ORAL JUDGMENT

1. Feeling aggrieved by and dissatisfied with the judgment dated

30.08.2016, passed by the Ex-Officio Commissioner W.C. Act, Labour Court, Jamnagar in Workmen Compensation Non-Fatal Application No.11 of 2009 below Exh.50 and judgment below Exh.51 passed in Review Application dated 30.08.2016, order dated 29.09.2016, the appellant-original opponent no.3 has preferred the present appeal under Section 30 of the Employee’s Compensation Act, 1923 ("the Act" for short).

2. The parties in this judgment are referred to as per their original status in the claim application.

3. Heard Mr.Rathin P. Raval, learned counsel for the appellant-

United India Insurance Co. Ltd, original opponent No.3, Mr.D.M.Devnani, learned counsel for respondent No.2 for Nanavati Associates. The respondent Nos.1 and 3 though served, have not filed any appearance.

4. The Coordinate Bench of this Court had admitted the First Appeal vide order dated 06.09.2018. It is pertinent to note that a learned advocate for respondent no.1 had waived service of notice on behalf of respondent no.1. However, in spite of that no appearance is filed on behalf of the respondent no.1. The Coordinate Bench, vide order dated 06.09.2018 admitted the appeal on the following questions of law:

a. Can the insurer be liable to pay compensation to the claimant more than what is permitted by Section 4 of the Act?

b. Can the disability be considered more than what is assessed as per the doctor’s deposition at Exhibit 33?

5. In light of the aforesaid fact and at the request of the learned counsels for the parties, the appeal is taken up for final disposal. Learned advocate for the appellant has made his submissions only on the question of law - Can the insurer be liable to pay compensation to the claimant more than what is permitted by Section 4 of the Act? He has not pressed the appeal qua the remaining question of law. Hence, the present judgment is limited to only the quantum aspect of the compensation.

6. The following noteworthy facts emerge from the record of the appeal:

a. It is case of the workman that on 04.01.2009, the workman was working with one Arvind Paresha (Shivam Engineering). While working on the site, he fell down as he got slipped. As a result of the accident, the workman received serious injuries.

b. Therefore, the workman filed Workmen Compensation Non-Fatal Application No.11 of 2009 before the Commissioner, claiming compensation of Rs.5,11,560/-. The insurance company filed the written statement / objections below Exh.21. The original opponent no.2 filed their reply below Exh.11. The original opponent no.3 filed their reply below Exh.21.

c. The workman examined himself below Exh.28. He also relied on various documents, as stated on page No.3 of the judgment. Original opponent no.2 produced the insurance policy and other documents through a documentary list below Exh.12. The original opponent no.1 did not produce any documents. The insurance company also produced the insurance policy, no claim letter and other documents below Exh.12. Upon closure of evidence, the workman filed written arguments below Exh.48. The insurance company produced written arguments below Exh.49.

d. The Labour Commissioner framed issues below Exh.27. The Commissioner then partly allowed the claim petition by a judgment dated 30.08.2016. The claim petition was partly allowed and compensation of Rs.3,75,601/- was awarded. The Commissioner also awarded simple interest at the rate of 12% to the workman. The order for interest was made only against the original opponent Nos.1 and 2. The insurance company was not ordered to pay any interest.

e. Being aggrieved by the judgment of the Labour Commissioner, the insurance company filed a review application below Exh.51 under Section 152 of the Code of Civil Procedure, 1908. The grievance of the insurance company was that the judgment had a calculation error and hence, it was required to be modified. The Commissioner by one paragraph order dated 29.09.2016 d