(1) FA. 1360.2008 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 1360 OF 2008 New India Assurance Company Ltd., Having it's Head and Registered Office at New India Assurance Building, 87 M.G. Marg, Fort, Mumbai-1, Branch at Latur, Divisional Office, at Aurangabad .. Appellant VERSUS 1] Ramling Shrimant Swami, Age 26 years, Occu.: Nil, R/o Narwatwad, Tal. and Dist. Latur 2] Chandrakant Mukundrao Ghuge, Age : Major, Occu.: Business, R/o Wanjarwadi, Tal. Renapur, Dist. Latur .. Respondents AND CIVIL APPLICATION NO. 9578 OF 2009 IN FIRST APPEAL NO. 1360 OF 2008 Ramling Shrimant Swami .. Applicant VERSUS New India Assurance Co. Ltd. and anr. .. Respondents Mr. S.L. Kulkarni, Advocate for the Appellant Mr. S.S. Manale, Advocate for respondent no.1/applicant in C.A. 9578 of 2009 F.A. stands abated against respondent no.2 as per Court's order dated 25.3.2010 ... CORAM : K.U. CHANDIWAL, J. DATED : 26TH APRIL, 2010 ORAL JUDGMENT:- 1] Heard. Admit. Heard finally. The award by the learned Commissioner for Workmen's Compensation (2) FA. 1360.2008 Act and Judge, Labour Court, Latur in Workmen's Compensation Petition no. 13 of 2006 dated 17.11.2006 is questioned by the appellant. 2] Mr. Kulkarni submits even if the income of the casual labour is accepted to be Rs.100/-, the award could not be Rs.5,20,584/- as has been done by the learned Judge. Mr. Manale submits that loss of 3 fingers of claimant, driver by vocation, may be casual for the owner of the vehicle, but will entail him from driving any vehicle permanently. According to Mr. Manale this should be treated as 100% disability incapacitating the claimant to pursue his regular employment. 3] In order to stress the point, reliance is placed by the claimants on the judgment of the Apex Court in the matter of Pratap Narain Singh Deo V. Shrinivas Sabata and anr. reported in AIR 1976 SC 222. In the said case, the Apex Court found the carpenter during the course of his employment suffered amputation of left hand above elbow and observed that since carpenter can not work with one hand disablement is total and not partial. There cannot be a quarrel on the proposition of law by the Apex Court. The factual matrix in the present case warrants that the claimant lost his two fingers and the index finger is little bent but not permanently devastate, as could be seen from the photographs (3) FA. 1360.2008 tendered with the Petition before the learned Judge. 4] Schedule I Part 2 of the Workmen's Compensation Act contemplates list of injuries deemed to result in permanent partial disablement, as Amputation cases - upper limb (either arm). Clause 8 thereof provides in the event of loss of 3 fingers of one hand the percentage of loss of earning capacity is to be drawn at 30%. This amendment is effective from 1.2.1963. In view of this position, indeed the claimant could not have been able to stake claim beyond 30% of the loss of the earning as against 100% loss he has claimed and approved by the learned Judge. Be as it is, the fact remain the evidence for Rs.4000/- monthly being lacking the owner of the vehicle did not step in the witness box, the claimant being casual labour having deployed for the services for 1 day only and suffered the accident, the income could have been treated as Rs.100/- per day. Carrying the calculations accordingly, applying factor of 216=19 to the income and even if the loss is treated to be 100% the disability, the ultimate figure comes of Rs.3,89,142/-. 5] In the result, the award of the learned Judge requires interference. First Appeal is partly allowed as under:- . The order under challenge is modified, from the figure of Rs.5,20,584/- to Rs.3,89,142/- with (4) FA. 1360.2008 same interest. Other details remain un-altered. From the amount deposited by the appellant Insurance Company, after adjusting the claim, if residue remains, be remitted back to the appellant Insurance Company. 6] Consequently Civil Application no. 9578 of 2009 also stands disposed of. Sd/- (K.U. CHANDIWAL, J.) arp