Gujarat High Court
New India Assurance Co. Ltd vs Akhilesh Betha on 23 July, 2025
NEUTRAL CITATION
C/FA/3451/2006 JUDGMENT DATED: 23/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3451 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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Approved for Reporting Yes No
No
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NEW INDIA ASSURANCE CO. LTD.
Versus
AKHILESH BETHA & ANR.
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Appearance:
MR PALAK H THAKKAR(3455) for the Appellant(s) No. 1
MR MUKESH H RATHOD(2432) for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 23/07/2025
ORAL JUDGMENT
1. Present appeal is filed by the appellant - Insurance
Company under Section 30 of the Workmen's Compensation Act,
1923 (hereinafter be referred to as "the Act") against the
judgment and award dated 13.07.2006 passed by the learned
Workmen's Compensation Commissioner, Gandhidham, District :
Kuchchh (hereinafter be referred to as "the Commissioner") in
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W. C. Application (Non-Fatal) No.23 of 2005 whereby the learned
Commissioner has allowed the application and awarded
compensation at Rs.2,93,569/- along with the medical expenses
at Rs.33,200/- as well as interest and costs.
2. Being aggrieved and dissatisfied with the judgment and
award, the appellant - Insurance Company has preferred this
appeal on the ground that the learned Commissioner has
committed serious error of law and thus, the substantial
questions of law were proposed by the appellant as under:-
(1) Whether the learned Workmen's Compensation
Commissioner has committed an error of law in awarding
compensation of Rs.2,93,569/- along with interest when
the medical certificate does not state that the injury
suffered by the workman falls in Part II of Schedule I as
provided under section 4(1)(c)(i) of the Act?
(2) Whether the learned Workmen's Compensation
Commissioner has committed an error of law in awarding
compensation of Rs.2,93,569/- along with interest when
the medical certificate issued by the doctor does not state
that there was amputation and thereby is not falling under
item No. 19, 20, 21 and 22 of Part II of the Schedule I as
provided under Section 4(1)(c)(i) of the Act?
(3) Whether the learned Workmen's Compensation
Commissioner has committed an error of law in awarding
compensation along with interest without examining a
qualified medical practitioner when the injury is a non-
scheduled injury?
(4) Whether the learned Workmen's Compensation
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Commissioner has committed an error of law in awarding
compensation along with interest without adhering to the
procedure and making a departure from the statutorily
fixed procedure of examining the qualified medical
practitioner for assessing the loss of earning capacity as
provided under the law?
(5) Whether the learned Workmen's Compensation
Commissioner has committed an error of law in directing
the appellant to pay compensation along with interest
when there is no privity of contract between the appellant
and the deceased?
(6) Whether the learned Workmen's Compensation
Commissioner has committed an error of law in directing
the appellant to pay interest contrary to the judgment of
the Hon'ble Supreme Court of India in the case of New
India Assurance Company Limited Vs. Harshadbhai
Amrutbhai Modhiya, reported in 2006 AIR SCW 2352
(AIR 2006 SC 1926 : 2006 (5) SCC 192)?
3. On 15.09.2006, this Court admitted the appeal and granted
interim relief in civil application.
4. Heard Mr.Palak Thakkar, learned counsel appearing for the
appellant - Insurance Company and Mr.Mukesh Rathod, learned
counsel appearing for respondent No.1. It is relevant to note
herein that though served, the original principal employer -
respondent No.2 has chosen not to remain present before the
Court.
5. Mr.Thakkar, learned counsel for the appellant has
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submitted that the learned Commissioner has, without
considering the fact that the respondent has not sustained the
injury which is fallen under the Schedule and not permanent in
nature, passed the impugned judgment and award. He has
submitted that though the fracture was on knee and on hand,
the learned Commissioner has considered 100% disability and on
the basis of the same, the award was passed by the learned
Commissioner. He has submitted that the learned Commissioner
has, without considering the fact that the doctor has given the
certificate and without examining the doctor, come to such
conclusion.
5.1 Mr.Thakkar, learned counsel has submitted that the
learned Commissioner has erred in granting compensation
though the injury does not fall in Part II of Schedule I as defined
under Section 4(1)(c)(i) of the Act. He has submitted that when
the doctor has assessed the loss of earning capacity of the
workman to the extent of 20%, the learned Commissioner ought
not to have come to the conclusion in respect of loss of earning
capacity to the extent of 100% without assessment of the loss of
earning capacity by the qualified medical practitioner.
5.2 Mr.Thakkar, learned counsel has submitted that there is no
provision under the Act to grant medical expenses and,
therefore, the award so far as grant of medical expenses of
Rs.3320 is not sustainable in the eyes of law and the same
deserves to be quashed.
5.3 In support of his submissions, Mr.Thakkar, learned counsel
has relied upon the decision of the Hon'ble Supreme Court in the
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case of New India Assurance Company Limited Vs.
Harshadbhai Amrutbhai Modhiya reported in 2006 (5) SCC
192. He has submitted that the impugned judgment and award
passed by the learned Commissioner deserves to be quashed
and set aside and the present appeals deserve to be allowed.
6. Per contra, Mr.Rathod, learned counsel for the respondent
No.1 has submitted that since the respondent - claimant has
sustained the fracture on elbow and knee, the learned
Commissioner has, after considering the documents, allowed the
application and awarded the compensation and there is no
illegality or perversity in the judgment and award. He has
submitted that no interference is required to be called for and
the appeal being meritless deserves to be dismissed.
7. I have considered the submissions canvassed by the
learned counsel appearing for the respective parties and the
material available on record and perused the impugned
judgment and award passed by the learned Commissioner.
Considering the settled principles of law, I am of the opinion that
the finding recorded by the learned Commissioner is absolutely
illegal and erroneous. So far as the disability considered by the
learned Commissioner is concerned, the same is without there
being any relevant material and also evidence of the concerned
doctor and thus, the impugned award is on higher side
considering the 100% disability and 100% loss of working
capacity. Thus, the impugned award deserves to be modified to
the extent that the amount awarded by the learned
Commissioner to the tune of Rs.2,93,569/- is on higher side. So
far as the interest awarded by the learned Commissioner is
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concerned, the principal employer is liable to pay the interest
and not the Insurance Company as per the decision of the
Hon'ble Supreme Court in the case of Harshadbhai Amrutbhai
Modhiya (supra). Thus, the impugned award deserves to be
modified and the appeal deserves to be allowed in part.
8. In the result, the appeal is allowed in part. The impugned
judgment and award is modified to the extent that the amount of
compensation awarded by the learned Commissioner is hereby
reduced. The respondent - claimant is entitled to get
compensation at Rs.1,14,000/-, out of which Rs.99,000/- has
already been paid to the claimant and remaining amount is to be
paid to the claimant. The remaining amount shall be refunded to
the appellant - Insurance Company after following due procedure
and verifying its bank details through RTGS / NEFT. The
remaining amount which is required to be paid to the claimant,
shall be paid to the claimant after following due procedure and
verifying his bank details through RTGS / NEFT. The said
payment shall be made in favour of the respective parties within
a period of four weeks from the date of receipt of the copy of the
order. Registry is directed to transmit back the record and
proceedings to the concerned Court forthwith.
(HEMANT M. PRACHCHHAK,J)
V.R. PANCHAL
