1 fa451/94 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 451 OF 1994 WITH CIVIL APPLICATION NO.3682 OF 1994 National Insurance Company Ltd., having its registered office at 3, Middleton Street, Calcutta 700071 and having Branch Office at Aurangabad by Branch Manager. ...APPELLANT VERSUS 1. Mohamad Rafik s/o Chandpasha Bagwan, Age: 20 years, Occ: Nil, R/o. Vadhavana, Tq. Udgir, Dist. Latur. 2. Shaikh Mahemud s/o Allalabakshlal deceased through L.Rs. 2-1. Fatrubee w/o Shaikh Mahemood, Age: Major (widow), 2-2. Wahab Shaikh Mahemood, Age: Major, 2-3. Ilahi Shaikh Mahemood, Age: Major, 2-4. Noor Shaikh Mahemood, Age: Major, 2-5. Asifa d/o Shaikh Mahemood, Age: Major, All R/o. Bagwan Galli, Latur. ...RESPONDENTS 2 fa451/94 ... Shri. S.L. Kulkarni, Advocate for appellant. None for the respondents. ... CORAM: K.K. TATED, J. DATE : 29TH NOVEMBER, 2010 ORAL JUDGMENT : 1. Heard the learned Counsel for the appellant. Though the respondents are duly served, no one appeared on their behalf. 2. Present appeal is preferred by original respondent No.2 Insurance Company against the judgment and award dated 20-05-1994 passed by the learned Commissioner for Workmen's Compensation Act and Judge, Labour Court, Latur in W.C.A. No.3 of 1994. The Commissioner awarded a sum of Rs.67,200/- to respondent No.1 original claimant. A FEW FACTS OF THE MATTER ARE AS UNDER : 3. Respondent No.1 original claimant filed claim petition under Workmen's Compensation Act on 3 fa451/94 20-01-1994 claiming a sum of Rs.1,00,000/- alongwith interest and penalty. It is the case of respondent No. 1 original claimant that he was engaged by respondent No.2 as cleaner on his goods truck. He used to get consolidated salary of Rs.600/-per month. In addition to salary, he used to get Rs.20/- per day as Bhatta. 4. On 19-03-1993 respondent No.1 alongwith respondent No.2 proceeded to Latur as a cleaner on respondent No.2's truck bearing No. MWP-7570. Respondent No.2 stopped truck by the side of the road in front of Shahu College, Latur. There was a slope and therefore, respondent No. 2 directed respondent No.1 to keep stone at the left back tyre of the truck so that the truck may not proceed ahead. The claimant kept stone in front of left tyre of the truck. It was about 10-30 a.m. After some time, respondent No.2 returned back from the market and they were about to proceed again. At that time, respondent No. 2 was at driver seat. He started truck and directed 4 fa451/94 respondent No. 1 original claimant to remove the stone which was kept at the left back tyre of the truck. For removing the said stone, respondent No. 1 bent down and at the moment of removing said stone, the truck started. His right leg crushed under the back tyre. Immediately, respondent No. 2 took respondent No. 1 to the hospital of Dr. Agroya. Respondent No.1's right leg was operated there and steel rod was inserted therein. He was hospitalized about two months. 5. Thereafter, he issued a legal notice dated 23-12-1993 to the appellant and respondent No.2 calling upon them to pay compensation to the in the sum of Rs.1,00,000/-. He sent the said legal notice to the appellant as well as respondent No.2 by Registered Post A.D and same were duly served on them. In spite of the said legal notice, neither the appellant nor respondent No. 2 made payment of compensation and therefore, he preferred claim petition before the learned Commissioner for Workmen's Compensation Act, 5 fa451/94 Latur. 6. In the said claim petition, the Insurance Company filed Written Statement dated 22-03-1994 and denied its responsibility to make the payment. In similar way, respondent No. 2 truck owner also filed his Written Statement dated 29-03-1994 and opposed the claim against him. 7. Considering the evidence on record and relevant documents, the learned Commissioner passed the impugned judgment and award dated 20-05-1994 holding that claimant respondent No.1 is entitled to compensation in the sum of Rs.67,200/-. 8. I heard the learned Counsel appearing on behalf of the appellant - Insurance Company at length. I have gone through the Record and Proceedings of the present case. 9. The learned Counsel appearing on behalf 6 fa451/94 of the appellant Insurance Company contends that the judgment and award passed by the learned Commissioner dated 20-05-1994 is against the justice, equity and good conscience and same is liable to be set aside. He further submits that the learned Commissioner erred in coming to the conclusion that respondent No.1 is entitled to compensation to the tune of Rs.67,200/-. He further submits that the learned Commissioner ought to have considered the medical certificate issued by Doctor who treated respondent No.1 and certified disability only to the extent of 35% at the time of awarding compensation on higher side. He submits that when the medical certificate produced and Doctor who treated the complainant, has stated on oath as regards the percentage of disability, which is binding on the complainant. He further submits that the learned Commissioner erred in treating the disability as 100% and awarded compensation. He further submits that the learned Commissioner cannot brush aside documentary evidence i.e. medical certificate and 7 fa451/94 statement on oath given by Doctor who treated the patient for coming to the conclusion that respondent No. 1 - original claimant suffered 100% earning disability. He further submits that respondent No.1 - original claimant failed to produce documentary evidence on record to prove his monthly salary as stated in the complaint which is admitted by the owner is the only fact taken into consideration by the learned Commissioner for awarding compensation. On these submissions, the learned Counsel appearing on behalf of the appellant submits that the judgment and award passed by the learned Commissioner is liable to be set aside. 10. The point involved in the present appeal is: Whether the learned Commissioner for Workmen's Compensation Act awarded enhanced compensation to respondent No.1 - original claimant? 11. In the present case, respondent No.1 8 fa451/94 original claimant was working as cleaner with respondent No.2 truck owner. At the time of accident, his age was 20 years. In accident, he completely lost his right leg. The accident took place on 19-03-1993 and on the same day, he was admitted in the hospital of Dr. Agroya. Thereafter, he was discharged on 15-05-1993 i.e. after two months. This itself shows the gravity of the accident. When a person has to remain as indoor patient, he has to incur expenses on medicines, Doctor charges etc. In the present case, respondent No.1 original claimant produced on record hospital bills, medical bills alongwith list of documents at Exhibit-U-7. Doctor's receipt dated 17-02-1994 shows that he charged Rs.12,200/- for his treatment. The medical bills produced by respondent No.1 on record show total expenses Rs.1671/- approximately. Respondent No.1 also produced Doctor's certificate showing disability of 35%. He specifically stated in his evidence at Exhibit-4 that due to the accident, now it is not possible for him to work as a 9 fa451/94 cleaner nor did he get any other employment thereafter. His salary was Rs.600/- per month and he used to get Rs.20/- per day as allowance. 12. To prove his medical certificate, he examined Dr. Jagdish Agroya at Exhibit-7, who issued the said certificate. Doctor in his evidence specifically state that in future also, respondent No.1 cannot walk without crutches. This itself shows that respondent No.1 cannot work as a cleaner in future. He also produced documentary evidence to show his salary and daily allowance, which he used to get. 13. The learned Commissioner calculated compensation considering the age of respondent No. 1 on the basis of Schedule-IV of the Workmen's Compensation Act. In my opinion, considering the age of respondent No.1 and his income, I do not find that the learned Commissioner has awarded compensation on higher side. Though respondent No. 1 brought on record documentary evidence about the 10 fa451/94 amount spent by him for his treatment, the Commissioner has not awarded a single pai towards that amount. 14. Considering these facts, I do not find any substance in the present appeal and same is dismissed. No order as to costs. 15. In the light of the dismissal of the first appeal, nothing survives for consideration in the Civil Application, same is dismissed accordingly. sd/- [K.K. TATED, J.] sut/NOV10/fa451.94