Allowed

Santosh Vithal Shelke v. Noushad Siddiqui @ Naoushad Ahmed Irshad Ahmed Siddiqui and Anr.

Bombay HC18 Jun 2012FA/99/2012

Case brief

AI extract

What is this about?

In a first appeal under the Workmen's Compensation Act, the High Court affirmed that a driver who lost complete vision in the right eye and surrendered his license is unfit for work. Consequently, the court recalculated compensation from 40% to 10% loss of earning capacity, granting the full claimed amount.

What did the court decide?

Compensation increased from Rs.3,68,909/- to Rs.9,22,272/- considering 100% loss of earning capacity.

Santosh Vithal Shelke Vs Noushad Siddiqui @ Naoushad… — Service and Employment | Bombay HC (2012)

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1 F.A.No.99/12

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unreported

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IN THE HIGH COURT OF JUDICATURE AT

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BOMBAY

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BENCH AT AURANGABAD.

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FIRST APPEAL NO.99 OF 2012.

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Santosh S/o Vithal Shelke,
Age 38 years, Occ.Nil,
R/o Kanhurpathar Tq.Parner,
Dist.Ahmednagar.

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... Appellant.

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Versus

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1. Noushad Siddiqui @ Naoushad Ahmed
S/o Irshad Ahmed Siddiqui (Prop.)
Siddiqui Tours and Travels,
R/o Diamond UnnatiMitra Mandal,
Opp.Sunahari Yade, Plot No.301,
Janardhan Patil Marg,
Near Diamond Garden, Chembur,
Mumbai-400 071.

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2.Divisional Manager,
The New India Assurance Company
Ltd., Near Hotel Ashoka,
Nagar-Aurangabad Road,
Kings Road, Ahmednagar. ... Respondents.

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Mr.D.R.Markad, advocate for the Appellant.
Mr.V.R.Mundada, advocate for the Respondent No.2.

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CORAM : S.V.GANGAPURWALA,J.

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2 F.A.No.99/12

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 Date : 18.06.2012.

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ORAL JUDGMENT :

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1.Heard.

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2.With the consent of the parties, the
appeal is heard finally.

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3.The appellant is the original claimant.
He had filed application under the Workmen's
Compensation Act, claiming compensation of Rs.
9,22,272/- (Rupees nine lacs twenty two thousand
two hundred seventy two) on the ground that in
the accident suffered during the course of
employment, his right eye was completely damaged
and also injury is caused to the left eye. The
appellant was working as a driver. In view of
the loss of vision to right eye, he had
surrendered his license. The Commissioner,
Workmen's Compensation considered the loss of
earning capacity to the extent of 40%, so also
physical disability to the extent of 40% and
awarded compensation of Rs.3,68,909/-. Aggrieved
thereby, the present appeal.

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3 F.A.No.99/12

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4.Mr.Markad, learned counsel for the

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appellant submits that once the appellant has
lost complete vision of one eye, he is not
entitled to drive the vehicle. He is unfit to
work as driver. In view of that 100% disability
and 100% loss of earning is to be considered.
Even if the disability certificate is to the tune
of 40%, the right eye is totally damaged and the

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total vision of the right eye is lost and driving
license is surrendered. In view of that, he can
not work as a driver and as such 100% loss of
earning is required to be considered. The
learned counsel relies on the judgment of this
Court in a case of "Shaikh Salim Ramzan Vs. Ashok
Beniram Kothawade and another"reported in
2011(3) Mh.L.J. 275.

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5.Mr.Mundada, learned counsel for the
Respondent Insurance Company vehemently opposes
the appeal and submits that even if it is assumed
that the total vision of the right eye is lost,
still, it is not a case that the RTO office has
cancelled his license. At a belated stage only
with view to claim compensation, the appellant

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4 F.A.No.99/12

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appears to have surrendered the license. The
learned counsel contends that there is no
evidence on record to show that his services as a
driver are discontinued. He can still perform his
activity and even the appellant can do the other
job. The case of the appellant can not be
considered as that of 100% disability. Even the
income of Rs.8,000/- (Rupees eight thousand) p.m.
is not proved. Except the statement of the
employer in the Written Statement, there is no
positive evidence in this regard. The learned
counsel submits that the compensation arrived at
by the Commissioner is correct. 40% disability
is rightly considered.

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6.With the assistance of the learned
counsel, I have gone through the judgment.

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7.This Court vide order dated 3.2.2012,
had issued notice for final disposal to the
Respondents. Pursuant thereto, the matter is
heard finally.

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8.The fact that the appellant has lost

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5 F.A.No.99/12

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total vision of the right eye is a matter of
record and is accepted by the Commissioner. It
has also been accepted by the Commissioner that
the salary/income of the appellant was Rs.8,000/-
(Rupees eight thousand) p.m. as a driver. The
said part of the judgment is not assailed by any
party.

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9.In view of the above, the only dispute
that would remain is about the extent of the
disability and/or the loss of earning.

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10.This Court in a case of "Shaikh Salim
Ramzan Vs. Ashok Beniram Kothawade and another"
referred supra has observed thus :

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"In the first authority Hon'ble
Aurangabad Bench of the Bombay High
Court has held that in case where
driver had lost vision of his right
eye and had to surrender his license
as he was unable to perform the duty
as a Driver, it had resulted in 100%
loss of earning capacity and the

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6 F.A.No.99/12

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same was accepted. The second
authority of Hon'ble Supreme Court
is on the point of liability of the
employer to pay interest and penalty
and also on the point as to how the
total disablement of person can be
assessed. In the third authority
the Hon'ble Orissa High Court has
considered that the aspect how
interest is to be awarded on the
amount payable as compensation by
the insurance company. In the last
authority the Hon'ble A.P. High
Court has held that when the Driver
had incurred permanent bodily
disability to the extent of 30%.
But, he had become disabled to drive
the vehicle as a Driver, his loss of
earning capacity is to be treated as
100%."

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11.The said judgment is delivered by me.
The facts in the said case and the present case
are identical.

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7 F.A.No.99/12

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12.In view of the above, it will have to
be held that the appellant because of the loss
of complete vision of right eye has been
incapacitated for all work as a driver and now he
is unfit to work as a Driver. He can not now
undertake avocation as driver and as such 100%
loss of earning will have to be considered.

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13.In light of the above and even as per
calculations made by the Commissioner Workmen's
Compensation if the 100% compensation is to be
considered, the amount of compensation comes to
Rs.9,22,272/- (Rupees Nine lacs twenty two
thousand two hundred seventy two).

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14.In view of the above, the appeal is
allowed. Instead of compensation of Rs.
3,68,909/- (Rupees three lacs sixty eight
thousand nine hundred nine) awarded by the
Commissioner, the appellant is entitled for
compensation of Rs.9,22,272/- (Rupees nine lacs
twenty two thousand two hundred seventy two).
Save and except the aforesaid modification, the

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8 F.A.No.99/12

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rest of the order remains unchanged. No costs.

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 (S.V.GANGAPURWALA,J.)

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asp/office/Fa9912

Santosh Vithal Shelke v. Noushad Siddiqui @ Naoushad Ahmed Irshad Ahmed Siddiqui and Anr.

Case brief

What is this about?

What did the court decide?

Santosh Vithal Shelke v. Noushad Siddiqui @ Naoushad Ahmed Irshad Ahmed Siddiqui and Anr.

Case brief

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What did the court decide?

What the court decided

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