Dhyan Singh vs Jogendra Yadav & Anr.
2022 Latest Caselaw 13951 MP

                                                                    1
                                               IN THE HIGH COURT OF MADHYA PRADESH
                                                            AT JABALPUR
                                                                 BEFORE
                                                   HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                                         ON THE 31st OF OCTOBER, 2022

                                                      MISC. APPEAL No. 2470 of 2003

                                          BETWEEN:-
                                          DHYAN SINGH, S/O SHRI ATAL SINGH, AGED
                                          ABOUT 25 YEARS,     GRAM-MIRCHATOLA,
                                          POTHAR PHODI, DISTT. SEONI (MADHYA
                                          PRADESH)

                                                                                                 .....APPELLANT
                                          (BY SHRI NARENDRA CHAUHAN, ADVOCATE)

                                          AND
                                  1.      JOGENDRA YADAV, S/O SHRI DULICHAND,
                                          TRUCK   OWNER-MP-20-G/2490,  R/O   219,
                                          BHARTIPUR, JABALPUR (MADHYA PRADESH)

                                          THE    ORIENTAL INSURANCE     COMPANY,
                                  2.      DIVISIONAL   OFFICE  1415-WRIT   TOWN,
                                          JABALPUR.

                                                                                              .....RESPONDENTS
                                          (BY SHRI PRAMOD KUMAR SAHU, ADVOCATE FOR RESPONDENT
                                          NO.2)

                                        This appeal coming on for hearing on this day, the court passed the

                                  following:
                                                                     ORDER

This miscellaneous appeal is filed by the claimant under Section 30 of the Workmen's Compensation Act seeking enhancement of compensation awarded by learned Commissioner for Workmen's Compensation/Labour Court, Jabalpur in Case No.6/01 W.C.Non Fatal on the ground that claimant-Dhyan

Signature Not Verified Singh was working as a Cleaner on Truck Dumper No.M.P.20-G/2490 owned SAN

Digitally signed by TULSA SINGH by respondent No.1-Jogendra Yadav and insured with respondent No.2- Date: 2022.11.01 18:46:28 IST

Oriental Insurance Company.

On 05/12/2000 while coming from Bargi to Jabalpur driver of the Dumper had caused accident with standing truck causing fracture in left leg of the claimant, as a result of which he sustained injuries on different part of the body besides fracture of left leg.

It is submitted that discharge certificate issued by the Medical Board is available on record as Ex.P/6 in which it is mentioned that it is an old case of fracture Malunitted Left Tibia Fibula Lower 1/3rd with partial ankylosis ankle left with monoparisis lower limb and certified total disability is 40%. It is submitted that this disability should have been taken to be cent percent and award should have been made accordingly.

Reliance is placed on the judgment of Hon'ble Supreme Court in Pratap Narain Singh Deo Vs. Shrinivas Sabata and another, 1976 A.C.J.141 wherein in case of a carpenter who had sustained amputation of left arm above elbow on account of falling down was declared unfit for conduction work of a carpenter and under those facts and circumstances, disablement was taken to be total and not partial as the work of carpentry could not be done by one hand only.

Similarly reliance is placed on the judgment of a Coordinate Bench of this Bench in Miscellaneous Appeal No.695/2011 (National Insurance Co. Ltd. Vs. Ramkishore Mishra and others) decided on 13th September, 2012 where recording a fact that there was evidence on record to show that workman/respondent was totally unable to discharge the work which he was earlier to the accident, refused to entertain the appeal. Signature Not Verified SAN Reliance is also placed on the judgment of Allahabad High Court in Digitally signed by TULSA SINGH Date: 2022.11.01 18:46:28 IST Oriental Insurance Co. Ltd. Vs. Shambhu Nath Yadav and another, 2008

ACJ 2599. In that case workman-driver had sustained amputation below knee, thus, it was held that injured will not be able to drive any vehicle and was entitled to compensation treating cent percent loss of earning capacity.

It is pointed out that Dr. Ravi Shankar Choudhary, Orthopedic Specialist deposed that claimant will be able to carry out only light work while sitting and cannot conduct his work while standing. Reading this evidence, it is submitted that learned Commissioner should have considered it to be a case of cent percent disability.

Shri Pramod Kumar Sahu, learned counsel for respondent No.2, supports the award.

After going through the award and the evidence available on record, two things emerge. Firstly, certificate of disability Ex.P/6 does not talk of any functional disability. Secondly, in cross-examination, Dr. Ravi Shankar Choudhary had admitted that he had not treated the claimant. He admitted that appellant can carry out his daily routine.

Taking these facts into consideration when impugned award is tested, it is evident that Dr. Ravi Shankar Choudhary once admitted only 40% disability, then impugned award cannot be faulted with. Judgements passed in the cases o f Pratap Narain Singh Deo (supra), Ramkishore Mishra and others (supra), Shambhu Nath Yadav and another (supra) , are distinguishable on

facts inasmuch as there is no evidence of cent percent functional disability in the present case.

Accordingly, this miscellaneous appeal fails and is hereby dismissed. Record of the Tribunal be sent back immediately. Signature Not Verified SAN

Digitally signed by TULSA SINGH Date: 2022.11.01 18:46:28 IST

(VIVEK AGARWAL) JUDGE ts

Signature Not Verified SAN

Digitally signed by TULSA SINGH Date: 2022.11.01 18:46:28 IST