Gujarat High Court
Suramsing Dayansing Tapyal vs Jasbirsing Sardar on 13 November, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1149 of 2009
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SURAMSING DAYANSING TAPYAL
Versus
JASBIRSING SARDAR & ANR.
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Appearance:
MR DJ BHATT(164) for the Appellant(s) No. 1
MR GC MAZMUDAR(1193) for the Defendant(s) No. 2
MR HG MAZMUDAR(1194) for the Defendant(s) No. 2
MS KARUNA V RAHEVAR(3818) for the Defendant(s) No. 2
SERVED BY AFFIX. (R) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 13/11/2025
ORAL ORDER
1. The present First Appeal is filed under Section 30 of the
Workmen's Compensation Act, 1923 by the original claimant for
enhancement of the compensation granted by the learned
Commissioner, Workmen's Compensation Act, Baroda vide order
dated 04.04.2007 in Workmen's Compensation Application No. 49
of 1999.
2. Heard learned advocate Mr. D.J. Bhatt for the appellant and
learned advocate Mr. H.G. Mazmudar for respondent No. 2 on
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Hybird mode. Though served, none appeared for respondent No.1.
3. Brief facts of the case are as under:
3.1 The claimant, on 18.02.1999, was driving a truck, and when
the truck reached near Morbi city, close to the railway underbridge,
the said truck bearing registration number GQB-5057 dashed with
another vehicle. Resultantly, the claimant sustained serious
injuries on his left leg. The claimant also sustained fractures of the
tibia and thigh. The claimant according to the claim application,
was about 30 years old and was earning a salary of Rs.2,500/- per
month and hence, claimed compensation of Rs.2,51,576/- with
interest at the rate of 18% per annum from the opponents. The
application was contested by the insurance company by filing a
written statement at Exhibit-8. The employer - opponent No. 1,
though served, did not contest the application. After considering
the evidence on record, the learned Commissioner partly allowed
the claim application by granting a sum of Rs.92,343/- with interest
at the rate of 6% per annum from the date of application till
realization.
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3.2 Being aggrieved and dissatisfied with the quantum of
compensation, the claimant has filed the present First Appeal.
4. Learned advocate for the appellant contended that the
present First Appeal is filed for enhancement of compensation, as
the disability which has been considered by the learned
Commissioner is not proper. It is submitted that while determining
compensation, the injury need not be seen, but the overall impact
of the injury is required to be seen. In the present case, Dr. Uday
Ramchandran has assessed the disability at 68% of the left lower
extremity and 5% of whole man for pelvic injury. The learned
Commissioner, after considering the oral deposition of the said
doctor as well as the medical certificate, considered 36.5% of the
body as a whole and awarded compensation accordingly. It is
further submitted that, considering the nature of the work of the
appellant, the disability ought to have been assessed higher than
36.5%. Considering the injuries sustained by the appellant, the
appellant is not in a position to perform driving activities and,
therefore, there is 100% disablement in employment. Therefore,
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the compensation is required to be enhanced. Learned advocate
for the appellant relied upon the case of "Indra Bai v. Oriental
Insurance Company Ltd. and Another", reported in 2023(8)
SCC 217, and contended that when the disablement incurred in an
accident incapacitates a workman for all work which he was
capable of performing at the time of the accident, resulting in such
disablement, the disablement would be taken as total for the
purpose of awarding compensation. No other submissions were
canvassed by the learned advocate for the appellant.
5. Per contra, learned advocate for respondent No. 2 -
Insurance Company has supported the judgment and order and
contended that the learned Commissioner has rightly appreciated
the medical evidence and assessed the disability of the appellant.
No other submissions were canvassed by the learned advocate for
the respondent No. 2.
6. Having considered the submissions canvassed by the
learned advocates for the parties and on perusal of the record and
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proceedings, it appears that the only question raised in the present
appeal is with regard to the assessment of disability. If the
certificate issued by Dr. Uday Ramchandran, recorded at Exhibit
31 dated 02.03.2005, is considered, it is stated that the appellant
has difficulty in walking, is unable to walk fast, experiences pain
during walking and climbing, and has difficulty in squatting and
sitting, with apprehension of fall due to hip and O/C malunion of
the tibia and fibula. However, there is no medical evidence on
record which indicates that the appellant is completely unable to
perform his work as a driver, which he was doing prior to the
accident. It is for the appellant to establish, by way of leading
medical evidence, that due to his injuries which he has sustained
in the accident, he is unable to carry out those activities. The
medical evidence produced on record has been considered by the
learned Commissioner, and has accepted the disability assessed
by the medical expert. In the absence of any contrary material
pointed out by learned advocate for the appellant for increase in
percentage of disability, I am of the view that the learned
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Commissioner has properly appreciated the evidence available on
record.
7. The decision of "Indra Bai (Supra)", however, is not helpful
to the appellant. As recorded in paragraph 5 of the said decision,
the doctor in that case issued a certificate indicating permanent
disability to the extent of 50%, declaring that the claimant was unfit
for labour work. The High Court, on challenge made by the
appellant, reduced the disability from 50% to 40% for the purpose
of calculating compensation. In the present case, there is no such
medical evidence led by the appellant indicating that the appellant
is unfit for the work of driving. Further, the assessment of disability
by the learned Commissioner is purely based on the medical
evidence placed before him.
8. Learned advocate for the appellant also contended that the
rate of interest which has been awarded at 6% be increased to 9%
per annum considering the nature of the injuries. However,
considering the date of the accident, I do not find any reason to
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interfere with the rate of interest, which appears just and
reasonable.
9. In view of the above facts and circumstances, the First
Appeal lacks merit and the same is hereby dismissed.
10. Record and proceedings be sent back to the concerned
Tribunal / Court forthwith.
(D. M. DESAI,J)
MUSKAN
