1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.1667 OF 2009 with CA/6640/2008 The New India Assurance Company Ltd. a Subsidiary of the General Insurance Corporation of India And a company incorporated under the Companies Act Having its regional office at 11/1, 2nd floor, Sharadaa Center, Erandwana, Pune, and one of its Divisional Office at Adalat Road, Aurangabad Through its Senior Manager Shri Vishwas s/o Bansi Gayakwad, Age 52 years, Occ. service as Senior Manager The New India Assurance Co. D.O.No.1, Adalat Road, Aurangabad. ...APPELLANT (ORIG.R.No.2) VERSUS 1. Shaikh Babloo s/o Shaikh Rahim, Age 22 years, occ. laborer, R/o. Gandhinagar, Ambajogai, Dist.Beed. 2. Shaikh Pasha s/o Shaikh Isaq, Age major, occ. business, r/o. Gandhinagar, Ambajogai, Dist.Beed. ..RESPONDENTS (Orig.claimant and Orig.R.No.1 respectively) ... 2 Mr. Ajit Kadethankar, Adv., for the appellant. Mr.T.G.Gaikwad, Adv., for respondent no.1. Mr. Sachin Deshmukh, Adv., for respondent no.2. ... CORAM: K.U. CHANDIWAL, J. DATE :24th Feb.,2010 *** PER COURT : 1. Heard finally. 2. The Insurance Company feels aggrieved by the award Rs.3,37,055/- with interest at the rate of 9 per cent per annum recorded by the learned commissioner, Workmens compensation and Civil Judge, Senior Division, Ambjogai, vide order dt. 7.9.2007. 3. Shaikh Babloo was working as a labour with original respondent no.1 Shaikh Pasha on the truck No.MH-14-4285 on monthly wages of Rs. 3,000/-. The relationship virtually is not in controversy. During the course of employment there was an accident due to bursting of the tyre and the truck tilt in a ditch. Resultantly, the petitioner-claimant (respondent in the appeal) suffered injuries. He was referred to S.R.T.R. Medical College Hospital, Ambejogai for treatment. He was indoor patient from 20th 3 April, 2006 to 16.5.2006. 4. It is a matter of record, the claimant was required to undergo operation of left leg and a rod was inserted because of the injury suffered by him. PW No.2 Dr.Vijay Burande had examined petitioner-claimant Shaikh Babloo. There was a fracture on left shaft of femur and fracture to tibia fibula on his right leg. Medical certificate at Exh.24 illustrate, the claimant Shaikh Babloo has suffered 20 per cent disablement. The claimant was discharged from the hospital on 16.5.2006, as per discharge card at Exh.34. 5. The nature of injuries to which reference is given and accepted by the claimant and also by PW No.2 Vijay Burande, though is referred to be of 20 per cent, the same being fracture to tibia fibula of right leg and left shaft of femur will hardly make discomfort to the claimant to pursue his ordinary pursuits as a labour with the truck. It may be, on occasions, he had difficulties owing to insertion of the rod, however, the post operational avenues for regression being available, it is difficult to digest that the earning capacity of the claimant is reduced to 100 per cent. The observation of the learned Judge, in this context, requires interference. 4 6. The calculations which the learned Judge has carried, in applying formula in terms of Section 4(1)(b) of the Act is certainly on a wrong pedestal; it should have been in terms of Section 4(1)(c) of the said Act. The observation of the learned Judge about monthly earning of Rs.2500/- though challenged by the Insurance Company, I do not see any reason to interfere in the same. 7. On calculation, the claimant is found to be entitled to Rs.1,10,685/- by applying multiplier of 221.37 which is loss of earning capacity. The claimant has certainly suffered mental torture. He is bound to have a post operation after a few days to get the rod removed. Consequently, I assess the future mental agony or loss at Rs.20,000/-, thus, the order under challenge needs modification. Hence, order. ORDER The appeal is partly allowed. The award of the learned Commissioner, Workmens Compensation, Civil Judge, Senior Division, Ambejogai, is modified to Rs.1,35,000/- (Rs.one lac, thirty five thousand) with interest at the rate of 9 per cent from the date of petition till realization. No costs. The appellant Insurance Company is 5 entitled to receive the residue after calculation. Civil Application disposed of. [K.U. CHANDIWAL, J.] agp/1667-09fa