JUDGMENT :

N.J. JAMADAR, J.

1. This appeal is directed against a judgment and award dated 7th February 2020 passed by learned Commissioner for Employees’ Compensation and Judge, Tenth Labour Court, Mumbai, in Application (ECA) No. 336/C-80 of 2014, whereby, the application preferred by respondent No. 1-original applicant came to be allowed and appellant and respondent No. 2-employer were directed to jointly and severally pay an amount of Rs. 8,70,576/- alongwith simple interest at the rate of 12% per annum from the date of accident till realization for the permanent disablement suffered during the course of employment. In addition, respondent No. 2-employer was saddled with a penalty of 40% of the compensation. (The parties are hereinafter referred to in the capacity they were arrayed before the learned Commissioner for Employees’ Compensation).

2. The appeal arises in the backdrop of the following facts:

(a) Respondent No. 1-applicant was in the employment with respondent No. 2-opponent No. 1 as a Driver on tanker bearing No. GH-16/X-7166, which was insured with the appellant/original opponent No. 2.

(b) On 18th March 2014, while the applicant was on the wheel of the above-numbered vehicle, at Mohol, District Solapur, a motor cyclist threw a stone towards applicant. The latter suffered grievous injuries on his head and face. Initially, the applicant was taken for treatment at Chhatrapati Shivaji Maharaj Hospital at Solapur. Later on, the applicant was referred to Lokmanya Tilak Medical College Hospital, Sion, Mumbai (Sion Hospital). On account of the injuries sustained in the accident, the applicant was required to undergo evisceration of the right eye. The applicant, thus, suffered 100% permanent disability, which entailed the consequence of incapacitating the applicant from working as a driver. Thus, the applicant preferred an application for compensation before the learned Commissioner.

(c) The opponent No. 1/employer did not appear despite service of notice. Hence, the application proceeded ex-parte against opponent No. 1.

(d) The opponent No. 2-insurer resisted the application by fling written statement. The employer-employee relationship between the opponent No. 1 and the applicant was put in contest. The mode and manner of the alleged accident and the injuries and the consequent disability, stated to have been sustained by the applicant, were denied.

(e) The learned Commissioner recorded evidence of the applicant Keshar Gopal Singh Thakur (AW-1) and Dr. Naresh M. Khanna (AW-2), Orthopedic Surgeon, who had examined the applicant, and issued the disability certificate (Exh.U-19). The learned Commissioner also perused the documents tendered on behalf of the applicant, including the medical record and the discharge cards issued by Chhatrapati Shivaji Maharaj Hospital, Solapur and Sion Hospital, Mumbai.

(f) After appraisal of the oral and documentary evidence and the material on record, the learned Commissioner was persuaded to record a finding that though the permanent partial disability was certified at 54% yet the applicant, having lost the right eye, was totally incapacitated from performing the work of a driver. Thus, the learned Commissioner opined that the applicant suffered 100% loss of earning. Resultantly, applying the prescribed formula, the learned Commissioner awarded the compensation as indicated above.

3. Being aggrieved by and dissatisfied with the impugned judgment and award, the opponent No. 2/insurer is in appeal.

4. Having regard to the nature of controversy sought to be raised on behalf of the appellant-insurer, by an order dated 18th June 2021, the parties were notified that an endeavour would be made to dispose of the appeal finally at the stage of admission.

5. I have heard Ms. Kalpana Trivedi, the learned counsel for the appellant and Mr. Gatane, the learned counsel for the respondent No. 1-applicant, at le