FA/4972/2006 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 4972 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE H.B.ANTANI ========================================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= = NEW INDIA ASSURANCE CO LTD. Versus SOMABHAI NARANBHAI TADVI & ANOTHER ========================================================= = Appearance : MS LILU K BHAYA for Appellant. NONE FOR RESPONDENTS through served. ========================================================= = CORAM : HONOURABLE MR.JUSTICE H.B.ANTANI Date : 02/04/2008 ORAL JUDGMENT FA/4972/2006 2/4 JUDGMENT This appeal preferred under section 30 of the Workmen's Compensation Act, 1923 [hereinafter referred to as the Act] is directed against the judgment and order dated 24.11.2004 passed by the learned Commissioner for Workmen's Compensation, Bharuch in W.C.A. No. 15 of 2000 whereby the learned Commissioner has awarded an amount of Rs.1,20,842-00 as compensation to respondent No.1 workman and directed the appellant, the New India Assurance Co. Limited, to pay the remaining amount of Rs.40,260-00 within 30 days from the date of the order. The appellant has challenged the impugned order contending interalia that the evidence given by Dr. Kusumben Niranjan Soni, Exh.30, was not taken into consideration by the learned Commissioner while awarding the amount of compensation of Rs.40,260-00 to respondent No.1. Learned Commissioner has also not appreciated the cross-examination of Dr. Kusumben Niranjan Soni who is considered a medical expert and an Ophthalmologist, who has categorically deposed in her testimony that the left eye of respondent No.1 was normal. The learned Commissioner has committed an error in coming to the conclusion that the appellant is liable to pay an amount to the tune of Rs.40,260/- for 20% disability of the left eye. In view of the aforesaid facts and circumstances, learned counsel for the appellant submitted that the order awarding compensation to the extent of 20% disability of the left eye which is awarded to respondent No.1 requires to be quashed and set aside. Learned counsel has placed reliance on the deposition adduced by Dr. Ashok Parmanand Chandani, Exh. 21, and the deposition of Dr. Kusumben Niranjan Soni, Exh.30 in support of the contention that the left eye of respondent No.1 was FA/4972/2006 3/4 JUDGMENT normal and the vision has deteriorated because of inherent defect in the left eye or because of Diabetics or Blood Pressure. The learned counsel has also relied upon the medical certificate issued by Smt. Jayaben Modi Hospital dated 02.02.2000 wherein, in the clinical history, it has been stated that the injury was caused to the right eye and damage to the left eye has not been mentioned in the said certificate. The certificate issued by Thadhani Eye Hospital dated 08.02.2000 is also significant as it also does not mention about the injuries to the left eye of respondent No.1. Thus, the learned advocate submitted that considering the evidence on record, the amount of compensation which was given to the extent of Rs.40,260.- for damage / deterioration caused to the left eye requires to be quashed and set aside. Though served, the respondents have not appeared in the matter. Heard learned advocate Ms. Lulu K. Bhaya and perused the records. I have also taken into consideration the deposition adduced by both the sides before the learned Commissioner. The deposition adduced by Dr. Ashok Parmanand Chandani, Exh.21 makes it abundantly clear that the certificate dated 08.02.2000 which was given by him to respondent No.1 was in respect of the right eye and he has not mentioned in the certificate about damage / deterioration to the left eye of respondent No.1. The deposition adduced by Dr. Kusumben Niranjan Soni, Exh.30, is also perused by me. In her deposition, she has stated that respondent No.1 sustained injuries in the right eye and damage which was caused to the left eye might be FA/4972/2006 4/4 JUDGMENT caused due to some retinal problem or any other disease. Even the certificate given by Smt. Jayaben Modi Hospital to respondent No.1 discloses in the clinical history that the right eye of the appellant was damaged. It is not mentioned in the certificate that respondent No.1 also sustained damage or deterioration in the left eye. In view of the aforesaid deposition and the certificates which are produced on record of the case, the assessment of disability to the extent of 20% and award of Rs.40,260/- to respondent No.1 requires to be quashed and set aside as no damage was caused to the left eye because of the injuries sustained by respondent No.1 in the accident. For the foregoing reasons, the order of assessment of disability to the extent of 20% and award of Rs.40,260/- is hereby quashed and set aside. The appeal is allowed to the aforesaid extent only. There shall be no order as to costs. The appellant has deposited the amount of Rs.40,260/- in the Labour Court, Bharuch at the time of preferring the appeal. The said amount is ordered to be refunded to the appellant. mathew [H.B.ANTANI, J.]