Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2014 Supreme(Bom) 1310

IN THE HIGH COURT AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD
T.V. NALAWADE, J.
United India Insurance Company Ltd., Through its Divisional Office, Divisional Manager, Osmanpura, Dist. Aurangabad. - Appellant.
Versus
Pandurang s/o. Bhimrao Dhere - Respondents.
FIRST APPEAL NO. 351 OF 2013 WITH FIRST APPEAL NO. 3037 OF 2013
Decided on : 07/07/2014

Advocates appeared:
Mr. S.V. Kulkarni, Advocate for appellant.
Mr. A.R. Devakate, Advocate for respondent No. 1.

The main legal point established in the judgment is the calculation of compensation for work-related injuries under the Workmen's Compensation Act, focusing on the assessment of disability and earning capacity, as well as the liability of the employer and the insurance company.

Headnote:
Workmen's Compensation Act - Compensation Calculation - Sections 2(l), 4(1)(c)(ii) - The judgment discusses the calculation of compensation for a work-related injury under the Workmen's Compensation Act, focusing on the claimant's earning capacity, disability assessment, and the procedure for determining compensation. The court also addresses the liability of the employer and the insurance company, as well as the payment of penalty and interest.
Fact of the Case:

The injured claimant, a truck driver, sustained a fracture injury to his right leg in an accident while working. He sought compensation for permanent disability and loss of earning capacity.
Finding of the Court:

The court found that the claimant's total disability was not proved, and the compensation was to be calculated based on the extent of permanent partial disability as provided in section 4(1)(c)(ii) of the Act. The court also set aside the penalty imposed on the insurance company and modified the interest payment to be from the date of the accident.
Issues: Calculation of compensation, liability of employer and insurance company, penalty payment, and interest calculation.
Ratio Decidendi: The court held that the claimant's total disability was not proved, leading to the calculation of compensation for permanent partial disability. The court also addressed the liability of the employer and the insurance company, setting aside the penalty imposed on the insurance company and modifying the interest payment.
Final Decision: The appeals were partly allowed, with the judgment and order of the Commissioner directing the Insurance Company to pay the penalty set aside. The employer and the Insurance Company were made jointly and severally liable to pay the claimant compensation with interest from the date of the accident. The employer was to pay the penalty amount to the claimant, and the excess amount paid by the Insurance Company could be recovered from the employer.

Judgment :

1. Both the appeals are admitted. Notice after admission made returnable forthwith. By consent, heard both the sides for final disposal.

2. Both the appeals are filed against judgment and order of W.C.A. No. 42/2011, which was pending before the Commissioner appointed under the Workmen's Compensation Act, 1923 ('the Act' for short). In an application filed by the injured, the compensation of Rs. 1,94,430/- is awarded by the Commissioner and order is made against both the employer and the Insurance Company to pay the penalty of 50% amount of compensation. Interest at the rate of 12% p.a. is awarded on the compensation amount, but it is awarded from 19.7.2011 and not from the date of accident. The injured claimant has filed First Appeal No. 3037/2013 to challenge the quantum and also the period from which the interest is made payable. The Insurance Company has challenged the decision against the order of penalty and also against the calculation of compensation.

3. The injured was working as a driver on the truck belonging to original respondent No. 1, employer. Accident took place on 26.4.2010. Claimant sustained fracture injury to his right leg. It is contended that due to the injuries sustained in accident, the claimant is suffering to permanent disability to the extent of 20%, but the functional disability is of 100%.

4. It is the case of claimant that his monthly salary was Rs. 5,000/- and he was getting daily Bhatta of Rs. 50/- from the employer. It is his case that his age was 45 years at the relevant time and due to the injuries, he cannot drive any vehicle including the truck. It is his case that he is entitled to get compensation of Rs. 6,03,320/- and interest on it from the date of accident. It is his case that he had given notice to the employer and as employer did not pay the amount due, he is entitled to get the penalty.

5. The owner filed written statement and contested the matter. He contended that the claimant was appointed on daily wages. He denied that monthly salary of the claimant was Rs. 5,000/-. He admitted that notice was given to him, but he contended that the notice was replied, but the claimant was not available at the address given by him in the notice.

6. The Insurance Company also filed written statement and contested the matter. It is the case of Insurance Company that there has been breach of conditions of policy like absence of licence.

7. The record like notice given by claimant and reply given by employer are placed on the record. Oral evidence is given by the claimant that his monthly salary was Rs. 5,000/-, but there is no record whatsoever in support of this contention. However, in view of the fact that the claimant was working as a driver on heavy vehicle like truck, the Commissioner has presumed that his monthly salary was Rs. 5,000/-. The Commissioner has held that the earning capacity of the claimant is reduced by 20% as permanent disability is to the extent of 20%. The accident took place in the year 2010 and this fact is considered by the Commissioner by making presumption about the monthly income.

8. There is substantive evidence of the claimant that he cannot drive the truck. He has examined the doctor, who gave him treatment and who gave him disability certificate. The evidence of doctor and disability certificate show that there was fracture to right leg and due to the fracture there is permanent disability to the extent of 20%. The evidence of doctor shows that X-ray plate was not there when he made assessment of permanent disability. His evidence does not show that any test was taken by him to ascertain that the claimant cannot drive four wheeler vehicle. When in the discharge card, there is mention that there was fracture of tibia right, evidence is given by the doctor that there was compound communitted fracture of right tibia middle third. When there is no mention about shortening of limb and there is no X-ray, evidence is given by the doctor that there is shortening

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