1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CIVIL APPLICATION F. NO.1448 OF 2009. IN FIRST APPEAL STAMP NO.7727 OF 2009. SHRI VIJAYKUMAR D. KANAL VS. SHRI RAMKRUSHNA BHAGILE AND ONE. Office Notes, Office Memoranda of Coram appearances, Court's orders or directions Court's or Judge's Orders and Registrar's orders. Shri S. S. Shingane Advocate and Mr. A. S. Kilor, Advocate for the applicant. Coram : A.H. Joshi, J. Dated : 16th July, 2009. 1. Heard. 2. This is an appeal by employer. 3. This Court found it necessary to look into the merits in view that the Respondent who is a workman should not be unnecessarily brought before this Court without scrutinizing the merits of the appeal. 2 4. This Court, therefore, called upon the learned Advocate for the appellant to argue the case on merit. 5. The learned Advocate for the appellant has urged as substantial question of law the point as below:- That the compensation has been awarded without recording a finding as to nexus between the injury, accident and the employment. 6. The above ground has not been taken in appeal, however, learned Advocate for the appellant sought leave to argue, and was allowed to argue. 7. The learned Advocate for the appellant has placed reliance on the various following judgments:- 1. 2006(2) Mh. L. J., Dockendale Shipping and another Vs. Jevanbhai Ramai Tandel. 2. 1992 ACJ 603, Sakinabibi and another v. Gujarat State Road Transport Corporation. 3. 1988 ACJ 184, Managing Director, O.R.T. Co. Ltd. V. S. Rama Mohan Rao. 4. 2008(2) R. A. J., Recent Apex Judgments 569. 5. AIR 2007 Suprme Couert 248, Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvali 3 & Anr. 6. 1987 ACJ 161, Chiman Surakhia Vasva v. Ahmed Musa Ustad and others. 7. AIR 2006 S.C. 1971, Anil Rishi v. Gurbaksh Singh. 8. Heard learned Advocate Mr. S. S. Shingane and Mr. A. S. Kilor and perused Judgment under appeal. 9. Perusal of claim petition reveal following statements :- (a) The applicant was employed by the non- applicant who is a Contractor who was executing the work of minor irrigation dam at Patoda. (b) The work of pitching was going on. (c) Stones fell on his leg and he suffered injury. (d) The witnesses namely Dnaneshwar Tryambak Bhusari, Laxman Gyanba Parhad, Pandurang Vasanta and Murlidhar Sheshrao Hore have witnessed the accident and relieved him from the location. (e) He was firstly taken to the Clinic of Dr. Bhangore at Elhara, and then to the Clinic Dr. V. K. Joshi at Barhanpur. 4 (f) He was hospitalized at Dr. V. K. Joshi at Brhanpur. (g) Steel rod was required to be inserted in his leg. (h) He has suffered permanent disability. 10. The claim petition has been opposed by the applicant hearing by filing the written statement. In the written statement, the applicant has denied everything right from the work of irrigation dam, to the employher employee relationship, and injury, loss of earning, loss of earning capacity etc. 11. The claimant has led evidence by own affidavit, but did not bring any other evidence in support of his testimony of his being employee of the non-applicant. 12. The applicant, it appears, chose to remain absent, and even did not cross examine the claimant. He also did not summon any other witness to support his plea in the manner what soever. 13. In the aforesaid background of no traverse or rebuttal, the Trial Court has allowed the claim. 5 14. Neither of the Judgments support the appellant. On the other hand, view taken in 1987 ACJ 161 is that the Commissioner is not bound to be misled by the smoke of denial created by the employer. Neither of the judgments relied upon by appellant come to the rescue of the appellant. 15. The appeal has no merit. Under this situation, no substantial question of law arises. 16. In the light of above referred discussion, it will be totally unworthy to issue notice on the application for condonation of delay. The application for condonation of delay is, therefore, rejected. JUDGE /Muley/