Judgment:
P.B. Gaikwad, J.
1. New India Assurance Co. Ltd., through its Divisional Manager, filed present appeal challenging the award passed by the Workmen's Compensation Commissioner and I/C Judge, Labour Court, Latur, dated 16.3.1999 in Workmen's Compensation Application No. 95 of 1997.
2. The facts in nutshell, leading to the present appeal, are that:
Truck bearing registration No. MHQ 2581 belongs to opponent No. 1 Vithal Manaji Boyane, r/o Kava, Tq. and District Latur, It was further claimed that the said truck was insured with original opponent No. 2 New India Assurance Co. Ltd., through its Branch Manager, Latur. The applicant, the present respondent No. 1, Ganesh s/o Narayan Pitle was engaged by opponent No. 1 Vithal Manaji Boyane as cleaner on the said truck on the monthly salary of Rs. 2,000 along with bhatta of Rs. 25 per day. It was further claimed that on 21.10.1996, the applicant was on duty as cleaner on the said truck. It was further alleged that on 21.10.1996 in the evening, the said truck was proceeding from Latur towards Ausa and when the truck came near Ausa naka, the driver of the said truck could not control the truck and in an attempt to avoid dash to a bullock-cart, gave dash to the bullock-cart and thereafter to a tree by the side of the road. It was alleged that the driver of the said truck was driving the truck in a rash and negligent manner. Applicant Ganesh Pitle sustained multiple injuries in the said accident. He was immediately taken to the hospital at Latur for treatment on account of the said injuries. It was claimed that there is permanent disability to the extent of 25 per cent. The applicant accordingly claimed compensation of Rs. 2,26,380 from the owner of the vehicle and the insurance company with whom the truck was insured. The owner of the truck, though served, remained absent. The matter was accordingly proceeded ex pane against the owner. The insurance company, present appellant, by filing written statement at Exh. 6, denied the claim on all counts. It was contended that the driver of the truck was not having valid licence when the said accident took place. Secondly, it was contended that the vehicle was not used as per the permit and thirdly the vehicle being used without having the fitness certificate. It was claimed that the insurance company cannot be held responsible to pay the compensation, as claimed.
3. Considering the pleadings, issues were framed and the parties to the application were accordingly allowed to lead oral and documentary evidence and the Judge, Labour Court, after considering the evidence on record, allowed the said application by order dated 16.3.1999, concluding that there is 25 per cent permanent disability to the applicant reducing 100 per cent loss of earning capacity. He further concluded that the applicant is entitled to an amount of Rs. 2,71,756 with interest at the rate of 12 per cent per annum from 23.11.1996. The opponent Nos. 1 and 2 were accordingly directed to pay the above said amount to the applicant. A further direction was given to issue show-cause notice to opponent No. 1 as to why 50 per cent penalty should not be imposed on him in view of the provisions of Section 4-A(3) of the Workmen's Compensation Act. Being aggrieved by the said order dated 16.3.1999, the original opponent No. 2, insurance company, has filed the present appeal.
4. In the appeal, I heard Mr. Upadhye, Advocate for the appellant, original opponent No. 2 and Mr. N.G. Kale, Advocate for respondent No. 1, original applicant, at length. The respondent No. 2, owner of the vehicle, though served, remained absent.
5. It is submitted by Mr. V.N. Upadhye, Advocate for appellant that the order passed by the Judge, Labour Court, Latur, is not proper and justified. Firstly, according to him, the evidence of the applicant and the Medical Officer, who issued disability certificate, is not satisfactory and convincing and the court below has wrongly concluded that there is 25 per cent permanent disability and 100 per cent loss of earning capacity on account of the said disability. Secondly, according to him, the court below has not properly appreciated the provisions of sections 4, 12 and 14 of the Workmen's Compensation Act. Thirdly, according to him, even if the certificate issued by the Medical Officer is relied and taken into consideration, the compensation amount does not exceed Rs. 67,914. Lastly, according to him, the court below completely failed to consider the provisions of Section 4(1)(c)(ii) of the said Act. He accordingly requests to allow the appeal.
6. On the other hand, it is submitted by Mr. N.G. Kale, Advocate for respondent- original applicant that the order passed by the Judge, Labour Court, Latur is proper and justified.
7. Considering the submissions, firstly a reference is necessary to Section 30 of the Workmen's Compensation Act, 1923, which reads as under:
'Section 30. Appeals.-(1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely:
(a) an order awarding as compensation a lump sum whether by way of redemption of a half-monthly payment or otherwise or disallowing a claim in full or in part for a lump sum;
(aa) an order awarding interest or penalty under Section 4-A(3):
Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal, and in the case of an order other than an order such as is referred to in clause (b), unless the amount in dispute in the appeal is not less than three hundred rupees:
Provided further that no appeal shall lie in any case in which the parties have agreed to abide by the decision of the Commissioner, or in which the order of the Commissioner gives effect to an agreement come to by the parties:
Provided further that no appeal by an employer under clause (a) shall lie unless the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against.'
8. A reference is also necessary to Section 4, which reads as under;
'Section 4. Amount of compensation.--(1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely--
(a) Where death results from the injury--
an amount equal to fifty per cent of the monthly wages of the deceased workman multiplied by the relevant factor;
or
an amount of eighty thousand rupees whichever is more;
(b) Where permanent total disablement results from the injury--
an amount equal to sixty per cent of the monthly wages of the injured workman multiplied by the relevant factor;
or
an amount of ninety thousand rupees whichever is more;
Explanation I.-For the purposes of clause (a) and clause (b), 'relevant factor' in relation to a workman means the factor specified in the second column of Schedule IV against the entry in the first column of that Schedule specifying the number of years which are the same as the completed years of the age of the workman on his last birthday immediately preceding the date on which the compensation fell due.
Explanation II.-Where the monthly wages of a workman exceed four thousand rupees, his monthly wages for the purposes of clause (a) and clause (b) shall be deemed to be four thousand rupees only;
(c) Where permanent partial disablement results from the injury-
(i) in the case of an injury specified in Part II of Schedule I, such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury; and
(ii) in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury.'
9. After considering the above provisions, now the evidence on the record will have to be scanned and scrutinised so as to as certain whether the Judge, Labour Court, Latur, is justified in awarding compensation of Rs. 2,71,656 on account of injury sustained by the present respondent No. 1, original applicant.
10. On perusal of the pleadings, it is seen that applicant has claimed compensation under Section 4 of Workmen's Compensation Act to the extent of Rs. 2,26,380 and the justification for the said claim, according to the applicant was, that at the time of accident he was 18 years of age and was earning Rs. 2,000 per month as salary and was also getting Rs. 25 per day as bhatta. While giving other details in respect of the accident, manner in which it took place, he contended that truck bearing registration No. MHQ 2581 is owned by the original opponent No. 1 Vithal Boyane and on 21.10.1996, the applicant was on duty on the said truck as cleaner. It was further made clear that one Uttam Parkar was driving the said truck. The time was approximately 6.45 p.m. The truck was proceeding from Latur towards Ausa. On the way a bullock-cart came from opposite direction and in an attempt to avoid dash to the said bullock-cart, the driver of the truck could not control the truck and firstly given dash to the bullock-cart and thereafter to a tree by the side of the road and thus the accident took place. In the said accident, the applicant sustained multiple injuries. Crime No. 142 of 1996 was accordingly registered against the driver. It was contended that the said accident is the outcome of rash and negligent act on the part of the driver of the said truck.
11. So far as manner in which the accident took place and the vehicle involved in the accident is concerned, the said aspect is not much disputed. Even the evidence of applicant, in that respect, is consistent with material particulars and the documents on record, i.e., F.I.R., spot panchnama, etc. I thus find that the finding recorded by the court below that accident had taken place solely due to negligence on the part of the driver of the truck is definitely proper and justified. So far as the claim set-up by the applicant is concerned, according to him, the respondent No. 1 had agreed to pay Rs. 2,000 per month and bhatta of Rs. 25 per day. It was also claimed that the applicant is the only earning member in his family. It was accordingly submitted that the applicant is entitled to compensation of Rs. 2,26,380. It is also seen that the fact that applicant was working as cleaner at the relevant time is not much disputed. However, the other aspects about his age and salary needs to be considered with reference to the evidence adduced by the applicant in that respect and it is further necessary to see whether the claim, as submitted by him, is proper and justified.
12. The evidence of applicant is at Exh. 5. According to him, he was getting salary of Rs. 2,000 per month. In his evidence, he has not stated that he was getting bhatta of Rs. 25 per day, as alleged by him in the application. So far as salary of Rs. 2,000 is concerned, this aspect has also not been supported by any document nor any satisfactory evidence has been adduced in that respect. So far as nature of injury sustained by him is concerned, according to him, in the said accident, there was fracture to his left hand and left thigh. He took treatment in the hospital at Latur for about 2 months. He was operated for the said injury and nail was inserted. According to him, even after discharge from the Civil Hospital, he took treatment from Dr. Jadhav. He also made clear in his evidence that he could not walk without the crutches. In cross-examination, he stated that he does not know his date of birth. The applicant has examined Dr. Vishwanath Ramchandra Jadhav to prove the nature of injury sustained by him in the said accident. Evidence of Dr. Jadhav sufficiently makes it clear that on 22.10.1996, he examined the applicant. On his examination, he noticed: (1) fracture sharp femur left; (2) fracture of radius ulna right; and (3) knee stiffness. He further made clear that the applicant was operated for the said injury and nail was also inserted. The applicant was in the hospital as an indoor patient during the period from 22.10.1996 to 18.11.1996, i.e., for about 26 days. He further stated that on 27.8.1997, he issued disability certificate, Exh. 13 and according to him, there is a permanent disability to the extent of 25 per cent. In his evidence, he further made clear that the applicant is having difficulty to walk as he cannot walk speedily. He also stated that the applicant cannot work as cleaner as the said work requires lifting of heavy weight. However, in the cross-examination, he admitted that one Dr. Mhaske admitted the applicant in the hospital and the applicant was operated on 22.10.1996 by one Dr. Rankhamb. He also made clear that physiotherapy was advised to the applicant with a view to reduce the percentage of disability. According to him, he issued the disability certificate in his private clinic and there is no record about applicant's treatment in the private clinic before 27.8.1997. I have given a detailed reference to the evidence of the applicant, evidence of Medical Officer and to Exh. 13 with a view to see the justification given for awarding compensation of Rs. 2,71,656 by the Judge, Labour Court, Latur, when in fact an amount of Rs. 2,26,380 was claimed by the applicant. It is seen that the Medical Officer examined on behalf of the applicant has positively admitted in his cross-examination to the following effect:
'It is true that if the said patient is assigned any light work, he can perform the same job.'
13. This admission on the part of the Medical Officer, if read together with the certificate issued by him and the evidence adduced by the applicant, it is seen that the conclusion arrived at by the Judge, Labour Court, Latur, while assessing the compensation at Rs. 2,71,656 concluding that there is 100 per cent disability so far as loss of earning capacity is concerned, is definitely not proper and justified. Even, as already referred above, the evidence of the applicant about age and salary is vague and I am unable to understand as to how the court below has concluded about age and income of the applicant when there is no positive evidence to that effect. I find that the court below has also not properly considered the provisions of Section 4 while awarding the compensation. Thus, on close scrutiny of the evidence on the record, I find that the order passed by the Judge, Labour Court, Latur, is definitely not proper and justified and, therefore, the same needs to be set aside. Equally, it is not desirable to reject the application of present respondent No. 1, original applicant, as from the record, it is seen that he was on duty at the relevant time on the said truck as cleaner and he sustained injury in the said accident. It is, therefore, desirable to remand the matter to the Judge, Labour Court, Latur, with a direction to decide the same afresh.
14. In the result, First Appeal No. 173 of 1999 is partly allowed. The order passed by the Judge, Labour Court, Latur in Workmen's Compensation Application No. 95 of 1997 dated 16.3.1999 is set aside. The matter is remanded to the Commissioner, Workmen's Compensation, i.e., In-charge Judge, Labour Court, Latur, with a direction to decide the same afresh. Parties are directed to appear before the Judge, Labour Court, Latur, on 1.7.2004. Record and proceedings be sent back to the lower court. Pending civil applications do not survive and disposed of accordingly.