FA/3313/2005 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 3313 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ========================================= = 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 GOPAL RAMA YADAV & ANR ========================================= = Appearance : MR HASMUKH THAKKER for Appellant:1 MR SANDEEP N BHATT for Defendants:1-2 ========================================= = CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 29/08/2008 ORAL JUDGMENT 1. By way of this appeal, the appellant-Insurance company has challenged the judgment and award dated 16.07.2005 passed by the learned Commissioner, Workmen Compensation, Labour Court, Gandhidham-Kutchchh in Workman Compensation Application (NF) No.8 of 2002 whereby the FA/3313/2005 2/5 JUDGMENT learned Commissioner, Gandhidham-Kutchchh has awarded Rs.4,78,560/- together with amount of interest thereon @ 9% from the date of the accident till the date of realization, Rs.500/- towards costs of the application, Rs.600/- towards court fee stamp and Rs.2500/- towards the costs of the treatment, as also Rs.7500/- towards medical expenses. 2. The facts in brief, as emerging from record, are as under: 2.1 The respondent No.1-original claimant Gopal Rama Yadav was working with respondent No.2- Original Opponent No.1 as a Driver at salary of Rs.4,000/- per month. He was given miscellaneous amount of Rs.70/- also. 2.2 On 20.2.2002, the respondent No.1, while on duty driving a truck owned by respondent No.2 bearing its registration number GJ-12- T- 7712, accident had taken place, wherein the respondent No.1 herein sustained severe injuries and fracture in right hand and in the rib in the chest. On account of these injuries, the respondent No.1 received permanent disability on account of which he could not drive any vehicle and lost his permanent source of income. The respondent No.1 thereafter preferred application for compensation amount. The learned Workmen's Compensation Commissioner, Labour Court, Gandhidham-Kutchchh vide his judgment and order dated 16th July, 2005 awarded Rs.4,78,560/- together with interest thereon @ 9% from the date of the accident till the date of realization, Rs.500/- towards costs of application, Rs.600/- towards court fees stamp and Rs.2500/- towards the costs of the treatment and Rs.7500/- towards medical expenses. The learned Commissioner, Gandhidham-Kutchh also directed the respondent No.2 herein to pay an amount of Rs.1,000/- to FA/3313/2005 3/5 JUDGMENT respondent No.1 as penalty within 30 days from the receipt of this order. 2.3 Being aggrieved by and dissatisfied with the judgment and award passed by the learned Workmen Compensation Commissioner, Gandhidham-Kutchchh, the appellant herein preferred the present appeal. 3. Heard Mr.Hashmukh Thakkar, learned Advocate for Appellant- Insurance Company. He has merely contended that 100% permanent disability is wrongly believed by the learned Workmen Compensation Commissioner, Gandhidham- Kutchchh. He has also submitted that the say of respondent No.1 as regards his salary of Rs.4,000/- p.m. is also wrongly believed by the learned Commissioner. The counsel for the appellant further contended that Rs.2500/- towards expenses of treatment is also wrongly imposed and Rs.7500/- which was added by writing as medical expenses is wrongly believed by the learned Workmen Compensation Commissioner, Gandhidham-Kutchchh, and, therefore, appeal is required to be allowed. Mr.Thakkar, learned counsel for the appellant has also submitted that though there is a 30% permanent disability, tribunal has awarded 100% permanent disability. The learned Advocate for the appellant also submitted that the amount imposed towards treatment Rs.2500/- and medical expenses i.e. Rs.7500/- is not just and proper as the same is imposed separately. 4. The learned Advocate for the respondent No.1 has submitted that the learned Workmen Compensation Commissioner, Gandhidham-Kutchchh, has rightly awarded the compensation amount observing the age of respondent No.1 and the salary which was being paid to the respondent No.1. The learned FA/3313/2005 4/5 JUDGMENT Advocate has further submitted that the learned Commissioner, Gandhidham-Kutchchh, relying upon settled legal proposition of law, has rightly come to the conclusion that in default of making payment of compensation within a month by the employer, under the Workmen's Compensation Act, the insurance company is also liable to pay compensation amount and the interest thereon. The learned Advocate has submitted that the respondent No.1 herein has produced all necessary documentary evidences in support of claim for amount of compensation relying on which the learned Commissioner, Gandhidham-Kutchh has rightly awarded the compensation and the interest thereon. The learned Advocate has also submitted that relying on medical evidences and the deposition of the Doctor, which are before this Court, the learned Commissioner, Gandhidham-Kutchchh has rightly decided the question of permanent disability caused to the respondent No.1 on account of an accident. 5. I have gone through the documents produced and the authorities adduced by the learned Counsel for both the sides. As regards question of 100% permanent disability, relying on medical evidence and the deposition of the concerned Doctor at Exh.20, who has deposed that there is 100% disability, the contention of the learned Advocate for the appellant Insurance Company is not accepted. Accordingly the view taken by the authority is just and proper. Other contention regarding salary of respondent No.1 i.e. Rs.4,000/- is also not accepted since no cross has been put to the witness regarding the same in the witness box. Therefore, since there are no material and ordal evidence as well as the same is not disputed by either Insurance Company or Employer, the contention made by the learned Advocate for the appellant that the salary of the respondent No.1 must be more or less upto Rs.2,000/- is not accepted. In the premises, the income believed by the FA/3313/2005 5/5 JUDGMENT authority is also just and proper. No material is called for to interfere with the same. Insofar as contentions regarding medical expenses and treatment are concerned, the Court is of the opinion that the same has wrongly been imposed by the learned Commissioner and hence contention raised by the learned Advocate for the appellant regarding the medical expenses and treatment is allowed. 6. With the above observations, appeal is partly allowed. The appellant herein will not require to make any payment towards medical expenses and treatment as well as the amount of penalty. It will be open for the claimant to recover the amount of penalty from the employer. 7. The appeal is allowed to the aforesaid extent. (K.S.JHAVERI, J.) Amit/-