functional
disability is essentially a question of fact. Therefore, the appeal
deserves to be dismissed at the threshold. On merits, Mr.Gatane
would urge that there is overwhelming evidence to demonstrate
that the applicant suffered 100% loss of income. The applicant
could not perform the avocation which he was persuing before
the accident. Thus, no fault can be found with the impugned
judgment and award, submitted Mr.Gatane.
9. On the aspect of the limited nature of the appellate
jurisdiction, circumscribed by the provisions contained in
Shraddha Talekar, PS. 6/13
FA-618-2007-J.DOC
section 30 of the Act, 1923, Mr.Gatane placed reliance on the
judgment of the Supreme Court in the case of North East
Karnataka Road Transport Corporation Vs. Sujatha 1.
Paragraph Nos. 9 to 12 of the said judgment read as under :
9. At the outset, we may take note of the
fact, being a settled principle, that the
question as to whether the employee met
with an accident, whether the accident occurred
during the course of employment, whether it
arose out of an employment, how and in what
manner the accident occurred, who was
negligent in causing the accident, whether
there existed any relationship of employee and
employer, what was the age and monthly
salary of the employee, how many are the
dependents of the deceased employee, the extent of
disability caused to the employee due to
injuries suffered in an accident, whether there
was any insurance coverage obtained by the
employer to cover the incident etc. are some
of the material issues which arise for the
just decision of the Commissioner in a claim
petition when an employee suffers any bodily injury
or dies during the course of his employment and
he/his LRs sue/s his employer to claim
compensation under the Act.
10. The afore-mentioned questions are essentially
the questions of fact and, therefore, they
are required to be proved with the aid of evidence.
Once they are proved either way, the fndings
recorded thereon are regarded as the fndings of
fact.
11. The appeal provided under Section 30 of the
Act to the High Court against the order of
the Commissioner lie only against the specifc
orders set out in clause (a) to (e) of Section 30 of
the Act with a further rider contained in frst
proviso to the Section that the appeal must involve
substantial question of law.
12. In other words, the appeal provided
under Section 30 of the Act to the High Court
against the order of the Commissioner is not like a
Regular First Appeal akin to Section 96 of
the Code of Civil Procedure, 1908 which can be
1 (2019) 11 SCC 514
Shraddha Talekar, PS. 7/13
FA-618-2007-J.DOC
heard both on facts and law. The appellate
jurisdiction of the High Court to decide the
appeal is confned only to examine the
substantial questions of law arising in the case.
10. From the perusal of the provisions contained in section
30 of the Act, 1923, it becomes evident that the appeal provided
under the said section is not a comprehensive appeal in the
sense that all questions of facts and law can be agitated therein.
The proviso to sub-section (1) of section 30 contains an interdict
that an appeal cannot be entertained unless a substantial
question of law is involved in the appeal.
11. In the case at hand, since the appeal was admitted on the
question as to whether the learned Commissioner could have
assessed the loss of earning capacity to the extent of 100%, I
deem it appropriate to proceed on the premise that the said
question, as framed, in the facts of the case, assumes the
character of a substantial question of law.
12. To begin with, it is imperative to note that, despite no
contest on behalf of the opponents, the learned Commissioner
proceeded to record the evidence of not only the applicant but
Dr.Amt Ajkaonkar, the Orthopedic Surgeon, who had examined
the applicant and certifed the nature of injuries and assessed
the disability.
Shraddha Talekar, PS. 8/13
FA-618-2007-J.DOC
13. Dr.Ajkaonkar (AW-1), informed the learned Commissioner
that upon examination of the applicant, he found that the
applicant was suffering from eight physical disabilities. He
claimed to have issued disability certifcate recording those
disabilities. The certifcate proved in evidence of Dr.Amit
Ajkaonkar (AW-1) enumerates the disabilities as under :
(1) Severe pain, swelling and tenderness over (L)
leg, ankle and foot.
(2) Total inability to bear full weight over (L) leg and
to walk unsupported.
(3) Diffculty and pain on walking, climbing stairs,
squatting and sitting cross legged.
(4) Restriction of movements of (L) ankle and (L)
subtler joints.
(5) Severe wasting and weakness of (L) leg and foot.
(6) Deformity C melanin of (L) ankle.
(7) He will require further treatment and removal of
implants.
(8) Reduced power in (L) LL.
(9) Can not do driving due to above disabilities.
14. Dr.Amit Ajkaonkar (AW-1) further affrmed that if the
patient was driver by profession, in future he would not be able
to drive the vehicle. To add to this, the applicant also affrmed
that a steel implant was inserted in his left leg. He could not
drive the vehicle because of the said injury. He was unable to
bear full weight on the left leg and could not walk without
support. He could not run as well as squat and sit cross legged.
The movement of his left leg has been restricted at subtler joints
and there is a severe wasting and weakness of left leg and foot.
Shraddha Talekar, PS. 9/13
FA-618-2007-J.DOC
The applicant further affrmed that he cannot do any type of
work and therefore there is 100% loss of earning capacity.
15. As indicated above, the aforesaid evidence has gone
unchallenged. Even otherwise, it seems that the evidence of
Dr.Amit Ajkaonkar (AW-1) gives a vivid account of the nature of
the disability suffered by the applicant. The fact that Dr.Amit
Ajkaonkar had assessed partial permanent disability at 33% is
not decisive. What is signifcant is the effect and impact of
permanent disability on the earning capacity of the claimant.
16. A proftable reference, in this context, can be made to the
judgment of the Supreme Court in the case of Raj Kumar Vs.
Ajay Kumar & Anr. 2, wherein the method of determination of
loss of earning capacity in case of personal injury, was
delineated. Relevant parts of paragraphs 13 and 14 of the said
judgment are instructive and, thus, extracted below:
"13. Ascertainment of the effect of the permanent
disability on the actual earning capacity involves
three steps. The Tribunal has to frst ascertain what
activities the claimant could carry on in spite of the
permanent disability and what he could not do as a
result of the permanent ability (this is also relevant
for awarding compensation under the head of loss of
amenities of life). The second step is to ascertain his
avocation, profession and nature of work before the
accident, as also his age. The third step is to fnd out
whether (i) the claimant is totally disabled from
earning any kind of livelihood, or (ii) whether in spite
2 (2011) 1 SCC 343
Shraddha Talekar, PS. 10/13
FA-618-2007-J.DOC
of the permanent disability, the claimant could still
effectively carry on the activities and functions,
which he was earlier carrying on, or (iii) whether he
was prevented or restricted from discharging his
previous activities and functions, but could carry on
some other or lesser scale of activities and functions
so that he continues to earn or can continue to earn
his livelihood.
14 For example, if the left hand of a claimant is
amputated, the permanent physical or functional
disablement may be assessed around 60%. If the
claimant was a driver or a carpenter, the actual loss
of earning capacity may virtually be hundred percent,
if he is neither able to drive or do carpentry.............."
17. Applying the aforesaid principles to the facts of the case,
in my considered view, the learned Commissioner was wholly
justifed in recording a fnding that the loss of earning capacity
was 100% inasmuch as the applicant had sustained such a
disability that it incapacitated the applicant to drive the vehicle,
as he used to do prior to the accident. The applicant was
rendered incapable to perform the avocation which he was
pursuing before the accident. In such circumstances, the fact
that the physical disability was assessed at a lower threshold is
of no signifcance for the reason that the impact of the disability
was total deprivation of the capacity to earn as a driver. Thus, I
am not persuaded to accede to the submission on behalf of the
appellant that the learned Commissioner committed an error in
assessing the loss of income at 100%.
18. The second challenge sought to be raised on behalf of the
Shraddha Talekar, PS. 11/13
FA-618-2007-J.DOC
appellant regarding the liability to pay interest on the amount of
compensation awarded by the learned Commissioner, from the
date of the accident is required to be stated to be repelled. A
conjoint reading of the provisions contained in section 3 and
section 4A of the Act, 1923 makes it abundantly clear that the
insurance company is enjoined to satisfy the claim for
compensation alongwith interest as imposed on the insured-
employer by the Commissioner for Employees' Compensation.
19. It must be noted that Mr.Suryawanshi, the learned
counsel for the appellant, did not pursue this challenge
vigorously and fairly submitted that the judgment of the
Supreme Court in the case of Ved Prakash Garg Vs. Premi Devi
& Ors. 3
settles the issue against the insurer. However, Mr.
Suryawanshi sought to place reliance on the judgment of the
Supreme Court in the case of P.J. Narayan Vs. Union of India &
Ors. 4
to bolster up the submission that in the absence of
contract, the insurance company cannot be saddled with the
liability to pay interest.
20. I am afraid, the judgment in the case of P.J. Narayan
(Supra) is of any assistance to the appellant. In the said case,
3 AIR 1997 SCC 3854
4 2004 ACJ 452
Shraddha Talekar, PS. 12/13
FA-618-2007-J.DOC
the writ petitioner sought a direction against the insurance
company to delete the clause in the Insurance Policy which
provided that in case of compensation under the Workmen's
Compensation Act, 1923, the Insurance Company will not be
liable to pay interest. In the backdrop of such a prayer, the
Supreme Court observed that there was no substance in the
petition as insurance, being a matter of contract between the
Insurance Company and the insured, it was open to the
Insurance Company to refuse to insure and provide by contract
that they will not take on liability for interest.
21. The conspectus of the aforesaid consideration is that the
appeal is devoid of substance.
22. Hence, the following order :
ORDER
(i) The appeal stands dismissed with costs.
(ii) In view of dismissal of the appeal, Interim
Application does not survive and accordingly stands
disposed of.
[N. J. JAMADAR, J.]
Shraddha Talekar, PS. 13/13
