- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEALS NOS.1243/2009 TO 1247/2009 FIRST APPEAL NO.1243/2009 Tulshiram Babu Jorwar. ...Appellant.. Versus Oriental Insurance Co.Ltd. & another. ...Respondents... ..... Shri Sachin Deshmukh, Advocate for appellant. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-== FIRST APPEAL NO.1244/2009 Vishnu Purbhaji Mulgir. ..Appellant. Versus Oriental Insurancen Co.Ltd. & another. ..Respondents.. ..... Shri Sachin Deshmukh, Advocate for appellant. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- - 2 - FIRST APPEAL NO.1245/2009 Gopal Ramji Bhusnar. ..Appellant.. Versus Oriental Insurance Co.Ltd. & another. ..Respondents.. ..... Shri Sachin Deshmukh, Advocate for appellant. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- FIRST APPEAL NO.1246/2009 Sopan Tukaram Kedale. ..Appellant.. Versus Oriental Insurance Co.Ltd. & another. ..Respondents.. ..... Shri Sachin Deshmukh, Advocate for appellant. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- FIRST APPEAL NO.1247/2009 Baban Nanduappa Paralkar. ..Appellant.. Versus Oriental Insurance Co.Ltd. & another. ..Respondents.. ..... Shri Sachin Deshmukh, Advocate for appellant. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- - 3 - ..... CORAM: K.U. CHANDIWAL, J. DATE: 19.06.2009 PER COURT: 1] Heard counsel for appellants / claimants in these appeals. 2] On 12.6.2009, after hearing the counsel extensively, considering the averments in the judgment, the matters were to be heard finally at admission stage and consequently the submissions are advanced. For the purposes of the orders to be passed, the record need not be called nor the respondent – insurance company to be heard. 3] On 25.12.2008, Tulshiram was driving the Truck No.MH-22-N-0398 alongwith other labours and in the process, it toppled resulting in the labourers and the driver Tulshiram suffering fracture and other multiple injuries. The matter was reported to the Police, investigation was carried out. The driveri Tulshiram with other labours namely Vishnu, Gopal, Sopan and Baban preferred petitions for compensation under the Workmen’s Compensation Act before the learned Commissioner and Civil Judge, Senior Division at Parbhani. The learned Judge / Commissioner, considering the scope of the inquiry in the matter and the nature of evidence by respective claimants / appellants, did not agree with the contentions for grant of compensation u/s 4 of the said Act and dismissed the petitions. Hence, the appeals. 4] Shri Sachin Deshmukh, learned counsel for appellants strenuously canvassed that it was not open for the learned Judge to have discarded the - 4 - medical certificate on the ground that such certificate should have been issued by regular medical board. According to him, the nature of disablement suffered by each of the claimant was sufficient to bring the case in terms of Section 2 of the Workmen’s Compensation Act, 1923 as the accident occurred during the course of employment. 5] The owner supported the contention of each of the claimant / appellant, as he did not dispute about the accident and also did not challenge the quantum. His contention was, it was the insurance company, who is required to indemnify and hence he tried to wash off himself from the liabilities. 7] The contention of counsel that there is non-application of mind by the learned Judge basically is incorrect. Though there is no fetters on the learned Judge to accept the certificate issued by medical practitioner as is defined u/s 2 (i) of the Workmen’s Compensation Act, 1923 as the medical officer, who has issued the certificate in the instant case is within the bracket of a qualified medical practitioner under the said arrangement. The controversy basically does not stop here. It was expected of the claimants / appellants to have produced the bills, medical treatment papers or the X-ray plates. Mere examination of the doctor, who has rather no occasion to treat the patient, barring issuance of the injury certificate by itself, is not sufficient. Added to it the difficulty that the appellant in each of the case is bound to face, is the nature of injuries referred in the individual certification, portrayed, reproduced hereinbelow needs consideration. 1] Tulshiram Babu Jorwal - First Appeal No.1243/2009 “Fracture to the fibula fracture left with lateral mallious fracture left side with multiple contusion abrasions allover the body.” - 5 - 2] Vishnu Purbhaji Mulgir - First Appeal No.1244/2009 “Fracture radius ulna with contusion abrasions on left leg and back, difficulty with painful movement at right wrist joint and restricted movement of back.” 3] Gopal Ramji Bhusnar - First Appeal No.1245/2009 “Fracture right olecreons with sprain of the right and left ankle joint painful and restriction movement at right elbow joint and ankle joint.” 4] Sopan Tukaram Kedale - First Appeal No.1246/2009 “Fracture metacarpal 3rd and 4th with fracture lateral mallieousu with painful with restriction of movement at left ankle joint and difficulties in walking.” 5] Baban Nanduappa Paralkar - First Appeal No.1247/2009 “Fracture carpals right side with fracture lateral mallious left with contusion on the left leg.” 8] The certificates indicate that it was fracture to a particular part of the body. Obviously, there is no amputation. We shall not be insisting that it is only the amputation that will prove the permanent disablement. However, the fracture to which reference is given by the medical officer, at no stretch of imagination, can be indicated or could be proved to be of a permanent nature or that it was making unable to the individual claimant to follow his pursuits or even he could not have ordinary squatting. The contusion or abrasions on the leg or painful movement at right wrist joint by itself will not culminate into permanent disablement. 9] The learned Judge was correct when he says that in order to establish - 6 - the nature of injuries, atleast the claimants should have produced medical papers, X-ray plates. The claimants have failed to do so. The contention that the Commissioner himself should have called such record is misplaced and difficult to accept. 10] The learned Judge found, immediately after the accident, the claimants were referred to the primary health centre. There is report of Police (Exhs.24 & 25). The police report indicates that the injuries were superficial. We may ignore the Police report that the injuries were superficial or simple in nature, but the fact remains that the claimants / appellants were examined at the primary health centre, Mandwi, there was no fetters for the claimants to have proved and placed such evidence and from said hospital to establish that indeed they have the severance of injuries or that there was fracture or there was permanent disablement noticed even primarily by the medical officer. 11] The owner of the vehicle speaking in tune with the claimants is natural, but that will not be advancing case of the claimants / appellants to blindly act upon, as ultimately it is the Judge, who has to decide the application and it is the insurance company, which was required to indemnify. 12] The learned counsel placed reliance on the judgment of K. Janardhan V/s United India Insurance Co.Ltd. [ (2008) 8 Supreme Court Cases, 518 ]. It was a matter where the victim had suffered amputation. He was a driver. The Hon’ble Lordships found that considering the nature of injuries suffered by him, he was incapacitated for renewal of driving licence. He will not be following his regular pursuits as a driver and consequently Lordships observed that the disablement and the agony suffered by the said victim to be 100%. There can not be quarrel on the legal proposition, as indicated above, it is remotely applicable to the facts at hand. - 7 - 13] The counsel then took recourse to the judgment of this Court in the matters of The New India Assurance Co.Ltd. V/s Syed Aejaz & another [ First Appeal No.1207/2008 decided on 6.5.2009 ] and New India Assurance Company Ltd. V/s Ashish & another [ First Appeal No.1154/2008 decided on 18.11.2008 ]. In the matter of Syd Aejaz, it was the driver, who suffered seriously in the accident. Medical practitioner indicated, there was deformity of 17% and he could not have plied the vehicle. In the case of Ashish, there was 45% disablement as was indicated by Dr.Mangesh Tehare. Though Dr.Tehare has accepted that the claimant could do other sitting job, this Court found that it is of no much help to the challenging appellant / insurance company as the nature of the work the victim in that case was required to follow, made him incapable to do any kind of work. The total or partial disablement, as carved out in the Workmen’s Compensation Act, 1923, will have to be established by the claimants that by such accident or sufferance, it has made them incapacitated for all the work, which the were capable of performing at the time of incident resulting in the disablement. It was expected of the claimant in each of the case to have established that the nature of injuries, which are referred hereinabove, are of such a grave nature, which have made them not to follow their regular pursuits or even other pursuits in the manner it was expected of them. 14] The learned Judge did not commit any mistake in rejecting the claim petitions of the appellants / claimants. Hence, the appeals are dismissed. No order as to costs. (K.U. Chandiwal, J.) ndk/c1960913 - 8 -