The assessment of disability in compensation cases must rely on credible medical evidence, and arbitrary increases in disability percentages are not permissible.

JUDGMENT :

(Nisha M. Thakore, J.)

1. The present appeal is filed under Section 30 of the Workmen Compensation Act, 1923, at the instance of the Insurance – Company being aggrieved and dissatisfied with the award dated 18.05.2009 passed by the learned Commissioner, Bhuj-Kachchh in W.C. Application (NF) No.26 of 2006. By the said impugned award, the learned Commissioner has held the Insurance Company and the opponent No.1 jointly and severally liable to pay the compensation of Rs.2,84,659/- with interest at the rate of 12% to the original applicant. The leaned Commissioner has also imposed 50% penalty of an amount of Rs.1,42,330/- upon opponent No.1 - employer by its order dated 08.05.2009. Hence, this appeal is under Section 30 of the Workman Compensation Act.

3. In nutshell, the facts of the case as raised in the claim petition are as under:

3.1 The original claimant – Nathulal Moghji Patel was working with the opponent No.1-Patel Travel Services as a driver of bus bearing registration No.GJ-IX-9843, which was insured with the present appellant - Insurance Company.

3.2 At that point of time, he was drawing salary of Rs.6000/- per month. It is alleged that on 25.04.2005 because of the accident of the bus which took place on Ahmedabad – Limdi Highway while he was driving the said bus, the original claimant sustained injuries. It is the case of the original claimant that suddenly an animal came in front of the bus because of which he lost control over the bus resulting into an accident.

3.3 The claim petition was preferred through the next friend and his wife namely Smt. Savitaben Nathulal Patel as the injured claimant had sustained injuries which had made him mentally and physically handicapped. The claim petition was registered as W.C. Application (NF) No.26 of 2006 before the W.C. Commissioner, Kachchh 3.4 The appeal was admitted by this Court vide order dated 09.10.2009. Pending the appeal the appellant - Insurance Company had preferred civil application for stay, wherein at stage of admission hearing, this Court had considered the fact that total amount of Rs.4,28,579/- has already been deposited, out of which sum of Rs.1,82,995.20 is an admitted amount. The Court permitted the undisputed amount to be deposited and withdrawn by the original claimant, whereas the rest of the amount was directed to be invested in Fixed Deposit Receipts in any Nationalized Bank initially for a period of five years which was directed to be renewed from time to time pending this appeal. The quarterly interest which was to accrue on such deposit was permitted to be paid to the original claimant. The aforesaid order was further modified by this Court vide order dated 21.12.2009 directing the learned Commissioner to pay 30% amount of the disputed amount by account payee cheque in the name of original claimant after due proper verification. The rest of the amount was directed to be invested in any FDRs with any Nationalized Bank. The Court clarified periodical withdrawal of the interest on such FDRs pending this appeal in favour of the original claimant.

4. In background of the aforesaid order, learned advocates appearing for the respective parties have placed on record the calculation.

4.1 Mr. K. V. Gadhia, learned advocate appearing on behalf of the appellant - Insurance Company had submitted that except for the disability factor considered by the learned Commissioner, no other amounts are disputed between the parties. The attention of this Court was invited to the relevant observations made by the learned Commissioner, more particularly, para 28 to contend that having appreciated the evidence brought on record, more particularly, the medical certificate produced at Exh.23/4 issued by Dr. R. B. Trivedi, Neuro Surgeon, the learned Commissioner had accepted to treat the disability as 45% of the body as a whole. However, in the later part of the computation of the amount of compensation has considered the disability sustained by the claimant as 70% inst