1. Admit. The record and proceedings is received. The present Appeal is taken for final hearing with the consent of the learned counsel for the parties.

2. The appellant had filed an application for compensation before the Commissioner for Workmen’s Compensation at Dhule [For short, ‘ the Commissioner ‘] seeking compensation of Rs. 3,11970/- on account of the injuries sustained by the appellant while driving the motor vehicle during the course of and out of an employment with respondent no. 1. The said vehicle is also owned by respondent no.

1. The same is insured with respondent no. 2.

3. It is the case of the appellant that he was in employment with respondent no. 1 as a driver on the vehicle i.e. Maruti Van bearing R.T.O. Registration No. MH-18/S-1854. He was getting salary of Rs. 3,500/- per month. According to the appellant, on 4/6/2005 he was driving the said vehicle on Tarabad – Satana road and one vehicle Qualis bearing R.T.O. Registration No. MH-21/B-654 came from the opposite side and gave dash to his Maruti van. The appellant suffered multiple injuries on his person. He lost the total eye sight of his right eye. The accident took place during the course of and out of an employment with respondent no. 1. According to the appellant, he was aged 30 years on the date of accident and taking into consideration 100 % disability, his age and income of Rs. 3500/- per month, the appellant claimed total compensation of Rs. 3,11,970/-.

4. Respondent no. 1 admitted in his Written Statement that the appellant is his employee and was working as a driver on his vehicle and was paid salary of Rs. 3,000/- per month.

5. Respondent no. 2 – Insurance Company denied the contentions of the appellant by filing Written Statement. Respondent no. 2 denied the monthly income of the appellant, the injuries and the disability certificate and that the appellant was holding valid and effective driving licence.

6. The appellant examined himself and P.W. 2 Dr. Ramdas Wankhede. Respondent no. 1 also examined himself but respondent no. 2 Insurance Company did not lead any oral or documentary evidence.

7. The Commissioner vide its Judgment and Award dated 24/06/2009 partly allowed the application of the present appellant and granted compensation of Rs. 77,107/-. The Commissioner did not accept the contention of the appellant of he being 30 years of age. The Commissioner held that the appellant was 42 years of age on the date of accident, so also the Commissioner held that as per the disability certificate, the permanent disability is only 40 % and not 100 % and as such held that the earning capacity of the applicant has been lost to the extent of 40 %. The Commissioner also held salary of the appellant to be Rs. 1800/- per month and not Rs. 3,000/- per month. The appellant has assailed the said Judgment before this Court in the present Appeal.

8. Heard Mr. Barde, the learned counsel for the appellant, Mr. Narwadkar, the learned counsel for respondent no. 1 and Mr. M.M.Ambhore, the learned counsel for respondent no. 2 at length and also with their assistance gone through the record.

9. Mr. Barde, the learned counsel for the appellant canvassed following proposition :

(i) The Commissioner committed patent illegality in accepting the age of the appellant as 42 years relying on the injury certificate, but the disability certificate shows the age of the appellant on the date of accident as 32 years. The disability certificate which is issued after thorough examination, ought to have been relied upon.

(ii) The salary certificate is produced on record, which shows the salary of the appellant as Rs. 3,000/- per month. Even the owner has stepped into the witness box and has confirmed the salary of the appellant to be Rs. 3,000/- per month. Respondent no. 2 has not led any evidence to disprove the said fact. As such it was erroneous on the part of the Commissioner to consider the salary as Rs. 1800/- per month on hypothetical consideration.

(iii) It is