(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. FIRST APPEAL NO. 3219 OF 2008 National Insurance Company Limited, Through its Divisional Manager, .. Appellant Hazari Chambers, Station Road, (Original Aurangabad. respondent no.2) versus 1. Santosh s/o. Narayanrao Ambhore, Age : 30 years, Occupation : Jeep Driver, R/o. Morandi Mohalla, Old Jalna, Taluka and District : Jalna. 2. Harikishan s/o. Meghraj Bharajwal, .. Respondents Age : 47 years, (No.1 - Original Occupation : Business & Owner of applicant Jeep No. MH-21/A-8944, & R/o. In front of Amarchhaya Talkies, No.2 - Original R.P. Road Office, Jalna, respondent no.1) Taluka and District : Jalna. ....................... Mr. S.S. Chapalgaonkar, Advocate, holding for Mr. S.P. Chapalgaonkar, Advocate, for the appellant. Respondent no.1 served (Absent). Mr. A.S. Barlota, Advocate, with Mr. D.M. Shinde, Advocate, for respondent no.2. (2) ........................ CORAM : K.U. CHANDIWAL, J. DATE : 12TH APRIL 2010 COURT'S ORDER : 1. Heard Mr. S.S. Chapalgaonkar, learned Counsel appearing for the appellant, extensively. 2. The claimant, a driver, had accident, claimed to have suffered injury to the extent of 50 %. The learned Judge, on its own accord, on 27-11-2002, directed examination of the claimant by the Medical Officer / Orthopaedic Surgeon at Government Medical College & Hospital, Aurangabad. Consequent upon such directions, the learned Professor and Head of the Department of Orthopaedics examined the claimant and a certificate dated 6-1-2003 came to be issued certifying disability to the claimant to the extent of 20 % as there was shorting of 1 inch and there was old fracture of shaft femur left side. The claimant is found to be 21 years at the time of accident. The learned Judge applied the factor 222.71 considering the provisions of Section 4(1)(b) of the Workmen's Compensation Act, 1923 (For short, "the said Act"). (3) 3. Mr. S.S. Chapalgaonkar, learned Counsel appearing for the applicant, submits, the provisions of Section 4(1)(b) of the said Act would not be applicable, it should have been Section 4(1)(c)(ii) and consequently, according to him, non- certification by the Medical Officer about extent of loss of income will be fatal to the claimant. 4. I do not agree to the submission, as the claimant was examined at the instance of the court and the Medical Officer has certified such injuries to be 20 %. It need not reflect that the assessment should be indicated about the loss as it is in terms of Section 4(1)(b) of the said Act. 5. The other objection of the learned Counsel appearing for the appellant is, want of notice of claim by virtue of Section 10 of the said Act. However, though Section 10(1) starts with "No claim for compensation", however, amendment shown as 73 and 74 provides dilution to the mandate and the proviso allows that for want or any defect or irregularity in the notice, there shall not be a bar to entertaining of a claim. In this scenario of the matter, though in the present case, there is no notice, however, its rigour is diluted by virtue of above referred amendment. 6. Though the learned Counsel appearing for the (4) appellant has contended that the amount of Rs. 90,000/- is at a higher pedestal and not in tune with the factor, however, I find that the learned Judge has considered the mental trauma as the claimant has undergone 20 % disability, certified by the Medical Officer of the Government Medical College, and reached to the final assessment of Rs. 90,000/-. No mistake, apparently, would be surfaced. The objection, therefore, is not sustainable. 7. The First Appeal lacks merit and it is accordingly dismissed. ( K.U. CHANDIWAL ) JUDGE ......................... bgp/fa3219