M/s New India Assurance Co. Ltd, having it’s Regd and Head office at New v. 1. 2. 3. Raju S/o Rajabhau Bilore, Age : 27
Case Details
1 F.A. No. 4099-2008.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 4099 OF 2008 WITH CIVIL APPLICATION NO. 5427 OF 2009, WITH CIVIL APPLICATION NO. 12094 OF 2008 M/s New India Assurance Co. Ltd, having it’s Regd and Head office at New India Assurance Building, 87 M.G. Road, Fort, Mumbai- 4000 01 Branch at Jalna and Divisional Office at Ajay Engg. Compound Dr. Rajendra Prasad Road, Aurangabad – 431 005 through it’s Senior Divisional Manager Vishwas S/o Bansi Gaikwad 54 Years .. Appellant (Orig. Ist Opponent) VERSUS 1. 2. 3. Raju S/o Rajabhau Bilore, Age : 27 Years, Occ. Nil, R/o Near Pangari Tq. Badnapur Dist. Jalna through its Next Friend Wife Ramabai Raju Bilore R/o. As above M/s Parwati Steel Re Rolling Mills Near Samrat Celender MIDC Area Alurangabad Jalna Road through Mitesh Vindroy Shri. Mitesh Vindroy Seth Age : Major, Occ. Business R/o Jalna Parwati Steel Re Rolling Mills Jalna. .. Respondents …..
Legal Reasoning
Shri. V. N. Upadhye, Advocate for the appellant Shri. R.R. Imale, Advocate for respondent No.1 ….. WITH 2 F.A. No. 4099-2008.odt 1. 2. 3. CIVIL APPLICATION NO. 9099 OF 2022 IN FIRST APPEAL NO. 4099 OF 2008 Raju s/o Rajabhau @ Rambhau Bilore, Age : 41 Years, Occ. Nil, R/o. Najik Pangari, Tq. Badnapur, District Jalna. ...Applicant VERSUS New India Assurance Company Limited, Through it’s Divisional Manager, Aurngabad. Ori. Appellant M/s Parwati Steel Re rolling Mills, Near Samrat Cylender, MIDC Area, Aurangabad Jalna Road, Jalna Through Mr. Mitesh Vindoroy Mr. Mitesh Vindroy Seth, Age : Major, Occ. Business, R/o. M/s Parwati Steel Re rolling Mills, Near Samrat Cylender, MIDC Area Aurangabad, Jalna Road, Jalna ... .. Respondents Shri. R.R. Imale, Advocate for the respondent No.1 Shri. V. N. Upadhye, Advocate for Appellant …. CORAM : S. G. DIGE, J. Reserved on 30.08.2022 Pronounced on : 19.10.2022 JUDGMENT :- Challenge in this appeal is to the Judgment and order rendered by the learned Commission for Workmen Compensation and Labour Judge Jalna (for short the Commissioner) whereby the Commissioner has awarded the 3 F.A. No. 4099-2008.odt compensation of Rs. 300288/- against the appellant and respondent No.2. Brief facts of the case are as under :- 2. Respondent No.1 (for short claimant) was working in the factory of respondent No.2. At the relevant time when he was working in factory suddenly a hot steel rod came on to his head and thereby he sufered serious injury. He was immediately shifted to Dr. Agrawal’s Hospital and thereafter Seth Nandlal Dhoot Hospital,Aurangabad. He was there as indoor patient for 17 to 18 days in unconscious condition. He was operated there. He has trachectomy tube in situ and has left hemiplegia. At the time of accident, he was 26 years old and drawing Rs. 5,000/- per month as wages. In the said accident he sufered 30% total permanent disability. 3. The claimant fled a claim petition before The Commissioner Compensation and Labour Judge, it is allowed. Against said Judgment and order this appeal. 4. It is contention of learned counsel for appellant that when a qualifed medical practitioner has certifed that there is 4 F.A. No. 4099-2008.odt 30% of permanent disability caused to the claimant in the said accident the Commissioner could not have been taken a diferent view holding that there was 100% functional disability caused to the claimant which is improper and illegal. Learned counsel further submits that the Commissioner has erred in not appreciating that the compensation or percentage of disability has to be assessed with the reference to the work or job, the workman concerned was doing at the time of accident and/or his capability to works on any other occupation. Hence requested to allow the appeal. 5. It is contention of learned counsel for respondent No.1 that the injury was caused to the head of the appellant. Due to the said injury left side of body of the appellant has got paralised, he has permanently disabled, a hole is fxed on respiratory track of the claimant, due to said hole he cannot speak properly. In the said accident, injury is caused to the brain of the claimant hence he is unable to walk properly and these facts are proved in the evidence of Doctor . Claimant was worker in the factory of respondent No.2 since accident he is unable to do any job. He has sufered 100% permanent disability. The order passed by the Commissioner is legal and valid. He relied on S. Suresh Vs. Oriental Insurance 5 F.A. No. 4099-2008.odt Company Ltd and Another 2009 DJLS (Soft) 1246. 6. I have heard both the learned counsel. Perused judgment and order passed by the Commissioner. The correctness of the impugned judgment in question is mainly on the ground that when doctor has given 30% permanent disability to the claimant, the Commissioner has considered 100% permanent functional disability. 7. To prove the disability the claimant has examined Dr. Dharmchand Gadiya at Exh. U-39. This witness has stated that due to accident left side of body of the claimant has become paralyzed because of which he has got permanent disability. The claimant is unable to do work as labour. Nothing elicited in the cross- examination of this witness. 8. Doctor Sameer Deshpande Exh. U-45 has stated that he works as ENT surgeon in Dhoot Hospital when the claimant was admitted in the hospital he was in unconscious stage. A surgery was performed on respiratory track of the claimant for better respiration. A hole was fxed on respiratory track of claimant it was necessary to save his life. This witness further stated that, due to said operation claimant was not in position 6 F.A. No. 4099-2008.odt to speak clearly. Due to head injury the left side part of body of the claimant has been paralyzed and he cannot perform work which he was earlier doing. Further operation is needed to close the hole fxed on respiratory track. Dr. Madhavan Gopalkrishnan Menon is examined at Exh. U-49 he is Neurologist. He has stated that, due to injury sustained on head of claimant, he is not in position to walk properly. Left part of the body is paralyzed. 9. From the evidence of these medical experts it reveals that due to head injury caused to the claimant, while working in the factory of respondent No.3, claimant has sufered paralysis to left part of his body. A hole is fxed on his respiratory track due to which, he is unable to speak properly. He is not in position to walk properly. It proves that he has got 100% functional disability due to the said accident. Though, certifcate of disability of 30% is issued, but from the evidence of medical experts it proves that there is 100% functional disability caused to the claimant. The Tribunal has passed a well reasoned order. From the above evidence, I come to the conclusion that view adopted by the Tribunal is correct. 10. The Hon’ble Apex Court in the case of S. Suresh 7 F.A. No. 4099-2008.odt Versus Oriental Insurance Co. Ltd and Another 2009 DGLS( Soft.) 1246 has held that :- ‘’when injury caused to the workmen prevent him from performing on account of amputation of his right leg below knee. Claimant is unft for the work of a driver, which he was performing at the time of accident resulting in the said disablement. Therefore, he has lost 100% of his earning capacity.’’ 10. The ratio laid down in this case is squarely applicable to the present case as in the present case, claimant was working as a worker in the factory. Due to said accident, he has sufered paralysis to left part of his body, a hole is fxed on his respiratory track, due to which he cannot speak properly, due to Injury to the brain he cannot walk properly. He is not in a position to do the work as earlier he was doing. Hence there is 100% functional disability. The appeal is devoid of the merit. 11.
Decision
In view of the above, I pass the following order :- ORDER (i) Appeal is dismissed. (ii) No order as to costs. 8 F.A. No. 4099-2008.odt (iii) Respondent No.1 is permitted to withdraw the amount deposited by the appellant. (iv) The pending Civil Applications if any, the same stand disposed of. ( S.G. DIGE,) JUDGE ysk