Bombay High Court
Shaikh Salim Ramzan vs Ashok Beniram Kothawade on 5 October, 2010
Author: S.V. Gangapurwala
Bench: S.V. Gangapurwala
1 F.A. 1468/2010 - ( J )
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 1468 OF 2010
Shaikh Salim Ramzan
Age : 32 Yrs., Occ. Now Nil,
R/o : Subhash Chowk,
Pimpalner, Tq. Sakri,
Dist. Dhule. ..... APPELLANT
VERSUS
1. Ashok Beniram Kothawade
Age : Major, Occ. Business,
R/o : Brahmin Galli,
Pimpalner, Tq. Sakri,
Dist. Dhule.
2. The New India Assurance Co. Ltd.
Trough Branch Manager,
Branch Office, Dhule,
Dist. Dhule. ..... RESPONDENTS
Mr. P.V. Barde, Advocate holding for Mr. M.S. Kulkarni,
Advocate for the appellant.
Mr. M.D. Narwadkar, Advocate for respondent no. 1.
Mr. M.M.Ambhore, Advocate for respondent no. 2.
CORAM : S.V.
GANGAPURWALA, J.
DATE : 05/10/2010
JUDGMENT :
1. Admit. The record and proceedings is received. The present Appeal is taken for final hearing with the consent of the learned counsel ::: Downloaded on - 09/06/2013 16:30:34 ::: 2 F.A. 1468/2010 - ( J ) for the parties.
2. The appellant had filed an application for compensation before the Commissioner for Workmen's Compensation at Dhule [ For short, ' the Commissioner ' ] seeking compensation of Rs.
3,11970/- on account of the injuries sustained by the appellant while driving the motor vehicle during the course of and out of an employment with respondent no. 1. The said vehicle is also owned by respondent no. 1.
The same is insured with respondent no. 2.
3. It is the case of the appellant that he was in employment with respondent no. 1 as a driver on the vehicle i.e. Maruti Van bearing R.T.O. Registration No. MH-18/S-1854. He was getting salary of Rs. 3,500/- per month. According to the appellant, on 4/6/2005 he was driving the said vehicle on Tarabad - Satana road and one vehicle Qualis bearing R.T.O. Registration No. MH-21/B-654 came from the opposite side and gave dash to his Maruti van. The appellant suffered multiple injuries on his person.
He lost the total eye sight of his right eye. The accident took place during the course of and out of an employment with respondent no. 1. According to the appellant, he was aged 30 years on the date of accident and taking into consideration 100 % disability, his age and income of Rs. 3500/-
per month, the appellant claimed total compensation of Rs.
3,11,970/-.
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4. Respondent no. 1 admitted in his Written Statement that the appellant is his employee and was working as a driver on his vehicle and was paid salary of Rs. 3,000/- per month.
5. Respondent no. 2 - Insurance Company denied the contentions of the appellant by filing Written Statement. Respondent no. 2 denied the monthly income of the appellant, the injuries and the disability certificate and that the appellant was holding valid and effective driving licence.
6. The appellant examined himself and P.W. 2 Dr. Ramdas Wankhede. Respondent no. 1 also examined himself but respondent no. 2 Insurance Company did not lead any oral or documentary evidence.
7. The Commissioner vide its Judgment and Award dated 24/06/2009 partly allowed the application of the present appellant and granted compensation of Rs. 77,107/-. The Commissioner did not accept the contention of the appellant of he being 30 years of age. The Commissioner held that the appellant was 42 years of age on the date of accident, so also the Commissioner held that as per the disability certificate, the permanent disability is only 40 % and not 100 % and as such held that the earning capacity of the applicant has been lost to the extent of ::: Downloaded on - 09/06/2013 16:30:34 ::: 4 F.A. 1468/2010 - ( J ) 40 %. The Commissioner also held salary of the appellant to be Rs. 1800/-
per month and not Rs. 3,000/- per month. The appellant has assailed the said Judgment before this Court in the present Appeal.
8. Heard Mr. Barde, the learned counsel for the appellant, Mr. Narwadkar, the learned counsel for respondent no. 1 and Mr. M.M.Ambhore, the learned counsel for respondent no. 2 at length and also with their assistance gone through the record.
9. Mr. Barde, the learned counsel for the appellant canvassed following proposition :
(i) The Commissioner committed patent illegality in accepting the age of the appellant as 42 years relying on the injury certificate, but the disability certificate shows the age of the appellant on the date of accident as 32 years. The disability certificate which is issued after thorough examination, ought to have been relied upon.
(ii) The salary certificate is produced on record, which shows the salary of the appellant as Rs. 3,000/- per month. Even the owner has stepped into the witness box and has confirmed the salary of the appellant to be Rs. 3,000/- per month. Respondent no. 2 has not led any evidence to disprove the said fact. As such it was erroneous on the part of the ::: Downloaded on - 09/06/2013 16:30:34 ::: 5 F.A. 1468/2010 - ( J ) Commissioner to consider the salary as Rs. 1800/- per month on hypothetical consideration.
(iii) It is evident that total vision of one eye has been lost. It is also on record that because of the loss of the eye sight, the appellant had to surrender his licence and he can not now drive the vehicle. To butress his submission, the learned counsel relied on the Judgment of the Apex Court in the case of Pratap Narain Singh Deo V/s Shrinivas Sabata and another reported in AIR 1976 Supreme Court - 222 (1).
10. Mr. Narwadkar, the learned counsel appearing for respondent no. 1 supported the arguments of the appellant.
11. Mr. M.M.Ambhore, the learned counsel appearing for respondent no. 2 submitted that -
(i) The Judgment of the Commissioner does not suffer from any error. The Commissioner has rightly considered all aspects of the matter.
(ii) The disability certificate shows 40 % disability and as such medical certificate can only be the base for considering the disability and as such has rightly applied Section 4 (1) (c) Item 25 of Schedule I, Part I. ::: Downloaded on - 09/06/2013 16:30:34 ::: 6 F.A. 1468/2010 - ( J )
(iii) The salary certificate does not inspire confidence. The owner and the appellant are in collusion with each other and as such excessive amount is shown as salary.
12. Before I proceed to deal with the arguments of the learned counsels, it would be appropriate to reproduce the relevant provisions of the Workmen's Compensation Act [ For short, ' the Act ' ] necessary for the determination of the present controversy.
" Sec. 2 (1) : In this Act unless there is anything repugnant in the subject or context -
(a) [ *** ]
(b) " Commissioner " means a Commissioner for Workmen's Compensation appointed under Section 20.
(c) " Compensation " means compensation as provided for by this Act;
(d) xxxxxxxxxxxxxxxx
(e) xxxxxxxxxxxxxxxx
(f) xxxxxxxxxxxxxxxx
(g) " partial disablement " means, where the disablement is of a temporary nature, such disablement as reduces the earning capacity of a workman in any employment in which he was engaged at the time of the accident resulting in the disablement, and, where the disablement is of a permanent nature, such disablement as reduces his earning capacity in every employment which he was capable of ::: Downloaded on - 09/06/2013 16:30:34 ::: 7 F.A. 1468/2010 - ( J ) undertaking at that time, provided that every injury specified [ in Part II of Schedule I ] shall be deemed to result in permanent partial disablement ;
(h) " prescribed " means prescribed by rules made under this Act ;
(i) xxxxxxxxxxxxxxxx
(k) xxxxxxxxxxxxxxxx
(l) " total disablement " means such
disablement, whether of a temporary or
permanent nature, as incapacitates a
workman for all work which he was capable of in performing at the time of the accident resulting such disablement; [ Provided that permanent total disablement shall be deemed to result from every injury specified in Part I of Schedule I or from any combination of injuries specified in Part II thereof where the aggregate percentage of the loss of earning capacity, as specified in the said Part II against those injuries, amounts to one hundred per cent or more ];
(m) xxxxxxxxxxxxxxxx
(n) xxxxxxxxxxxxxxxx
" Sec. 4 (1) (b) : An amount equal to
[ sixty
Where permanent per cent ] of the
monthly
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8 F.A. 1468/2010 - ( J )
total disablement wages of the injured
results from the workman
Multiplied by
injury. the relevant factor ;
or
an amount of [ ninety
thousandrupee ]
whichever is more ; ".
" Sec. 4 (1) (c) : (i) in the case of an injury
Where permanent specified in Part II of
partial disablement Schedule I, such the results from the percentage of the injury. Compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury, and
(ii) in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the ::: Downloaded on - 09/06/2013 16:30:34 ::: 9 F.A. 1468/2010 - ( J ) loss of earning capacity (as assessed by the qualified medical practitioner ) permanently caused by the injury ; ".
" Schedule I , Part I ( Item 4 ) : Loss of sight to such an extent as to render the claimant unable to perform any work for which eye sight is essential - 100 percent loss of earning capacity ".
" Schedule I , Part II ( Item 25 ) : Loss of one eye, without complications, the other being normal - 40 percent of loss of earning capacity ".
13. So far as the age of the appellant is concerned, the disability certificate which has been issued by the Medical Superintendent, General Hospital, Dhule shows the age of the appellant on 21/4/2009 as 36 years.
The accident has taken place in the year 2005. As such, as per the said disability certificate, the age on the date of accident of the appellant is 32 years. The injury certificate which is issued lays down the age of the appellant as about 42 years. It is not specific. It appears to have been written in a casual manner. The injury certificate so also the disability certificate are issued by the same hospital. As such, taking into account the oral evidence and the disability certificate and further there is no contra evidence led by the respondents disputing the said age of the appellant, the ::: Downloaded on - 09/06/2013 16:30:34 ::: 10 F.A. 1468/2010 -
(J) age of the appellant on the date of accident can be considered as 32 years.
14. The salary certificate has been produced on record at Exh. 38, which shows the salary being paid by the owner at Rs. 3,000/- per month.
The owner himself has stepped into the witness box and has confirmed that he used to pay salary of Rs. 3,000/- per month. Though the appellant had claimed in his petition that he is getting Rs. 3500/- per month as salary, but the owner has contradicted the same and has stated that the appellant was paid salary of Rs. 3,000/- per month only. Taking into account the salary certificate and the deposition of the owner, so also taking into account the fact that there is contradiction in the evidence, it would be appropriate to consider the salary of the appellant as Rs. 3,000/- per month. The Commissioner has merely on hypothetical consideration that as per the Minimum Wages Act, considering the nature and responsibility of the work of the appellant has held that the appellant would be getting salary of Rs. 1800/- per month only. The deposition of the owner/employer and the salary certificate has not been relied by the Commissioner solely on the ground that the register in regard to the payment of each month salary is not produced. When there is no contra evidence, in such circumstances, the said statement should have been relied upon. As such, it can safely be concluded that the appellant was getting salary of Rs. 3,000/- per month.
15. This takes us to the moot question about the disability. No ::: Downloaded on - 09/06/2013 16:30:34 ::: 11 F.A. 1468/2010 - ( J ) doubt, the disability certificate shows the disability of the appellant as 30 %. It is established by the evidence of the Doctor, so also the certificate that the right eye of the appellant has been totally damaged and the total vision of the right eye is lost. It is also matter of record that the appellant had to surrender his driving licence due to the loss of total sight of one eye.
16. Though under the medical terms, the disability is only 30 % but while computing the compensation the loss of earning capacity is to be considered as because of the loss of vision of right eye, the appellant would not be in a position to continue with his avocation as a driver. It is not disputed that the appellant was driver by profession. In view of the fact that he had to surrender his licence, the appellant would not be in a position to drive the vehicle and continue as driver. Going through the definition of partial disablement and the total disablement as is envisaged in Section 2 (g) and (l) respectively, it is evident that the disablement to be considered is with regard to the reduction in the earning capacity of the workman in any employment, in which he was engaged at the time of accident resulting in disablement. In the present case though the medical disablement is about 30 %, still the said disablement is of permanent nature and has rendered appellant unfit for the work of driver.
17. It is not only the aspect of medical disablement i.e. required to be considered but taking into account the object and the spirit behind the ::: Downloaded on - 09/06/2013 16:30:34 ::: 12 F.A. 1468/2010 -
(J) provisions of the Workmen's Compensation Act and the definition of total disablement which means such a disablement whether of a temporary or permanent nature as incapacitates workman for all work, which he was capable of performing at the time of accident resulting in such disablement is required to be taken into consideration. The expression " incapacitates workman for all work which he was capable of performing at the time of accident resulting in such disablement " would mean the workman having been rendered incapable of performing that " work " which he had undertaken at the time of accident. The appellant being a qualified driver and was performing his duty as a driver, because of the loss of vision of right eye he has been incapacitated for all work as driver, he has been rendered unfit for the work of driver. The Commissioner, in such circumstances, committed a serious error of law in applying Section 4 ( 1)
(c) instead of Section 4 (1) (b) of the Workmen's Compensation Act. Once we come to the conclusion that it is the case of permanent total disablement, Section 4 (1) (b) of the Act would be applicable.
Consequently, Schedule I Part I and Item 4 would be applicable and not Schedule I Part II Item 25 as has been applied by the Commissioner. Item 4 of Part I of Schedule I lays down that if the loss of sight is to such an extent which renders claimant unable to perform any work for which eye sight is essential, then 100 % loss of earning capacity is to be considered.
The claimant being driver, because of loss of vision of right eye, the claimant had to surrender licence rendering him unable to perform any ::: Downloaded on - 09/06/2013 16:30:34 ::: 13 F.A. 1468/2010 -
(J) work of driver thereby resulting in 100 % loss of earning capacity.
18. In light of the above discussion, I hold that the appellant on the date of accident was 32 years of age drawing monthly salary of Rs.
3,000/- and Section 4 (1) (b) and Item 4 of Part I of Schedule I of the Act would be applicable. The appellant as such would be entitled for total compensation of Rs. 3,66,930/- i.e. Rs. 1800/- x 203.85.
19. In the result, the Appeal is allowed. The Order of the Commissioner is modified. Respondent nos. 1 and 2 are directed to jointly and severally pay the amount of Rs. 3,66,930/- to the appellant within the period of one month or else the said amount shall carry interest @ 7.5 % per annum from the date of this Order till the realization of the entire compensation amount. The amount already deposited by the respondent shall be adjusted from the amount awarded by this Court.
20. The present Appeal is accordingly allowed . However, there shall be no order as to costs.
[ S.V. GANGAPURWALA ] JUDGE knp/FA 1468.10 ::: Downloaded on - 09/06/2013 16:30:34 :::