Gujarat High Court
Devidas Vedu Patil vs Sureshkumar Nathulal Patel on 25 June, 2025
NEUTRAL CITATION
C/FA/5414/2007 JUDGMENT DATED: 25/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 5414 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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Approved for Reporting Yes No
--- No
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DEVIDAS VEDU PATIL
Versus
SURESHKUMAR NATHULAL PATEL & ANR.
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 2
MR VIRAL J DAVE(5751) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 25/06/2025
ORAL JUDGMENT
1. Present appeal is filed by the appellant - original claimant
under Section 30 of the Workmen Compensation Act (hereinafter
be referred to as "the Act") against the judgment and award
dated 26.06.2006 passed by the Ex-Officio Commissioner,
Workmen Compensation Act, Surat in W.C. (Non-Fatal)
Application No. 122 of 2004.
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2. Facts of the present case are that the appellant - claimant
was serving as a driver of tempo bearing registration No. GJ-05-
UU 2557 and while he was on duty and driving the tempo and
returning after delivering the goods on 29.07.2004, at that time
on the road the tree was fallen down on the tempo, due to which
he sustained injury in the nature of paraplegia. That the claimant
was shifted and he was permanently disable to do work and at
the time of incident, he was aged about 44 years and he was
earning his livelihood by doing driving tempo and earning
Rs.4500/- and also received Rs.100/- as allowance when he was
visited outside the Surat.
2.1 The respondents herein have filed their written statements
before the learned Commissioner and, thereafter, the learned
Commissioner has framed the issues at Exhibit 16. After
considering the arguments of the respective parties and oral as
well as documentary evidence, learned Commissioner has
allowed the application and awarded compensation with 10%
penalty and interest at the rate of 8%.
3. Being aggrieved and dissatisfied with the impugned
judgment and award, the appellant - claimant has filed this
appeal.
4. It appears from the record that at the time of admission of
this appeal, the Court has not framed the question of law.
5. Heard Mr.Hiren Modi, learned counsel appearing for the
appellant, Mr.Viral Dave, learned counsel appearing for
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C/FA/5414/2007 JUDGMENT DATED: 25/06/2025
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respondent No.1 and Mr.Vibhuti Nanavati, learned counsel
appearing for respondent No.2 at length.
6. Mr.Modi, learned counsel appearing for the appellant has
submitted the same facts which are narrated in the memo of
appeal. He has referred to and relied upon the decision of this
Court in the case of E.S.I.C Vs. Vasantbhai Bhudarbhai
Parmar reported in 2007 (1) GLR 879 and submitted that even
at the stage of final hearing, the appellant can agitate and and
raise the question of law. He has submitted that as the learned
Commissioner has committed serious error of law and facts in
disbelieving the income of the present appellant, only on the
ground that there was no cogent and material evidence
produced on record. He has submitted that the learned
Commissioner has not exercised the jurisdiction vested with him
and has awarded 10% penalty and 8% interest instead of 12%.
He has also submitted that the jurisdictional error committed by
the learned Commissioner which leads to miscarriage of justice
and, therefore, the same is considered to be the question of law
in the appeal. He has further submitted that though there is a
discretionary jurisdiction with regard to awarding penalty, the
learned Commissioner has committed an error of law and facts in
awarding only 10% penalty. He has submitted that so far as the
rate of interest is concerned, there is a statutory provision where
the Court can award 12% interest, the learned Commissioner
ought to have awarded 12% interest instead of 8% and,
therefore also, the learned Commissioner has committed serious
error and the same is involving the substantial question of law.
He has urged to allow the present appeal to the extent.
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7. Mr.Dave, learned counsel appearing for respondent No.1
has submitted that respondent No.1 has compassionate the
present appellant from day one on account of injury sustained
by the appellant; the respondent No.1 admitted the appellant in
the hospital and incurred all the medical expenses to the
appellant and he was properly compassionate by respondent
No.1. He has submitted that after considering the relevant
submissions and the material on record, the learned
Commissioner has rightly award only 10% penalty which, in the
facts of the case, is just and proper. He has submitted that the
appeal is devoid of merits and the same deserves to be
dismissed.
8. Mr.Nanavati, learned counsel appearing for respondent
No.2 has submitted that the impugned award passed by the
learned Commissioner is in consonance with the settled
principles of law and there was no any infirmity or illegality
committed by the learned Commissioner and thus, no
interference is required to be called for. It is submitted that since
the appellant has not proposed the substantial questions of law,
now at the stage of final hearing, the appellant cannot be
permitted to agitate the same. It is submitted that if this Court
considers minimum wages at the prevailing time, it comes to
Rs.2300/- and the appellant has specifically stated his income at
Rs.2500/- per month in the FIR and, therefore, the learned
Commissioner has rightly assessed the income of the appellant.
It is submitted that the appeal being meritless deserves to be
dismissed.
9. So far as the interest part is concerned, both the learned
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counsel appearing for the respondents have vehemently
submitted that after considering the facts of the case, the
learned Commissioner has rightly awarded 8% interest on the
compensation amount and no interference is required to be
called for.
10. This Court has considered the facts and circumstances of
the case and the material on record. This Court has perused the
impugned judgment and award passed by the learned
Commissioner. Considering the issue involved in the appeal as
contended by the learned counsel for the appellant and
responded by the otherside that whether the facts agitated
before this Court involved any question of law. It appears from
the material on record that the learned Commissioner, while
exercising the jurisdiction vested with him, has not committed
any error of facts and law with regard to considering the income
of the appellant as there was no any substantial evidence
produced before the learned Commissioner with regard to
earning. Though it was maximum gap provided under the Act
with regard to Rs.4000/-, but when in absence of any material
evidence before the Court, the Court has to consider the
minimum wages prevailing at the time of accident with regard to
the skill labourer since he was working as a driver. However,
learned Commissioner has considered the income of the
appellant at Rs.2700/- which is in my opinion, is just and proper
and no interference is required.
10.1 So far as the penalty is concerned, it is discretion on the
part of the Commissioner and after considering the facts of the
case and relevant material, the learned Commissioner has rightly
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C/FA/5414/2007 JUDGMENT DATED: 25/06/2025
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awarded 12% penalty against respondent No.1 and, therefore, I
am of the opinion that there is no any infirmity or illegality
committed by the learned Commissioner. Thus, the amount
awarded under the head of penalty at the rate of 10% is also
required to be maintained and, therefore, there is no any
infirmity.
10.2 So far as the rate of interest at 8% is concerned, the same
is required to be considered in light of the facts and the same is
required to be enhanced from 8% to 12%. Thus, the appeal is
required to be partly allowed qua interest only. So far as other
two contentions raised on behalf of the appellant are hereby
turned down and not accepted.
11. In view of the aforesaid facts and circumstances of the
case, the appeal is allowed in part. The Insurance Company is
directed to deposit difference of the rate of interest from the
date of award till its realization before the learned Commissioner
within a period of eight weeks from the date of receipt of the
order. On deposit of the said amount, it is open for the appellant
to make appropriate application for disbursement of the
difference amount. Learned Commissioner shall consider the
application that may be filed by the applicant for disbursement.
Learned Commissioner is directed to disburse the such amount
in favour of the appellant after verifying the bank details through
RTGS/NEFT. Registry is directed to transmit back the record and
proceedings to the concerned Court forthwith. Direct service is
permitted.
NEUTRAL CITATION
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Pending civil application/s, if any, shall stand disposed of
accordingly.
(HEMANT M. PRACHCHHAK,J)
V.R. PANCHAL
