1 FA-530-2014

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

FIRST APPEAL NO. 530 OF 2014

Ashok Raybhan Kashide,

Age : 33 years, Occu : Nil,

R/o Borja, Tq: Aundha Nagnath

Dist: Hingoli.

...Appellant

(Orig. Claimant)

Versus

1.

Shivaji S/o Parbatrao Dhale

Age: 36 Years, Occu: Business,

R/o: Basamba, Tq & District: Hingoli.

(Owner of Tempo no MH 26 H 6590)

2.

United India Insurance Co. Ltd.,

Branch Manager,

Daywan Complex, Station Road,

Parbhani, Tq. & District : Parbhani.

...Respondents

(Orig. Respondents)

Mr Pavankumar S. Agrawal, Advocate for Appellant

Mr Suhas R. Sirsath, Advocate for Respondent No.1

Mr Vinodkumar R. Mundada, Advocate for respondent No. 2

CORAM : SHRIKANT D. KULKARNI, J.

RESERVED ON : 24.11.2021

PRONOUNCED ON : 13.01.2022

JUDGMENT :

1.

This appeal is directed against the impugned Judgment and

award passed in NFA No. 24/2012 by the Civil Judge, Senior Division and

Commissioner for Employees Compensation, Hingoli by taking aid of

Section 23 of the Employees’ Compensation Act, 1923.

2 FA-530-2014

2.

Brief facts giving rise to this appeal are as under :-

(a)

The appellant/original claimant was working as a labour on the

vehicle/tempo bearing Registration No. MH-26-H-6590 owned by

respondent No. 1. He was getting monthly salary of Rs. 6,000/- per month.

The appellant along with other labours Bajirao Maske, Shaikh Rafik and

Sandeep Ubale were discharging their duty on the vehicle on 04.04.2012

at 11.00 a.m. They went to Kabra Marbles, Hingoli. Arvind Wadkute was

diving the vehicle. After loading the goods in the vehicle, they arrived at

the house of one Mr Patil. The appellant along with other labours were

unloading the goods. While unloading the goods, one sheet of granite fell

down on the right leg of the appellant. The right leg of the appellant was

fractured. Another labour Bajirao Maske also sustained fracture injury to

his right hand. The appellant was taken to Naik Hospital at Hingoli. It was

a crush injury to right leg of the appellant. The appellant was admitted in

the said hospital from 04.04.2012 to 29.04.2012. The right leg of the

appellant came to be amputed. According to the appellant, it is a case of

100% permanent disability and it is a loss of 100% earning capacity.

However, the learned Civil Judge, Senior Division and Commissioner for

Employees Compensation has determined permanent disability to the

extent of 75% and awarded compensation of Rs. 3,66,930/- including

expenses of medical treatment etc.

(b)

Feeling aggrieved by the impugned Judgment and Award

passed by the learned Civil Judge, Senior Division and Commissioner of

Employees Compensation, the appellant has preferred this appeal.

3 FA-530-2014

3.

Heard Mr Pavankumar Agrawal, learned counsel for the

appellant/original claimant, Mr Suhas Sirsath, learned counsel for

respondent No.1 and Mr Vinodkumar R. Mundada, learned counsel for

respondent No.2/United India Insurance Co. Ltd.

4.

Mr Agrawal, learned counsel for the appellant took me to the

relevant paras of the impugned Judgment and coupled with the evidence.

He submitted that right leg of the appellant is amputed. Even though

Dr. Bhagwan Pundge has stated that appellant’s disability is 75% and

disability certificate to that effect is issued vide Exh. 24, it is a case of

100% loss of earning capacity. The appellant was working as a labour.

Due to amputation of his right leg, he is unable to discharge his work as a

labour. The appellant is entitled to get compensation by holding that it is a

case of 100% loss of earning capacity.

5.

Mr Agrawal, learned counsel for the appellant further invited my

attention that the learned Civil Judge, Senior Division and Commissioner

o