Bombay High Court
The United India Insurance Co. Ltd. vs Suryakant Damodar Meherkhambe on 11 October, 2013
Author: A. P. Bhangale
Bench: A. P. Bhangale
FA-1752-2005
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.1752 OF 2005
THE UNITED INDIA INSURANCE CO. LTD. )
th
Stadium House, 4 Floor, Veer Nariman Road, )
Churchgate, Mumbai - 400 020. )...APPELLANT
V/s.
1 SURYAKANT DAMODAR MEHERKHAMBE
ig )
C/o.Mr.Balkrishna Govind Bhalerao, )
Navrang Society, Near Adarsh Vidhyalaya )
Shell Colony Road, Chembur, Mumbai-78 )
)
2 SHRI NANDU TABAJI GITE )
Dureanand Bhaiye Chawl, Kala Talao, )
Kalyan. )...RESPONDENT
Mr.S.M.Vidyarthi Advocate for the Appellant.
Mr.Avinash Gokhale & S.U.Mehta Advocates for the Respondent No.1.
CORAM : A. P. BHANGALE, J.
DATE ON WHICH :
JUDGMENT IS RESERVED : 7th OCTOBER, 2013.
DATE ON WHICH :
JUDGMENT IS PRONOUNCED : 11th OCTOBER, 2013.
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FA-1752-2005
JUDGMENT :
1 The appeal is against the judgment and order dated 21-02-2004 passed by learned Commissioner for Workmen's Compensation Act at Mumbai in Claim application WCA No. 761/C-169 of 2000 whereby the claim for sum of Rs 2,27,472/-( Two Lakhs Twenty Seven Thousand Four Hundred Seventy Two only) was awarded @ 12 % p.a. from the date of the accident till realization.
2 Heard submissions at the Bar.
3 Facts are:-
On 17-11-1999, Shri Suryakant Damodar Meherkhambe, Aged 38 years, was driving the Motor Vehicle MH-05-D-1129 belonging to Shri Nandu Tabaji Gite (Employer), and insured with the United India Insurance Co. Ltd., Mumbai, and met with an accident at Beturkar Pada and sustained serious injuries. Suryakant had sustained fracture tibia and Fibula (Left Leg) amongst other multiple injuries on his person.
Suryakant was admitted in Rajawadi Hospital, Ghatkopar, on 17-11-1999, till 24-11-1999, when he was discharged. Thereafter, he had to undergo treatment as outdoor patient. As a result of the avk 2/7 ::: Downloaded on - 27/11/2013 20:25:23 ::: FA-1752-2005 accident he is not in a position to drive the vehicle and cannot work as Driver. Thus he suffered 100% loss of earning capacity. Suryakant was earning Salary of Rs 3000/- per month. The Employer did not dispute these facts but contended that the liability to reimburse is that of the insurer since the motor vehicle was insured covering the date of the accident. The insurer company denied its liability on the ground that the accident did not result in the 100% permanent partial disability so as to disable Suryakant from pursuing the occupation as Driver permanently.
4 It is argued that there is no evidence that driving license of Suryakant was cancelled. Medical opinion supports the claimant that there is tenderness at the location of fracture, there is stiffness at left ankle joint resulting in restricted movements, with difficulty in walking, lifting heavy weights, as also for squatting. Due to fracture and deformity resulted from the accident the Driver would not be able to pursue his occupation as driver. Transport authority would not renew driving license although it may not have cancelled his driving license after the accident. It is urged that there was total occupational disability as driver for the Claimant as he would not be able to drive any Motor vehicle in future due to injuries sustained in the accident. In avk 3/7 ::: Downloaded on - 27/11/2013 20:25:23 ::: FA-1752-2005 other words, the workman would not be able to do the work as driver for which he was employed.
5 My attention is drawn to Section 2 Clause (l) of the Act :
Section 2(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 performing at the time of the accident resulting in such disablement :
Provided that permanent total disablement shall deemed to result from the permanent total loss of the sight of both eyes or from any combination of injuries specified in Schedule I where the aggregate percentage of the loss of earning capacity as specified in that schedule against those injuries, amounts to one hundred per cent:
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.avk 4/7 ::: Downloaded on - 27/11/2013 20:25:23 :::
FA-1752-2005
6 It has to be borne in mind that the occupation of the driver involves skill and alertness to operate the motor vehicle, free movements to apply accelerator, brakes, clutch and change gears simultaneously, giving of signals. Claimant's incapacity to earn as Driver which was his sole occupation to earn his livelihood is relevant fact in this case. Assuming for the sake of argument, he may be able to do some kind of work but the crucial question is whether he can earn his livelihood as driver which was his sole occupation at the time of accident? The answer is in the negative. Incapacity to work has to be determined with reference to the sole occupation of the claimant as Driver at the time of the accident. It is not the case of the employer that the claimant was employed for any other work. The insurer did not lead any evidence to the contrary. Mere averment in written statement cannot be construed as evidence.
7 It therefore follows that the claimant in this case suffered 100% loss of earning capacity of his occupation as he was incapacitated as " Driver" which was his sole occupation to earn his livelihood at the time of the accident. There is no medical opinion to point out to the contrary on record. It must be borne in mind that the learned commissioner is not bound by technical rigidity of the rules of Civil avk 5/7 ::: Downloaded on - 27/11/2013 20:25:23 ::: FA-1752-2005 Procedure Code and Indian evidence Act while deciding the Claim for compensation under the Workmens' Compensation Act. There was sufficient material on record to indicate that the claimant suffered the accident while he was in the employment of the opposite party no.1. In the present case it appears the learned Commissioner awarded less compensation than payable under the Act.
8 The compensation amount need to be just, fair, reasonable and equitable, irrespective of the claim amount mentioned in the application. If there are two possible interpretations of a provision one which favors the subject ought to be preferred in beneficial legislation.
Reference may be made to Helen C. Rebello & others Vs. Maharashtra State Road Transport Corporation and another reported in 1999 ACJ 10 (Para 38). Reference may also be made to the ruling in Arjun Gangappa Kore Vs. Nirmal Bhagchand Bothra and Others reported in 2005 ACJ 1119 to find support to the proposition that if an workman suffers total disablement for the work he was performing as his sole source of livelihood at the time of the accident, then he is entitled to claim compensation calculated under section 4(1)(b) of the Act. Sixty percent of the monthly wages subject to maximum Rs.2,000/- within Explanation II of Section 4 of avk 6/7 ::: Downloaded on - 27/11/2013 20:25:23 ::: FA-1752-2005 Workmen's Compensation Act, multiplied by the applicable relevant factor as prescribed under the IVth Schedule of the Act. Thus calculated 60% of the salary sum of maximum Rs.2000/- is Sum of Rs.1200/- x Relevant factor of 189.56= Rs.2,27,472/-, as the just Compensation as provided under the Act is payable. No interference is required in appeal. Hence appeal is dismissed accordingly.
ig ORDER
Appeal is dismissed.
No orders as to costs.
(A. P. BHANGALE, J.)
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