1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL NO.1558 OF 2009 WITH CIVIL APPLICATION NO. 12473 OF 2008 1. Executive Enginner, Z. P. Beed. 2. Deputy Engineer, M.I. Div. Z.P. Beed. ....Appellants. Versus 1. Pushpabai B. Babasaheb Divate, Age 50 yrs., Occu. Labour, R/o. Hingewadi, Tq. Shirur (Kasar), Dist. Beed. 2. State of Maharashtra, Through Collector, Collector Office, Nagar Road, Beed. 3. Tahsildar, Tahsil Office, Shirur (Kasar) Dist. Beed. ....Respondents. Mr. Kailash More, Advocate for appellants. Mr. D.R. Jaybhar, Advocate for respondent No. 1. Mr. S.D. Kaldate, A.G.P. for respondent Nos. 2 and 3. CORAM : K.U. CHANDIWAL J. DATE : 4th May, 2010 2 ORAL JUDGMENT : 1. Heard. Admit. Heard finally. Record perused by the counsel. The employer questions the award in terms of Workmen Compensation Act recorded by the learned Civil Judge, Senior Division, Beed dated 29.3.2008 for an amount of Rs. 1,92,893/-. 2. The following substantial question of law emerge between the parties :- (1) Whether the learned Judge was justified in treating the loss of income to be 100% in spite of injury certificate demonstrating to be 40% and in the absence of evidence by qualified Medical Officer that there is 100% loss of earning capacity, to award the amount as above ? My answer is, the learned Judge certainly was on surmise in calculating and erred, the award require interference. The claimant is eligible for Rs. 77,157/- with interest at the rate of 12% from the date of petition for following reasons. 3. The employer raised objection about the employment of the claimant with it. However, it has been dispelled by virtue of production of attendance record and its proof. The diary produced on record, illustrate presence of the claimant tobe a casual labour with the employer. The stand taken by the appellant employer, consequently, is 3 difficult to digest. 4. Then comes the permanent disability. Dr. Shinde at Beed has examined the claimant Pushpabai and found fracture tibia and fibula right with crush injury to right leg. The compound fracture by malualma right ankle on X-ray fracture right tibia disability was in permanent nature and up to 40%. This was certified by the medical board, duly signed by the witness and the member ( Exh. 40 ). The Medical Officer did not vouch, by virtue of 40% disability, there could be loss of 100% in the earning capacity of the claimant. Nothing of this mandatory compliance is carved out. 5. In spite of these odds on the part of claimant, the fact remains, the claimant having urged of drawing Rs. 100/- per day. Requisite calculations are made by the learned Judge in paragraph No. 16 Rs. 70/- per day as earning and treating the age of the claimant to be 50 years, and by applying the factor of 153.09 with multiplication of 60%, the figure reached is Rs. 1,92,893/- for accident dated 22.1.2005. However, in the light of the very certificate referred above and in the absence of cogent and coherent evidence to illustrate loss of 100% earning capacity of the claimant, having not been so done by the qualified Medical Practitioner, the claimant would be entitled to the amount of Rs. 77,157/- as 40% of the loss. 4 6. The appeal is partly allowed. The award is modified from Rs. 1,92,893/- to Rs. 77,157/- with interest at the rate of 12%. No costs. The excess amount deposited by the appellant at the time of lodging the appeal be remitted to it. Civil Application disposed of. [ K.U. CHANDIWAL J.] ssc/fa1558.09