1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.4097 OF 2008 WITH C.A.NO. 12093 of 2008 The New India Assurance Co.Ltd., Dhule, Through it's Manager, (Insurer of Dumper No.MH-04-AL-3841 Policy No.141/00/31/05/06071, Period: 10/06/2005 to 09/06/2006) Through it's Athorised Signatory, Divisional Manager, at Aurangabad. ...APPELLANTS VERSUS (Original non applicant no.3) 1. Shri Arvind s/o Sonu Gawale, Age: 25 years, Occu: Not known, r/o. At & Post Khede, Taluka and District Dhule. (Original applicant.) (2. Shivdas s/o Bhaurao Waghmode, Age: Adult, Occu. : Business, r/o. 126, Shelar Wadi, Chitod Road, Dhule, Dist. Dhule.) (Original non applicant no.1.) (3. Nuruddin s/o Fidahussain Ratnani, Age: Adult, Occu: Transport, r/o. Opp. Muslim Masjid, Reti Bunder, Ghodbunder, Post Mira, Thane.) (Appeal dismissed as against R.2 and 3, as per order dt.24.11.2009). ...RESPONDENTS (Original non applicant no.2) 2 Mr.V.R.Mundada, Adv., for the appellant. Mr.Mahesh S.Patil, Adv., for respondent no.1. Appeal dismissed as against Respondent Nos. 2 and 3 as per order dt.24.11.2009. ... CORAM: K.U. CHANDIWAL, J. DATE :28th Jan.,2010 *** PER COURT : 1. Heard. The matter is finally heard at admission stage. The appellant Insurance Company feels aggrieved by the award under Workmen's Compensation Act passed by the learned Commissioner for Workmen's Compensation dt. 20.8.2008, granting Rs.1,31,970/- with 10 per cent interest from the date of application. 2. The case of the claimant/applicant Arvind Sonu Gawale before the learned Judge was, on account of driving the vehicle, Dumper MH-04/AL-3841, on 23rd Feb.,2006, in order to save a cyclist coming from opposite side, his vehicle turtled, he suffered injuries and was required to be admitted. The nature of injuries include fracture to right knee, injuries to shoulder and head region. He asserted, he is unable to carry any manual work. He has incurred expenditure of Rs.20,000/- to Rs.25,000/- on 3 account of medical expenses. He has lost hundred per cent working capability and, consequently, claimed from the respondents/ owner of the vehicle and the Insurance Company. 3. The factual details about the accident are not in controversy. The age of the claimant to be 23 years, having born on 4.4.1983, having been so referred in the driving license, is also not in controversy. 4. The crux of the matter revolves to the claim of 40 per cent disability and thereupon the learned Judge treating it as 50 per cent loss of working capacity. This needs to be addressed. 5. The claimant has also examined two witnesses; Dr.Nandkishre Goyal, who had examined claimant on 24th Feb.,2006 and Dr.Charudatta Shinde, who had examined the claimant on 2nd Sept.,2006. Dr.Charudatta Shinde issued certificate Exh.U-23, certifying that the claimant has suffered 40 per cent of the injuries and they transform into permanent disablement. 6. Normally, the certification issued by the Medical Officer about the injuries need not be traversed with, with precision exercise, however, the unfortunate event as has been brought on record blasts the contention of the 4 claimant of having suffered firstly, 40 per cent disablement and, secondly, it was permanent disablement, incapacitating him to perform his regular pursuits. 7. It is a matter of record, having admitted in the cross examination, in spite of the accident having taken place on 23rd Feb., 2006, the claimant got married on 29.4.2006 and, thereafter, out of wedlock, he has a son born on 19th Jan.,2008. A person by the caliber of surfacing or sustaining injuries 40 per cent of injuries, translating in a handicapped position for 10/15 days, would not accelerate into entering into marriage within a short span. This creates a question mark about the very nature of the injuries suffered by the claimant. 8. The other aspect in the matter is, initially driving license of the claimant is of 2002, which was in force till 19.4.2008, however, for the reasons best known, if the claimant submits having lost 100 per cent disablement, there was no reason or occasion for him to get driving license renewed by making application before the Regional Transport Authority. For such form, the medical details are to be furnished and the medical certificate was also mandatory. The claimant has got his driving license renewed upto 19th May, 2011. This, naturally, dilutes 5 the contention of the claimant having lost 100 per cent capacity or 50 per cent capacity. Had he suffered injury of any grave nature, as he accelerates, there was no reason to move in the manner he has applied to the Regional Transport Authority and got the license renewed. 9. Now, turning to the evidence of Dr. Nandkishor Goyal and Dr.Charudatta Shinde, it is curious, the accident was in Feb.,2006, Dr.Shinde examined the patient/claimant on 2nd Sept.,2006. The injury no.1 referred by Dr.Shinde is fracture medial condyle of tibia of right knee. This fracture, by any definition, will not translate into a disablement of permanent nature. The clinical findings recorded by the Medical Officer i.e. range of movements are restricted or painful, there is decrease of muscle power or muscle waisting present, will not be branding itself in the bracket of terming it as permanent disablement. The findings of arrest of movements was definitely based on claimant's statement before Dr.Shinde, as no X ray was snapped by Dr.Shinde while issuing certificate Exh.U-13. 10. Counsel for Insurance Company harped to certificate Exh.C-9 issued initially in which it was indicated, that there was trauma to left knee. This has not been explained by Dr.shinde, 6 as to how the trauma has turned into a fracture, in the manner in which it has been espoused. 11. Examination of the claimant by Dr.Goyal immediately on 24th Feb.,2006, also indicates that there was right knee fracture medial condyle of tibia right knee and contusion on left parietal region and blunt trauma on left shoulder. The injury no.1, according to Mr.Goyal was grievous while injury nos. 2, 3 and 4 were simple in nature. He had issued certificate Exh.U-17. Dr.Goyal could not sustain to confirm that the nature of injuries was 40 per cent disablement. The assessment of the evidence carried by the learned Judge and, particularly, recording findings to accept medical evidence or renewal of the license is far fetched from the recognized and accepted principles of evidence. It is, in the situation, difficult to digest and act upon. The order needs interference. 12. The appeal of Insurance Company is allowed and the claim/award against it is set aside. Civil Application disposed of. [K.U. CHANDIWAL, J.] agp/4097-08fa