1 FA 289.2010 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 289 OF 2010 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Mr. A.S.Usmanpurkar,Advocates for the appellant. .......................... CORAM : S.V. GANGAPURWALA, J. DATE : 17/03/2011 PER COURT : 1. The present appellant had filed claim petition before the Commissioner, Workmen’s Compensation for grant of compensation on account of the disablement, which he suffered in an accident which was caused during the course and out of an employment. The Commissioner, Workmen’s compensation, Hingoli dismissed the petition on the ground that the petitioner could not prove that he suffered 100 % loss of earning capacity, though he came to the conclusion that the accident took place during the course of employment and the petitioner was the driver on the said car on monthly salary of Rs. 4,000/- per month. The claimant has assailed the said Judgment in the present Appeal. 2 FA 289.2010 2. Mr. Usmanpurkar, the learned counsel for the appellant submits that the disability certificate was admitted by the Insurance Company. In view of the fact that the disability certificate was admitted by the Insurance Company, the claimant did not lead any evidence. As per the said certificate, there was an injury to the knee of the left leg of the appellant. This fact itself is sufficient to infer that the appellant would not be in a position to perform his duty as a driver and as such the Court below should not have rejected the claim petition. In alternate, the learned counsel submits that the matter be remitted back to the Commissioner to afford an opportunity to the appellant to adduce necessary evidence to prove the loss of earning capacity. 3. Per contra, Mr. S.G. Chapalgaonkar, the learned counsel for the Insurance Company submits that the appellant was given ample opportunity. He, on his own volition, did not adduce evidence of Doctor to prove the loss of earning capacity. The admission of disability certificate would not ipso-facto prove 100 % loss of earning capacity. According to the learned counsel, the Commissioner has arrived at proper conclusion and no interference is called for. 3 FA 289.2010 4. With the assistance of the learned counsel, I have gone through the Judgments. 5. It is a fact that the present appellant had applied for witness summons summoning the Doctor for evidence and even had paid the process fee. But, on the returnable date, the Insurance Company admitted the disability certificate and as such the counsel for the appellant thought that the evidence of the Doctor would not be necessary. 6. Even an inference can be drawn from the nature of the injury sustained about the economic loss, but it would not be sufficient for the Court to come to the conclusion about 100 % loss of earning capacity and the extent of the period up to which the appellant would not be in a position to resume his duty. 100 % loss of earning capacity could have been proved by the medical evidence. 7. The Workmen’s Compensation Act is a social welfare legislation meant to provide succor to the claimants. Under the mis-conception that the disability certificate was admitted by the Insurance Company, the appellant did not lead the evidence of Doctor. Having found that the evidence of the Doctor would be necessary, I feel it appropriate to grant one opportunity to the appellant to adduce 4 FA 289.2010 evidence of Doctor concerned or any other evidence to prove 100 % loss of earning capacity. 8. In that light of the matter, I relegate the parties to the Commissioner for Workmen’s compensation, Hingoli. The impugned Judgment and Award is set aside with a view to afford an opportunity to the appellant to adduce evidence to prove 100 % loss of earning capacity. The parties shall appear before the Commissioner on 5/4/2011. The Commissioner for Workmen’s Compensation, Hingoli shall decide the said proceedings within the period of six ( 6 ) months thereafter. The findings on other issues are confirmed. No costs. [ S.V. GANGAPURWALA,J. ] KNP/SA 289.2010