1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.857 OF 2009 Shankar s/o Namdeo Degaonkar - APPELLANT VERSUS 1) Shaikh Kausar Ahmed Shaikh Saheb and Another. - RESPONDENTS ***** Mr.PS Agrawal, Advocate for Appellant; Mr.RR Shaikh, Advocate for Respondent no.1; Mr.VR Mundada, Advocate for Respondent no.2. ----- CORAM : K.U.CHANDIWAL, J. DATE : 20th January, 2010. PER COURT : 1) Heard learned Counsel for the parties extensively. 2) The matter is finally heard at admission stage. Record and proceedings being called, perused by the respective counsel. 3) The appellant/claimant, working as a driver on a truck belonging to Respondent no.1, 2 insured with respondent no.2, met with an accident. He claimed to have been hospitalized and suffered 25% of disablement, for which he led evidence of Medical Officer - Dr. Bhagwan Pundge. The Medical Officer has also issued a Certificate of disablement at Exh.35. The learned Judge, on assessing the evidence, reached to the conclusion that the nature of injuries suffered by the appellant/original claimant, did not demonstrate total disablement of earning capacity and he assessed the same to be 25%, though the wages calculation is effected at 50%. This order is subject of criticism by the appellant. 4) The learned Counsel for the appellant urged, since there was stiffness to the legs of the appellant, his capacity to drive the vehicle, avocation, on which he was basically landing, has come to a stand-still and hence the learned Judge should have considered it as 100% loss of earning. The Counsel submits that the loss of earning to be 100% is substantially established by evidence of the Medical Officer, Dr. Bhagwan Pundge, coupled with the Certificate, Exh.35 and, therefore, no other independent witness or evidence was warranted. 5) The learned counsel, in order to stress his point, has relied on the judgment of this 3 Court in the matter of Arjun Gangappa Kore Vs. Nirmal Bhagchand Bothra - 2004 (6) Bom.C.R., 630. 6) The Counsel for the owner/Respondent no. 1 submits that there is no discontinuation or severance of the occupation as a driver of the appellant/claimant, as is reflected in the very Claim Petition before the learned Judge. 7) The Counsel for Respondent no. 2/insurance company contends, there is no infirmity in the order under challenge. The physical unfitness/disability of the driver/appellant was to be legally proved, which according to the Counsel, is not in terms of section 4(c)(ii) and Explanation (ii) in particular. 8) The factual matrix of the appellant herein suffering accident on 9.2.2008 during the course of employment, is not in controversy. The appellant claimed that he has suffered injuries and was hospitalized for a period from 10.2.2008 to 19.4.2008. However, before the Court, there is no such evidence to indicate such prolonged admission in the hospital. The evidence referred above display that in the said accident the appellant suffered fracture of tibia and fibula on right leg, the medical officer found, it was 4 malunited. He also found fracture of shaft femur on left thigh. He observed stiffness in moving of right knee-joint and left hip joint. According to him, the patient was facing disability to the extent of 25%. He asserts, the patient cannot drive a vehicle due to fracture and stiffness in the legs. In the cross- examination, the Medical Officer, in unequivocal terms, accepted, he cannot state exact loss of earning capacity faced by the appellant herein. The Disability Certificate is not issued in the status of Member of Medical Board/Committee. He disputed, that the loss of earning capacity and the permanent disability are quite different and its counting mode is also different. 9) In the case of a workman the loss of earning capacity is normally co-existing to the loss of physical capacity, depending on nature of injuries suffered by the employee, the workman. In the case of amputation of a person, who is required to operate/ply a vehicle, naturally it will be 100% loss of earning capacity. 10) Schedule-I and Schedule-II under the Workmen's Compensation Act, 1923, ordain different contingencies of reaching a finding as to the disablement. The nature of injuries referred above is apparently non-scheduled 5 injuries, for which, recourse will have to be taken to Section 4(1)(c)(ii) and, particularly Explanation (ii) appended thereto. Explanation (II) reverted back, which contemplates, for the purposes of assessing loss of earning capacity for sub-clause (ii) of Clause (C) of Section 4; a qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in relation to different injuries specified in Schedule-I. I reiterate, there is no injury as specified in Schedule-I of the Act, nor the claimant could prove, Dr.Pundge was a qualified medical officer. 11) The evidence of medical officer demonstrated, there was stiffness to the legs of the appellant herein. He does not say that the entire movements of the appellant are arrested and rendered incapable to drive a vehicle. He could not do so, being not an expert in the field. 12) That apart, the very driving license, which the appellant holds, is still hold good, not yet terminated/cancelled by the appellant, by getting a certification from the competent Transport authorities. The situation is added with mist, when the appellant himself refers before the learned Judge, his avocation to be a 6 driver. 13) There is nothing to demonstrate that the appellant is made totally disabled to pursue his regular activities as a driver. Claimant failed to indicate, he could not bend his legs nor could he bend his foot. The appellant is not left with any shorten leg, as was the case in the matter of Arjun Kore (cited supra). There is no case that the appellant is unable to lift any material. 13) Considering the age pattern of the appellant, and since the services of physio- therapy, required for removing stiffness occasioned to the appellant, and particularly in the matter of fracture to tibia and fibula, can well be attended to/effected with proper medication, it will not be termed or to be determined as 100% disablement. The findings recorded by the learned Judge cannot be said to be erroneous. No interference. The appeal dismissed. 14) The amount deposited before the learned Judge shall be receivable by the appellant as per the Rules. 7 (K.U.CHANDIWAL) JUDGE bdv/fa857.09