1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION FIRST APPEAL NO. 490 OF 2010 & FIRST APPEAL NO. 491 OF 2010 & FIRST APPEAL NO. 493 OF 2010 & FIRST APPEAL NO. 494 OF 2010 & FIRST APPEAL NO. 495 OF 2010 FA NO. 490 OF 2010 New India Assurance Co. Ltd. .. Appellant Vs Mr. Mahesh Shantaram Ghadigaonkar & Anr. .. Respondnents -- FA NO. 491 OF 2010 New India Assurance Co. Ltd. .. Appellant Vs Mr. Balkrishna Ramu Yadav & Anr. .. Respondnents -- FA NO. 493 OF 2010 2 New India Assurance Co. Ltd. .. Appellant Vs Mr. Bisman Jagbandhu Rana & Anr. .. Respondnents -- FA NO. 494 OF 2010 New India Assurance Co. Ltd. .. Appellant Vs Mr. Nimanchal Kathy Rana & Anr. .. Respondnents -- FA NO. 495 OF 2010 New India Assurance Co. Ltd. .. Appellant Vs Mr. Gautam Sletan Rana & Anr. .. Respondnents -- Shri S.S.Vidyarthi, Advocate for the Appellant. Shri T.S.Mendon for Respondent no1. Coram: A.S. Oka,J The date on which the judgement is reserved: 15th October 2010 The date on which the judgement is pronounced: 22nd December 2010 3 Oral Judgment 1. These appeals can be disposed of by a common judgment. By order dated 14th June 2010, this Court directed that the appeals shall be disposed of finally at the stage of admission . 2. There was a work of construction in progress at the construction site of Chinnar building at Khar (W) in Mumbai. While the construction work was in progress on 25th April 2007, a newly constructed water tank admeasuring 8 feet x 30 feet fell down. As a result, 9 workmen were working as Kadia workers at the site sustained serious injuries. There were separate claim petitions for compensation filed under the Workmen’s Compensation Act,1923 (hereinafter referred to as “the said Act”) before the learned Commissioner for the Workmen's Compensation. 3. The claim petitions were filed against M/s Yamuna Constructions and the appellant insurance company. M/s Yamuna Constructions were impleaded as the employers of the claimants. 4 The employers remained absent and did not contest the claim. The appellant filed a written statement and contested the claim. It was contended that there was no relationship of employer and employee between M/s Yamuna Constructions and the claimants. It was contended that the claimants were kadia workers who used to do the work at the site on piece rate basis. It was alleged that the claimants have falsely stated that their salary was Rs. 4000/- per month. It was contended that an attempt was being made by the claimants to exploit insurance company. It was contended that the alleged accident was not reported to the insurance company. It was contended that the insurance policy was a Workmen’s Compensation Policy and therefore, the appellant was not liable to pay penalty and interest. 4. The learned at Commissioner held that the Claimants suffered injuries during the course of their employment. The learned Commissioner came to the conclusion that the claimants have lost their entire earning capacity. Therefore, the learned Commissioner proceeded to grant compensation. However, penalty and interest was not granted to the claimants. 5 5. The learned counsel appearing for the appellant submitted that there was no evidence regarding the existence of employer -employee relationship between the insured and the claimants. He submitted that 100% loss of earning capacity taken by the learned at Commissioner is on the higher side. He submitted that the appellant insurer was not liable to pay compensation as per section 14 of the said Act and the liability to pay compensation was that of the insured. He submitted that after payment of compensation by the insured, the appellant has to pay compensation amount to the insured on the basis of the policy of insurance. The learned counsel submitted that in the present case the employer was not examined to prove the existence of the employer -employee relationship. He submitted that there was no proof of loss of earning capacity in future. He submitted that without their being any specific medical evidence on record to that effect, hundred percent loss of earning capacity has been erroneously taken into consideration by the learned Commissioner. He submitted that the fact that the claimants can perform any other job has not been considered by the Commissioner. The learned counsel appearing for the claimants supported the impugned judgments and orders. 6 6. I have given careful consideration to the submissions. I have perused the record. The present appeal has been preferred under section 30 of the said Act. Hence, the appeal is maintainable only on a substantial question of law. The 1st question raised by the appellant is as regards the liability of the appellant -insurer. In the present case, the appellant is not disputing that on the relevant date, there was a valid Workmen's Compensation Policy taken by the alleged employer. It is true that unlike a case of motor accident, the insurance is not statutory and the liability of the insurer will depend on the contract of insurance. In the present case, in the written statement of the appellant, the existence of contract of insurance is not disputed and what is disputed is the liability to pay interest and penalty. However, under the impugned judgments and orders, neither interest nor penalty has been granted. Hence, liability to pay compensation cannot be disputed by the appellant. 7. The 2nd question involved in these appeals is as regards the employer -employee relationship. Apart from the fact that the employer did not contest the claim petition, the claimants deposed before the learned Commissioner that they were employed with the 7 said employer as kadia workers. They deposed that their salary was of Rs.4000 per month. There is more or less identical cross examination in every case. In case of the claimant in the claim petition subject matter of the First Appeal no. 490 of 2010, there is no serious challenge in the cross-examination to the fact that the claimant was an employee of the employer named in the claim application. Not even a suggestion is given to the claimant that he was not an employee of the said employer. The suggestion given is that he was not getting salary of Rs.4000 per month. There is no suggestion given challenging the case made out by the claimant that he was a kadia worker. In the cross-examination, the claimant has stated that he was doing the work of making a water tank out of cement, bricks and metal. He denied the suggestion that he will be in position to work and do casual work. In view of the nature of the cross-examination , it is not possible to accept the contention of the appellant that the employer employee relationship was not established. 8. That takes me to consideration of the next question re- garding hundred percent loss of earning capacity taken by the learned and Commissioner. The question is whether there was a to- 8 tal disablement within the meaning of section 2(b) of the said Act. In the case of Pratap Narain Singh Deo v. Srinivas Sabata, [(1976) 1 SCC 289], the Apex Court in paragraph 5 of the judgment held thus: “5. The expression “total disablement” has been defined in Section 2(1)(e) of the Act as follows: “(1) ‘total disablement’ means such disable- ment whether of a temporary or permanent nature, as incapacitates workman for all work which he was capable of performing at the time of the accident resulting in such dis- ablement.” It has not been disputed before us that the injury was of such a nature as to cause per- manent disablement to the respondent, and the question for consideration is whether the disablement incapacitated the respondent for all work which he was capable of per- forming at the time of the accident. The Commissioner has examined the question and recorded his finding as follows: “The injured workman in this case is carpen- ter by profession .... By loss of the left hand above the elbow, he has evidently been ren- dered unfit for the work of carpenter as the work of carpentry cannot be done by one hand only.” This is obviously a reasonable and correct finding.” Now going back to the evidence on record of the claim petition 9 subject matter of the First Appeal no.490 of 2010, there is evidence of Dr.Ajgaonkar , a medical practitioner, who described the injuries sustained by the claimant. He stated that the claimant will have difficulty and pain while walking, climbing stairs, squatting, and sitting cross legged. He stated that the claimant will have restriction of movement of hip and hand joints. He stated that the claimant was unable to lift weights. He stated that the claimant will have difficulty in holding and carrying objects by hand. He stated that the claimant was unable to walk without the support of crutches. Based on the injuries, the medical practitioner opined that the claimant cannot do the job of Mason. 9. The percentage of disability stated in the medical certificate is not the only basis on which the Commissioner can determine whether there was a total disablement. In view of the definition of the total disablement under the said Act, if the evidence on record shows that the injuries sustained by a workman has incapacitated the workman for all work which he was capable of performing at the time of accident resulting in such disablement, the same will have to be taken as a total disablement. Therefore, the question whether there is total disablement will have to be 10 decided on the basis of the evidence regarding the nature of the job performed by the injured workman and the effect of the permanent disability suffered by him. In the present case, even in the cross- examination of the claimant, there is no challenge to the fact that he was working as a Mason. In the cross-examination of the medical practitioner, the version of the medical practitioner regarding effect of the injuries such as difficulty in walking, climbing stairs, squatting and sitting as well as difficulty in holding and carrying objects by hand has not been seriously challenged in the cross-examination made by the advocate for the appellant. The medical practitioner opined that with the kind of injuries sustained by the claimant, he will not be in position to do the job of Mason. Thus the disability suffered by him has incapacitated the workmen for the work of Mason which he was capable of performing at the time of accident. The evidence of the claimants as well as the medical practitioner in other cases is no different. In some cases, another medical practitioner Dr.Vinayak D.Joshi has been examined who also opined that the concerned claimant cannot work as a Mason and has lost his hundred percent earning capacity. In the circumstances, the finding of fact recorded by the learned Commissioner is that considering the injuries sustained by the 11 claimant, he has lost his entire earning capacity as Mason. He has taken into consideration the fact that the claimant has to use crutches and there was reduction of movements as well as reduction of sensation. In effect, the finding is that there was a total disablement of the claimants. Considering the evidence of the medical practitioners, it is not possible to find fault with the said finding of fact. The accident occurred in April 2007 on a construction site in the city of Mumbai. Therefore, salary of Rs. 4000 per month cannot be said to be unreasonable or excessive. 10. Hence, it is not possible to interfere with the findings of fact recorded by the learned that the Commissioner. Hence, there is no merit in the appeals and the same are dismissed with no orders as to costs. JUDGE P.T.O. 12 11. After pronouncement of the judgment, on the request made by the learned Advocate for the Appellant, it is directed that the compensation amount shall not be disbursed for a period of eight weeks from today. JUDGE