M/S New India Assurance Company Ltd. Vs Shaikh Jamal Shaikh Hussain and Another.

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FA NO.659/1997

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1

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

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FIRST APPEAL NO.659 of 1997

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M/s New India Assurance Co.Ltd.
having its Regd. and Head Office at
New India Assurance Building, 87, M.G.Road,
Fort, Bombay 411 001, Branch office at
ADALAT Road, Aurangabad 431 005
and Divisional Office at Adalat Road,
Ajay Engg.Compound, Aurangabad 431 005
through its Sr.Divisional Manager and
Duly Constituted Attorney Mr.Syed Khalil
s/o Syed Chand.

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...APPELLANT

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(Orig.2nd respondent)

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VERSUS

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1. Sk.Jamal s/o Sk.Hussain, Age 40 years, Occ. Driver, r/o Labour Colony, Nanded, Dist. Nanded.

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...Orig.Applicant.

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(2. Sanjay s/o Vithalsingh Rajput, Age Major, Occ. Business r/o. Aghor, Post Rotegaon, Tq. Vaijapur, Dist. Aurangabad.)

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...Orig.1st respondent.

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(Appeal dismissed against
Respondent no.2 as per
 Registrar's order dt.7.8.07)

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...RESPONDENTS

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...

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Mr. V.N.Upadhye, Adv., for the appellant.
Smt. A.N.Ansari, Adv., for respondent no.1.

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...

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2

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FA NO.659/1997

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CORAM: K.U.CHANDIWAL, J.

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 DATE : January 30th, 2014

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***

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ORAL JUDGMENT:

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1. Heard. The appeal is admitted on
7.11.1997. The appellant Insurance Company
questions validity of the award in WCFA No.3/1992
dated 31st July, 1997 recorded by the learned
Civil Judge, Senior Division, Nanded, as Ex
Officio Commissioner under Workmen's Compensation
Act, Nanded, awarding Rs.84,720/- plus penalty of
Rs.42,360/-; total Rs.1,27,080/- with interest at
the rate of 6 per cent per annum on the
compensation.

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2.Respondent Sk.Jamal was a driver on
Truck MWP 1568 on monthly salary of Rs.1200/-.
He was getting daily Bhatta of Rs.10/-. On
16.8.1991, he was driving the vehicle on Nanded-
Basmat road and another truck bearing No.ATG
9252, coming from opposite direction, dashed him;
resultantly, the truck suffered heavy damages.
The Driver Sk.Jamal was required to be taken to
the hospital. He was in hospital from 16.8.1991
to 3-10-1991, as an indoor patient. He was
provided regular medical treatment from outside.
He sustained fracture to his right leg i.e. femur
of right side of lower limb. He asserted, on

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3 FA NO.659/1997

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account of such accident, he has suffered
permanent disability. He was unable to walk and
stand on his right feet. He has been deprived of
his profession. He asserted, in tune with
Section 4 of the Workmen's Compensation Act, he
is entitled for compensation of Rs.1,38,127/-.

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3.Mr. Upadhye, learned Counsel for the
appellant does not seriously dispute the accident
and injuries suffered by Driver Sk.Jamal. His
grievance is, there was no certification of
permanent disablement to the driver, to bring his
case within the bracket of Section 4 of the
Workmen's Compensation Act, which has different
heads for enabling / deciding the payment
structure. According to him, for want of such
certificate, there could not be an assessment and
fixing of liability to the Insurance Company.

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4. The original record is perused. There
is certificate at Exhs. 68 and 69 issued by the
Medical Officer Sri S.G.G.S.Memorial Hospital,
Nanded, to the injured driver indicating that he
has suffered permanent total disability due to
fracture of femur (right side) of lower limb,
operated nails (rod) passed in femur (right)
during operation. The other certificate issued
in Form B under Rule 291(3) shows that he was
admitted in hospital on 16.8.1991 and discharged
on 3.10.1991, there was destruction or permanent

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4 FA NO.659/1997

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impairing of the powers of any member or joint,
MLC X-ray No.6212, 6213 shows evidence of
fracture of femur (right). The learned Judge has
referred to these certificates and was conscious
that the permanent disability certificate was not
produced. The objection about acceptance of
these certificates for want of thumb impression
of the claimant, was rightly turned down, and it
should not have been insisted. The driver has
sustained non scheduled injury. Section 4(1)(d)
deals with temporary disablement, whether total
or partial, resulting from an injury, and the
loss of earning capacity is also discussed. In
that situation, the table shows, a half monthly
payment of the sum equivalent to twenty five per
cent of monthly wages of the workman to be paid
in accordance with the provisions of sub-section
(2) of Section 4.

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5.For the purposes of present case, no
need to reproduce sub-Section (2) of Section 4.
Taking these aspects into consideration, the
evidence placed on record illustrate that the
salary of the Driver was Rs.1,200/-. The learned
Judge has considered it as Rs.1,000/- and,
consequently, half of the salary is Rs.600/- and
twenty five per cent comes to Rs.300/-. The
relevant factor for age of 45 is 169.44.
Consequently, the award of compensation warrants
modification from Rs.84,720/- to Rs.50, 832/-.

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5 FA NO.659/1997

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Learned Commissioner has awarded 50 per cent of
the penalty at Rs.42,360/-, however, owing to
afore referred calculations, it should be Rs.
25,416/-. The penalty in terms of Section 4(a)
could not be resting on the appellant Insurance
Company as there was no communication in
immediate past of releasing such penalty. It
was basic burden of the employer. Consequently,
the award for penalty warrants modification,
exonerating the appellant Insurance Company.

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ORDER

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a)The appeal is partly allowed. No order

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as to costs.

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b)The compensation is modified to Rs.
50,832/- with interest at the rate of 6 per cent
per annum.

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c)The owner of the vehicle shall be liable
to pay penalty of Rs.25,416/-.

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d)The claimant driver has received Rs.
20,000/- from this Court from the deposited
amount. He shall be paid balance amount with
interest to meet the figure of modified award.
Residue, if any, be reimbursed to the appellant
Insurance Company with interest.

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(K.U.CHANDIWAL)

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JUDGE

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...

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AGP/659-97fa

M/S New India Assurance Company Ltd. v. Shaikh Jamal Shaikh Hussain and Another.

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M/S New India Assurance Company Ltd. v. Shaikh Jamal Shaikh Hussain and Another.

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