5 FA 53-08.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FIRST APPEAL NO. 53 OF 2008

Sunil Kumar Swaraj Mandal

res. At M/s. Satguru Roadways,

Din Quarry Road, Panjrapole,

Chembur Mumbai 400 089

..Appellant

v/s.

1. Gurupreet Singh Malhotra

32/302, Ramabai Colony

Highway, Ghatkoper,

Mumbai 400 075.

2. M/s. New India Assurance Co. Ltd.

87 M.G.Road, Fort,

Mumbai 400 023

..Respondents

Mr. T.J.Mendon for the Appellant .

Mr. Rakesh J. Singh for the Respondent No.2.

CORAM : ANUJA PRABHUDESSAI, J.

DATED : 10^th AUGUST, 2022.

JUDGMENT.

1.

The Appellant herein has challenged the judgment and order

dated 26.10.2007 passed by the learned Commissioner for

Workmen’s Compensation in Application (WCA) No. 751/C-265 of

2003.

P P SALGAONKAR

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PRASANNA P

SALGAONKAR

Digitally

signed by

PRASANNA P

SALGAONKAR

Date:

2022.09.23

17:16:49

+0530

5 FA 53-08.doc

2.

The Appellant had claimed that he was the driver of heavy

vehicle No. GJ-01-AT-1046. The said vehicle met with an accident

on 05.09.2003. The Appellant sustained multiple injuries, resulting

in amputation of right leg below hip. The Appellant claimed that

he was 23 years of age and was earning salary of Rs.4000/- per

month. Since the accident he is unable to work as a driver. The

Appellant therefore filed an application under Section 30 of

Workment’s Compensation Act claiming compensation from the

owner and insurer of the vehicle involved in the accident.

3.

The owner of the vehicle did not contest the proceedings. The

Respondent-Insurance Company denied that the Appellant had

received injuries arising out of and in the course of the employment.

The Respondent- Insurance Company also disputed the income of

the Appellant as well as the nature of injuries sustained by the

Appellant.

4.

Learned Commissioner, upon considering the evidence

adduced by the Appellant held that the Appellant had sustained

injuries in the course of employment. Learned Commissioner also

observed that the right leg of the Appellant was amputated below

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the hip region and that the Appellant had sustained fracture and

several other injures, he is unable to walk without crutches, he

cannot run, climb steps and he has difficulty in sitting. Learned

Commissioner held that the Appellant had failed to prove that he

was drawing monthly income of Rs.4000/- and considering him to

be a skilled worker, learned Commissioner considered the monthly

income of the Appellant at Rs.2604/-. The Commissioner

considered the loss of income at 50% and applying the factor of

219.95 and computed the compensation at Es.1,71,781/- which was

made payable with interest @ 12% per anum from the date of

judgment till final realization.

5.

Mr. Mendon, learned Counsel for the Appellant submits that

the Appellant was a driver on a heavy goods vehicle and that he was

drawing monthly salary of Rs.4000/- per month. He, therefore,

contends that the Commissioner could not have computed the

compensation on the basis of minimum wages drawn by a skilled

worker. He further submits that the Appellant was employed as a

driver and due to amputation of his right leg, he is unable to drive,

resulting in 100% loss of earning capacity. Hence, the learned

Commissioner was not justified in assessing loss of future income

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at 50%. In support of his contention, he has relied upon the

decision of the Honourable Supreme Court in Chanappa Nagappa

Muchalagod vs. Divisional Manager, New India Assurance Co.

Ltd., 2020 ACJ 704. He submits that the interest is payable from

the date of the accident and not from the date of the judgment.

Hence the learned Commissioner was not justified in awarding

interest from the date of judgment. He has relied upon the decision

of the Apex Court in Pratap Narain Singh Deo vs. Shrinivas

Sabata & Anr. 1976 ACJ 141, and Orienta