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2014 Supreme(Bom) 1212
IN THE HIGH COURT AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD
T.V. NALAWADE, J.
Ishwar Gulab Pawar, Died through his L.Rs. - Appellants.
Versus
Ayoub Jamal (Qureshi) - Respondents.
FIRST APPEAL NO. 744 OF 2003
Decided on : 24th June 2014
Mr. Rashmi Kulkarni h/f. Mr. S.D. Kulkarni, Advocate for appellants.
Mr. V.N. Upadhye, Advocate for respondent No. 2.
Headnote:Workmen’s Compensation Act, 1923 - Section 4 - Calculation of compensation. - Where there was permanent total disablement, therefore amount equal to 60% of monthly wages multiplied by relevant factor required to be given. - Section 4 of W.C. Act gives two different modes for calculation of compensation in respect of permanent disablement. The modes show that when there is permanent total disablement, amount equal to 60% of monthly wages multiplied by relevant factor needs to be given. When there is permanent partial disablement, the compensation for total disablement is required to be taken into consideration and compensation to the extent of percentage of partial disablement only can be given. In the present case, in view of the contentions and the evidence, the provision of Section 4(1)(c) needs to be considered and used.
Workmen’s Compensation Rules, 1924 - Rule 27 - Examination of opponent. - Where opponent contested proceedings by filing written statement therefore examination of opponent by Commissioner not required upon claim. - Rule 27 of Workmen’s Compensation Rules, 1924 shows that when proceeding is contested by filing written statement, the Commissioner is not expected to examine the opponent upon the claim. However, when the proceeding is not contested, the Commissioner is expected to proceed to examine the opposite party upon the claim and the provision show that he shall reduce the result of examination into writing. Though the reply was given to the notice of claimant by the employer, the employer did not file written statement.
Insurance Company contested the matter, but few relevant things are within the knowledge of the employer and so, it was expected from the Commissioner to examine the employer in view of provision of Rule 27(2) of Workmen’s Compensation Rules. Only on the basis of the reply given by the employer, that claimant was working on daily wages and he was paid Rs. 50/- per day, the Commissioner presumed that the monthly wages amount was Rs. 1,300/-. It was submitted that due to this approach of the Commissioner, much less amount than the entitlement is given by the Commissioner.
1. The appeal was admitted on 20.8.2004. Today, by consent, heard the learned counsel for appellant/original claimant and learned counsel for Insurance Company for final disposal. The other learned counsel for respondent No. 2 did not turn up.
2. The appeal is filed by original claimant against the judgment and order of WCA No. 81/1999, which was filed before the Labour Court, Ahmednagar (Commissioner under Workmen's Compensation Act, 1923). The proceeding was filed for compensation in respect of injuries sustained by the claimant in motor vehicle accident and the accident had taken place during the course of his employment with respondent No. 1, owner of the vehicle. The vehicle was insured with respondent No. 2, Insurance Company and the accident took place on 18.3.1999.
3. It is the case of appellant/claimant that he sustained fracture injury to one leg and also to one hand and due to fracture injuries, he cannot work as a driver. He has contended that he had given the evidence accordingly before the Commissioner, but that evidence is not considered by the Commissioner. It is his case that when his monthly salary was Rs. 2000/- and when there was no evidence in rebuttal to such evidence given by him, the Commissioner presumed that the monthly salary was around Rs. 1300/- and so, the Commissioner has committed error in calculating loss of future income of claimant. It is contended that Commissioner ought to have held that there is permanent total disablement due to these injuries.
4. The other grievance of the appellant/claimant is about the 'penalty'. It is contended that the Commissioner has not granted penalty even when notice was given by him to the owner and demand of compensation was made and the owner did not pay any compensation. It is contended that the Commissioner ought to have considered the circumstance of giving notice and also the fact that, the claimant is held to be entitled for getting the compensation.
5. During arguments in this proceeding, in view of provision of 30 of Workmen's Compensation Act, 1923 the learned counsels were told that following substantial questions will be considered as per the submissions made by the learned counsel for the appellant and argument was heard on these points.
(i) Whether the Commissioner has committed error in holding that the monthly salary of claimant was only Rs. 1300/- ?
(ii) Whether the Commissioner has further committed error in holding that there is only permanent partial disablement and it is to the extent of 40% ?
(iii) Whether the Commissioner has committed error in not following the procedure for consideration of grant of the penalty atleast as against respondent No. 1, the employer ?
6. From the record, it can be said that the Commissioner considered the relevant evidence and rival cases, but the evidence was not correctly appreciated and the inferences were not correct. It is admitted that the claimant was working as a driver on a tempo, goods vehicle of respondent No. 1. When the accident took place on 18.3.1999, notice of demand was given by the claimant to owner and Insurance Company on 15.7.1999. In the notice, the incident and the claim were mentioned. The injuries were also described, though there was no disability certificate obtained by the claimant at that time. This notice was replied by the owner on 28.7.1999. The owner denied the claim. He denied that the claimant was regular employee and he contended that claimant was appointed as 'Badli driver' for two days on daily wages of Rs. 50/- as regular driver was on leave. The owner denied that there was permanent total disablement and the claimant cannot drive the four wheeler due to the injuries sustained in the accident. Though such defence was taken by the owner, in reply, no written statement was filed by owner, employer before the Commissioner. Only the Insurance Company contested the matter. It needs to be kept in mind that the Insurance Company has no personal knowledge with regard to
