1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 75/2009 WITH CIVIL APPLICATION NO.361/2009 WITH CIVIL APPLICATION (ST) NO.16453/2009 SUMAN RAMESH WAGH VS. CHATUR ABHIMAN PAQAR AND ANOTHER ... Shri V.N.Upadhye, Advocate for the appellant, Shri S.S.Patil, Advocate for respondent No.1, and Shri S.G.Chapalgaonkar, Advocate for respondent No.2. ... CORAM : R.K.DESHPANDE, J. Dated : August 5, 2009 PER COURT :- 1. This appeal challenges the judgment and award, dated 20.10.2008, passed by the learned Commissioner for Workmen’s Compensation / Judge, Labour Court, Dhule in Application (WCA) No.54 of 2006, granting compensation of Rs. 50,400/- to respondent No.1 / claimant for having suffered the permanent disability, in an accident occurred on 3.3.2006. 2 2. In respect of the same accident, First Appeal No.76 of 2009 was filed by Driver of the tractor (MH-18-T-3478) and trolley (MH-18-T-3479). The facts in both the cases are similar. Said appeal has been dismissed and therefore, instant appeal can be disposed of by giving brief reasons. 3. This Court, on 13.1.2009, framed the following substantial questions of law, which are reproduced herein below :- “XIX. In absence of any documentary evidence the Court below wrongly come to the conclusion that claimant sustain 30% permanent disability and lost 25% earning capacity. The evidence of Dr. suggests otherwise, that claimant can do his work. XX. The Court below failed to consider that the injury certificate issued by the PW 2 is exorbitant. The evidence of PW1 and 2 is contradictory to each other on the material points. As such conclusion drawn by the Court below about the disabilities and earning is incorrect and illegal.” 4. So far ground No.1 is concerned, the issue has been answered by holding that respondent No.1 was getting salary to the extent of Rs.1500/- per month as a labourer. This finding is based upon the evidence of claimant / respondent No.1. So far second question is concerned, the finding is also recorded on the basis of the evidence of PW 2 Dr.Charudatta and PW 3 Dr.Parvez. Same has been discussed in paragraph Nos.42 and 43 of the judgment. The trial Court has accepted the evidence and has held that the disability certificate to the extent of 70 per cent, produced on record at Exhibit U/29 establishes the permanent disability and loss to the extent of 100 per cent of the earning capacity. So far as liability of the insurance company is concerned, it was held that the 3 vehicle was being used for the purpose other than the purpose for which the permit was issued. It was further held that the driver was not holding the valid license in respect of the transport vehicle and hence the insurance company was not liable to make the payment. 5. The learned counsel for the appellant has relied upon the decision of the apex Court in the case of National Insurance Company Ltd. Vs. Annappa Irappa Nesaria (AIR 2008 SC 1418). It was a case, where the driver was driving the Matador – Van having goods carriage permit and was having a Light Passenger Vehicles license. The apex Court has held that the driver can not be said to not possess the effective license to drive the Light Goods Carriage Vehicle. This is not the case involved here. The driver was having the licence to drive a tractor and tractor was being used as a commercial vehicle for transportation. Said judgment relied upon by the learned counsel for the appellant is of no help to him. 6. Learned counsel for the appellant further relies upon the decision of this Court in the case of Parubai and others Vs. New India Assurance Company [2008 (2) T.A.C.189 (Bom.)], in support of his contention that the insurance policy covered the risk of the labourers traveling the tractor / trolley. He also produced the insurance policy showing that four workers were covered by the policy. The learned counsel urged that the liability should have been fastened upon the insurance company. However, in my view, there is a finding recorded by the Court below that the tractor was being driven in breach of the conditions and therefore, this judgment will not make a difference. 7. In view of the aforesaid discussion, no substantial question of law 4 arises in the present case also. The same, therefore, requires to be dismissed. 8. In the result, the appeal stands dismissed. No order as to costs. The appellant has already deposited the amount before the Court below. Respondent No.1 shall be at liberty to move the Commissioner for Workmen’s Compensation for withdrawal of the said amount. In view of the fact that the appeal itself has been disposed of finally, Civil Application No.361 of 2009 and Civil Application (St) No.16453 of 2009, do not survive and accordingly stand disposed of, with no order as to costs. (R.K.DESHPANDE,J.) ... akl