The court affirmed that an injured workman's total inability to perform his job, validated by medical evidence, constitutes total disability under the Workmen's Compensation Act.

JUDGEMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 5499 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE H.K.RATHOD ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= NEW INDIA ASSURANCE COMPANY LTD - Appellant(s) Versus JORUBHA PANCHAJI JETHWA & 1 - Defendant(s) ========================================================= Appearance : MR HASMUKH THAKKER for Appellant(s) : 1, None for Defendant(s) : 1 - 2.

========================================================= CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 08/12/2008 ORAL JUDGMENT

1. Heard learned advocate Mr.H.M.Thakker for appellant – Assurance Co.

2/17 JUDGMENT

2. The appellant – Assurance Co. has challenged order passed by learned W.C.Commissioner, Kutch at Bhuj in WC (NF) Case No.7 of 2006, Exh.30 dated 21.8.2008. The learned W.C.Commissioner has awarded Rs.4,89,240/- compensation in favour of claimant with 9% interest and 50% penalty has been awarded against employer and liability of interest is fasten upon the Assurance Co.

3. Learned advocate Mr.Thakker has raised contention that W.C.Commissioner has committed an error of law in directing appellant to pay compensation with interest, though there is no provision under W.C.Act to implead the appellant in W.C.Case as there is no contract between the claimant and Assurance Co. He also submitted that W.C.Commissioner has also committed error in directing the appellant to pay compensation along with interest when there is no conclusive documentary evidence in respect of the salary of respondent No.1. He also submitted that Rs.100/- daily bhathha cannot be considered to be a part of wages. Therefore, assessment of the monthly salary is erroneous. He also submitted that medical certificate, certifying 54% disability as a body which has not been considered and 100% disability has been taken into account without any medical certificate. Therefore, according to him, the W.C.Commissioner has committed gross error in awarding compensation to the claimant with interest against the Assurance Co. Except that, no other contention is raised by learned advocate Mr.Thakker on behalf of appellant.

4. I have considered contentions raised by learned advocate Mr.Thakker and also perused the order passed by W.C.Commissioner. The claim petition was filed by claimant 3/17 JUDGMENT claiming Rs.7,85,910/- under Section 4 of W.C.Act. Shri Jorubha Panchaji Jethwa sustained serious injuries and consequent permanent disablement in a vehicular accident which had taken place on 28.8.2005 at about 23:45 hours near Vishvanath Petrol Pump near Vasad Chokadi on Vasad- Vadodara Road National Highway No.8. According to claimant, he was resident of village Ratnal, Taluka – Anjar, District – Kutch. He was employed as workman by opponent No.1. He was working with opponent No.1 as a driver on the Truck No.GJ-12-U-9713. On 28.8.2005, the applicant was on duty and was proceeding with the said truck from Pandhro to Surat. At 23.:45 hours, on the said day, when said Truck had reached near Vishvanath Petrol Pump near Vasad Chowkdi on Vasad-Vadodara Road National Highway No.8 at that time a truck bearing No.KA-01-AB-7888 came from opposite direction and dashed and collided with the truck of applicant and accident too