1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.3956 OF 2008 (with C.A.No.11317/2008) M/s New India Assurance Co.Ltd., having it's Regd. and Head Office at New India Assurance Building, 87, M.G.Road, Fort, Mumbai 400 001, Branch at Latur and Divisional Office at Ajay Engg.Compound Dr.Rajendra Prasad Road, Aurangabad 431 005 through it's Senior Divisional Manager Vishwas s/o Bansi Gaikwad, 54 yrs. ...APPELLANT (Orig.IInd Opponent) VERSUS 1. Laxman s/o Gopinath Kamble, Age 21 yrs. Occ.Nil, r/o Shirpur Tajband Tq.Ahmedpur, Dist.Latur. (Orig.applicant) 2. Dalwindersing, 11/12, Jalaram Compund, Purna Village Bhiwandi, Pin 421 302, Dist.Thane. (Orig.1st Opponent) ...RESPONDENTS ... Mr.V.N.Upadhye, Adv., for the appellant. Mr.R.D.Biradar, Adv., for respondents. ... 2 CORAM: K.U. CHANDIWAL, J. DATE :22nd Jan.,2010 *** PER COURT : 1. Heard respective Counsel. The matter is finally heard at admission stage. Record and proceedings verified by learned Counsel. 2. In an unfortunate accident, the claimant Laxman suffered amputation below knee at Khammam Hospital and subsequent amputation through knee at Civil Hospital, Latur, certified by Dr.Khah'd Wabici Kazi, a medical practitioner at Latur. The claimant approached learned Commissioner under Workmen's Compensation Act, seeking claim against the owner of the vehicle, driver and the Insurance Company. The learned Judge, on analysis of the evidence and documents, reached to the conclusion of fixing the liability against Appellant (the respondent in petition), to the extent of Rs.5,37,600/- with interest at 12 per cent per annum from the date of accident till its realization. This order is impugned by the Insurance Company. 3. Mr. V.N.Upadhye, Counsel submits, the claim is not maintainable because (a) at the material time the claimant was driving the vehicle, having no valid license to do so, having 3 reflected the same in the panchnama drawn by the Police (b) the income, as to drawing Rs.4,000/- per month is not proved, (c) the calculation carried by the learned Judge are far fetched, to be digested, (d) the post medical facilities available to the claimant are ignored. 4. During the course of submissions, Counsel for the appellant Insurance Company stressed that there is minimal reduction in the earning capacity of the claimant Laxman. He has medical facilities available, the fracture by itself will not tantamount to loss of total earning capacity. To stress his point, he took recourse to judgment in the matter of Ramprasad Balmiki Vs. Anil Kumar Jain and others ( (2008) 9 SCC 492). It was a case where the Apex Court found the appellant to be guilty of suppression of facts, with a view to obtain a just compensation. He did not place all relevant materials on record. He did not bring to the notice of the Court the benefits to which he was found entitled pursuant to order of retirement on medical invalidation. Those materials have not been placed before the Tribunal. The conclusion as regards quantum of just compensation was overlooked. The Apex Court also observed, there exists distinction between "total disablement" and "total permanent disablement". 4 5. This is a case where there is apparently total permanent disablement, the artificial limb to the claimant Laxman would not facilitate him to pursue his vocation in the same zeal, valour and capacity, it has certainly adversely affected his working capacities and capabilities. 6. On behalf of the claimants/respondents, the learned Counsel submits, there is no error on the part of the learned Judge under Workmen's Compensation Act. The claimant has lost his earning being a Cleaner on the truck, owing to amputation, as indicated above. He was not driving the vehicle. 7. The assessment of evidence, reading of the documents demonstrate that the claimant Laxman could not be a driver or driving the vehicle at the material time. Even it was so suggested in the cross examination, pointing his sleeping position and how owing to jerk, he could be pushed in the driver's seat. He was unconscious, removed, could not know details of the accident, having got his consciousness at the hospital. Whatever was recorded in his absence by the Police by itself should not have been accepted as a gospel truth, particularly without any reference to the Police while drawing panchnama. 5 8. The prosecution to the driver Gorakhnath adds to the contention of the claimant that it was Gorakhnath alone who was driving the vehicle and it could not be Laxman, the claimant. The statement recorded by the Police, translated by the witness produced before the learned Judge, also stands to this situation. In the above scenario, contention of Mr.Upadhye, Counsel, that the claimant was driving the vehicle and, therefore, no entitlement, is contrary to the record. 9. Then comes the situation of effecting calculation by the learned Judge. Mr. V.N.Upadhye, Counsel, was fair in asserting that there could not be hike in the affairs of calculation barring income component derived by the learned Judge. I find substance in such submission. There is no documentary evidence produced by claimant Laxman to demonstrate, indeed, he had a earning of Rs.4,000/- per month. His assertion, having approached the owner or the brother of the owner for such certificate and not succeeding therein, though indicate a dismal position, however, before the Court there is no document to establish his regular earning. Since this was the practical position, there was no reason for the learned Judge to have drawn his own surmises and assumptions to hold that the claimant was drawing a salary of Rs.4,000/- per 6 month. The calculations carried by the learned Judge treating the monthly salary as Rs.4,000/- has, consequently, resulted in a mistake. 10. The vocation of the claimant, being a Cleaner, as he had asserted and, rather, proved, though he has not established his salary to be Rs.4,000/-, notionally his salary can be treated as Rs.3,000/- per month. 11. The loss of his leg below knee with stump existing 12.7 cm, having referred in Schedule I, brings the case for entitlement to the extent of 60 per cent. The claimant was 20 years of age at the time of accident, consequently, the factor, as shown in Schedule IV will be of 224 which will be applicable. Taking these calculations into consideration, entitlement of the claimant Laxman comes to Rs. 4,03,200/-. 12. I could see that the learned Judge definitely erred in saddling interest at the rate of 12 per cent; that too, from the date of the accident. There is nothing to suggest that any notice was served by the claimant upon the owner of the truck or in turn, as statutorily required, the owner had intimated the same to the appellant Insurance Company. In absence of such basic requirement, the appellant Insurance Company 7 could not be saddled or directed to remit interest at the rate of 12 per cent from the date of accident. 13. The survey of evidence illustrates that the appeal needs to be partly allowed as under: The appeal is partly allowed. The claim of Rs.5,37,600/- is set aside. Instead thereof, the original respondent (appellant herein) is directed to remit an amount of Rs.4,03,200/- with interest at the rate of 9 per cent from the date of the order dt.6.8.2008. Civil Application also disposed of. [K.U. CHANDIWAL, J.] agp/3956-09fa