1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.2204 OF 2008 IN APPLICATION WORKMEN COMPENSATION NO.89 OF 2005 Sharad Gangaram Nichal ....Appellant (Orig.Applicant) vs. 1. Mr.Shantilal Pandurang Bhivare 2. The Orietal Insurance Co.Ltd ....Respondents ========== Mr.S.N.Gawade, advocate for Appellant. Ms.Poonam Mittal,advocate for respondent no.2. Coram : Smt. R.P.SondurBaldota, J. Date : 15thJune 2009 PC :- 1. The appellant who is the victim of a motor vehicle accident has preferred this appeal for enhancement of the compensation awarded to him by the Commissioner for Workmens Compensation, Solapur in Application No.89 of 2005. By the said order, the appellant has been granted compensation of Rs.78,400/- with interest thereon at the rate of 9% p.a. from the date of the application and the amount of medical expenses of Rs.52,171/-. 2. The appellant was working as driver on the jeep bearing 2 registration no.MH-13/F-9709 belonging to respondent no.1. The jeep was insured with respondent no.2 during the relevant period. On 14th September, 2000 the appellant was driving the jeep proceeding from Pune to Mohol. When the jeep was at Varangali pati at about 8.45 a.m. a truck came from opposite direction and dashed against the said jeep. In the accident, the appellant sustained fracture injuries to his right hand shoulder and elbow. He also suffered injuries to his chin. He was brought to the government hospital, Indapur and after the first aid treatement he was shifted to Ashwini Hospital. He was an indoor patient for a month in the hospital. After discharge from the hospital, he took treatment as out door patient. He contends that three months thereafter he was admitted to Sushrut Hospital at Solapur when a rod came to be inserted in his hand. According to the appellant, while he was in Ashwini Hospital, he incurred expenses of Rs.55,000/- towards the medical treatment, Rs.10,000/- towards diet and conveyance. He also claims to have spent Rs.1,000/- per month on an average for the subsequent follow up treatment. As regards Sushrut Hospital, Solapur the applicant claims to have spend Rs.15,000/- on medical treatment and Rs.5,000/- on diet, conveyance etc. According to the applicant he has suffered 100% permanent disability due to the injuries suffered in the accident and he is unable to work any 3 more. The appellant examined himself, one Nitin Patil, the Record Keeper from Ashwini Hospital and Dr.Sanjay Khairnar, Associate Professor Orth.Medical College and Civil Hospital in support of his claim. Dr.Khairnar in his evidence stated that the appellant has suffered 35% permanent disability. In his cross-examination, the Doctor admitted that the disability suffered by the appellant cannot come in the way of his driving profession. The perusal of the evidence shows that the appellant did not produce any evidence in support of his salary received by him from respondent no.1. Therefore, the learned trial judge considered the notional income of the appellant which comes to about Rs.2,000/- per month as per Explanation II of Section 4 of Workmen’s Compensation Act, 1923 and calculated the compensation payable to him of Rs.22,400/- with the relevant factor for 20 years of completed age as provided under the said provision and awarded the compensation of Rs.78,400/-. 3. Mr.Gawade learned counsel for the appellant submits that this calculation of compensation is incorrect. The appellant ought to have been compensated on the basis of 100% disability. Since the appellant’s own evidence is that the disability suffered by the appellant is only of 35%, there is no question of he receiving compensation on the basis of 100% disability. The perusal of the impugned order shows that there is no 4 infirmity whatsoever in the impugned order. The learned Judge has rightly appreciated the evidence and there is no disputed question falling for consideration. In the circumstances, the First Appeal is dismissed in limine. (Smt.R.P. SondurBaldota,J.) 5