Bombay High Court
M/S New India Assurance Co. Ltd vs Raju Rajabhau Bilore And Ors on 19 October, 2022
Bench: S. G. Dige
1 F.A. No. 4099-2008.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 4099 OF 2008
WITH
CIVIL APPLICATION NO. 5427 OF 2009,
WITH
CIVIL APPLICATION NO. 12094 OF 2008
M/s New India Assurance Co. Ltd,
having it's Regd and Head office at
New India Assurance Building, 87 M.G.
Road, Fort, Mumbai- 4000 01 Branch
at Jalna and Divisional Office at Ajay
Engg. Compound Dr. Rajendra Prasad
Road, Aurangabad - 431 005 through it's
Senior Divisional Manager
Vishwas S/o Bansi Gaikwad 54 Years .. Appellant
(Orig. Ist Opponent)
VERSUS
1. Raju S/o Rajabhau Bilore,
Age : 27 Years, Occ. Nil,
R/o Near Pangari Tq. Badnapur
Dist. Jalna through its Next Friend
Wife Ramabai Raju Bilore
R/o. As above
2. M/s Parwati Steel Re Rolling Mills
Near Samrat Celender MIDC Area
Alurangabad Jalna Road through
Mitesh Vindroy
3. Shri. Mitesh Vindroy Seth
Age : Major, Occ. Business
R/o Jalna Parwati Steel Re
Rolling Mills Jalna. .. Respondents
.....
Shri. V. N. Upadhye, Advocate for the appellant
Shri. R.R. Imale, Advocate for respondent No.1
.....
WITH
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2 F.A. No. 4099-2008.odt
CIVIL APPLICATION NO. 9099 OF 2022
IN
FIRST APPEAL NO. 4099 OF 2008
Raju s/o Rajabhau @ Rambhau Bilore,
Age : 41 Years, Occ. Nil,
R/o. Najik Pangari, Tq. Badnapur,
District Jalna. ...Applicant
VERSUS
1. New India Assurance Company Limited,
Through it's Divisional Manager,
Aurngabad. Ori. Appellant
2. M/s Parwati Steel Re rolling Mills,
Near Samrat Cylender, MIDC Area,
Aurangabad Jalna Road, Jalna
Through Mr. Mitesh Vindoroy
3. Mr. Mitesh Vindroy Seth,
Age : Major, Occ. Business,
R/o. M/s Parwati Steel Re rolling Mills,
Near Samrat Cylender, MIDC Area
Aurangabad, Jalna Road, Jalna .. Respondents
...
Shri. R.R. Imale, Advocate for the respondent No.1
Shri. V. N. Upadhye, Advocate for Appellant
....
CORAM : S. G. DIGE, J.
Reserved on 30.08.2022
Pronounced on : 19.10.2022
JUDGMENT :-
Challenge in this appeal is to the Judgment and
order rendered by the learned Commission for Workmen
Compensation and Labour Judge Jalna (for short the
Commissioner) whereby the Commissioner has awarded the
compensation of Rs. 300288/- against the appellant and
respondent No.2.
Brief facts of the case are as under :-
2. Respondent No.1 (for short claimant) was working in
the factory of respondent No.2. At the relevant time when he
was working in factory suddenly a hot steel rod came on to his
head and thereby he sufered serious injury. He was
immediately shifted to Dr. Agrawal's Hospital and thereafter
Seth Nandlal Dhoot Hospital,Aurangabad. He was there as
indoor patient for 17 to 18 days in unconscious condition. He
was operated there. He has trachectomy tube in situ and has
left hemiplegia. At the time of accident, he was 26 years old
and drawing Rs. 5,000/- per month as wages. In the said
accident he sufered 30% total permanent disability.
3. The claimant fled a claim petition before The
Commissioner Compensation and Labour Judge, it is allowed.
Against said Judgment and order this appeal.
4. It is contention of learned counsel for appellant that
when a qualifed medical practitioner has certifed that there is
30% of permanent disability caused to the claimant in the said
accident the Commissioner could not have been taken a
diferent view holding that there was 100% functional disability
caused to the claimant which is improper and illegal. Learned
counsel further submits that the Commissioner has erred in not
appreciating that the compensation or percentage of disability
has to be assessed with the reference to the work or job, the
workman concerned was doing at the time of accident and/or
his capability to works on any other occupation. Hence
requested to allow the appeal.
5. It is contention of learned counsel for respondent
No.1 that the injury was caused to the head of the appellant.
Due to the said injury left side of body of the appellant has got
paralised, he has permanently disabled, a hole is fxed on
respiratory track of the claimant, due to said hole he cannot
speak properly. In the said accident, injury is caused to the
brain of the claimant hence he is unable to walk properly and
these facts are proved in the evidence of Doctor . Claimant was
worker in the factory of respondent No.2 since accident he is
unable to do any job. He has sufered 100% permanent
disability. The order passed by the Commissioner is legal and
valid. He relied on S. Suresh Vs. Oriental Insurance
Company Ltd and Another 2009 DJLS (Soft) 1246.
6. I have heard both the learned counsel. Perused
judgment and order passed by the Commissioner. The
correctness of the impugned judgment in question is mainly on
the ground that when doctor has given 30% permanent
disability to the claimant, the Commissioner has considered
100% permanent functional disability.
7. To prove the disability the claimant has examined Dr.
Dharmchand Gadiya at Exh. U-39. This witness has stated that
due to accident left side of body of the claimant has become
paralyzed because of which he has got permanent disability.
The claimant is unable to do work as labour. Nothing elicited in
the cross- examination of this witness.
8. Doctor Sameer Deshpande Exh. U-45 has stated that
he works as ENT surgeon in Dhoot Hospital when the claimant
was admitted in the hospital he was in unconscious stage. A
surgery was performed on respiratory track of the claimant for
better respiration. A hole was fxed on respiratory track of
claimant it was necessary to save his life. This witness further
stated that, due to said operation claimant was not in position
to speak clearly. Due to head injury the left side part of body of
the claimant has been paralyzed and he cannot perform work
which he was earlier doing. Further operation is needed to
close the hole fxed on respiratory track. Dr. Madhavan
Gopalkrishnan Menon is examined at Exh. U-49 he is
Neurologist. He has stated that, due to injury sustained on
head of claimant, he is not in position to walk properly. Left part
of the body is paralyzed.
9. From the evidence of these medical experts it
reveals that due to head injury caused to the claimant, while
working in the factory of respondent No.3, claimant has sufered
paralysis to left part of his body. A hole is fxed on his
respiratory track due to which, he is unable to speak properly.
He is not in position to walk properly. It proves that he has got
100% functional disability due to the said accident. Though,
certifcate of disability of 30% is issued, but from the evidence
of medical experts it proves that there is 100% functional
disability caused to the claimant. The Tribunal has passed a
well reasoned order. From the above evidence, I come to the
conclusion that view adopted by the Tribunal is correct.
10. The Hon'ble Apex Court in the case of S. Suresh
Versus Oriental Insurance Co. Ltd and Another 2009
DGLS( Soft.) 1246 has held that :-
''when injury caused to the workmen prevent him
from performing on account of amputation of his
right leg below knee. Claimant is unft for the work
of a driver, which he was performing at the time of
accident resulting in the said disablement.
Therefore, he has lost 100% of his earning
capacity.''
10. The ratio laid down in this case is squarely
applicable to the present case as in the present case, claimant
was working as a worker in the factory. Due to said accident, he
has sufered paralysis to left part of his body, a hole is fxed on
his respiratory track, due to which he cannot speak properly,
due to Injury to the brain he cannot walk properly. He is not in a
position to do the work as earlier he was doing. Hence there is
100% functional disability. The appeal is devoid of the merit.
11. In view of the above, I pass the following order :-
ORDER
(i) Appeal is dismissed.
(ii) No order as to costs.
(iii) Respondent No.1 is permitted to withdraw the
amount deposited by the appellant.
(iv) The pending Civil Applications if any, the same
stand disposed of.
( S.G. DIGE,)
JUDGE
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