-1- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION FIRST FIRST FIRST APPEAL NO.2766 OF 2007 APPEAL NO.2766 OF 2007 APPEAL NO.2766 OF 2007 Prabhakar Shidu Mane ...Appellant vs. Vasant Maruti Chavan ...Respondent Mr.Sandesh D. Patil for the Appellant Mr.M.M.Sathaye for the Respondent CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : MARCH 28, 2008. : MARCH 28, 2008. : MARCH 28, 2008. P.C.: P.C.: P.C.: 1. The Appellant has taken an exception to the Judgment and Order dated 13th August 2007 on a claim petition filed by the Respondent under section 10 of the Workmen’s Compensation Act,1923 (hereinafter referred to as the said Act). 2. The case of the Respondent is that he was working as a labourer with the Appellant at the daily wages of Rs.175/-. When the Respondent was working on the site of the construction of the Appellant at Kolhapur, on 12th February 2004 there was an accident. The Respondent was hit by a chain block. The Respondent suffered fracture of his left hand. According to the case of the Respondent, he suffered disability as a result of injury sustained in the accident. 3. The claim made by the Respondent was contested by the Appellant. It was contended that the Respondent was not an -2- employee of the Appellant. The Appellant contended that he was a social worker. After he came to know about the injury sustained by the Respondent, he admitted the Respondent to Dr.Joshi’s hospital. 4. The claim petition was partly allowed by the impugned Judgment and order dated 13th August 2007. The learned Commissioner held that the Appellant was liable to pay compensation of Rs.26,419/- with interest thereon at the rate of 6% p.a. 5. The Advocate for the Appellant submitted that there was absolutely no evidence adduced by the Respondent to show that he was an employee of the Appellant. He submitted that to prove the alleged disability, the Respondent has not examined any Doctor or Medical Practitioner. It was contended that without there being any basis, the learned Commissioner accepted the case made out by the Respondent that the Respondent suffered permanent partial disability to the extent of 8%. He placed reliance on the decision of this Court in case of The New India Assurance Company Ltd. Vs. Suresh Pandurang Shinde @ Patil [(2006) 2 All M.R. page 615] and submitted that in absence of evidence of the Medical Practitioner, the case made out by the Respondent regarding disability ought not to have been accepted. He submitted that the burden was on the Respondent to prove that he was an -3- employee of the Appellant. He submitted that even the quantification of the compensation is erroneous. 6. I have carefully considered the submissions. The Appeal is preferred under sub section 1 of Section 30 of the said Act. Therefore, the Appeal is maintainable only on a substantial question of law. 7. It must be stated here that the Appellant has not stepped into witness box. The Appellant examined two witnesses who denied that the Respondent was injured on 12th February 2004. The said witnesses stated that they were not aware as to how the Respondent suffered fracture. The learned Commissioner observed that both the witnesses were residents of a small village where the Respondent was residing and that both of them knew the Appellant and the Respondent. The learned Commissioner has held that it was inconceivable that the said witnesses were not aware as to how the Respondent suffered fracture. The learned Judge has disbelieved the case made out by the said witnesses. The reasons recorded by the learned Judge cannot be faulted with. It must be also noted here that the Appellant did not step into witness box to deny that the Respondent was his employee. The medical certificates issued by the civil surgeon showing the disability to the extent of 8% has been placed on record. The said certificate of disability was issued by a Civil Surgeon who is the Government -4- Officer and that is the reason why the learned Commissioner has accepted the said certificate and has read the same in the evidence. 8. The decision of the learned Single Judge of this Court in case of New India Assurance Company Ltd. (supra) does not lay down as an absolute proposition of law that the medical certificate placed on record before the learned Commissioner cannot be read in evidence unless the Medical Practitioner is examined as a witness. It must be noted here that the learned Commissioner while dealing with the claim under section 10 of the said Act is not bound by the strict Rules of evidence. 9. As far as employer-employee relationship is concerned, the learned Judge was justified in drawing an adverse inference on account of the failure of the Appellant to enter into witness box. The learned Commissioner has taken the daily wages at the rate of Rs.90/- instead of Rs.175/-. Permanent partial disability is taken at 8%. Thereafter, the compensation of Rs.26,419/- is arrived at. Interest granted is only at the rate of 6% p.a. In view of the findings recorded by the learned Commissioner, no substantial question of law arises. Appeal is dismissed with no order as to costs. JUDGE JUDGE JUDGE