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FA/60520/2003 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 605 of 2003
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
RAGHAV
DAYABHAI SATWARA - Appellant(s)
Versus
MULJI
NATHABHAI SATWARA PROPRIETOR RAVINA CAST & 2 - Defendant(s)
=========================================================
Appearance
:
MR
AR SHAIKH for
Appellant(s) : 1,
MR RC KAKKAD for Defendant(s) : 1 - 2.
MR
HASMUKH THAKKER for Defendant(s) :
3,
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CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date : 11/08/2008
ORAL
JUDGMENT
1.0. This
appeal is directed against the judgment and award dated 22nd
January, 2002 passed by the learned Ex-Officio Commissioner for
Workmen’s Compensation and Labour Judge, Labour Court, Jamnagar in
Workmen’s Compensation (Non-Fatal) Case No. 28 of 1997 whereby, the
application was partly allowed and the respondents were jointly and
severally liable to pay to the appellant Rs.11,200/- by way of
compensation with running interest @ 12% from the date of the
accident till realization.
2.0. The
short facts of the case are :-
2.1. The
appellant was an employee of the respondent no.2. While he was
discharging his duty on 18th January, 1996, the appellant
met with an accident and sustained severe injuries, where the phalanx
of his left hand was cut. The appellant, therefore, preferred an
application before learned Ex-Officio Commissioner for Workmen’s
Compensation and Labour Judge, Labour Court, Jamnagar in Workmen’s
Compensation (Non-Fatal) Case No. 28 of 1997, for grant of
compensation on the ground of permanent disability sustained by him
while discharging his duty.
2.2. The
learned trial Judge, after hearing the parties and after considering
the evidence on record, partly allowed the application and granted
Rs.11,200/- by way compensation with running interest @ 12% from the
date of accident till realization.
2.3. Being
aggrieved and dissatisfied with the impugned award, the appellant has
approached this Court by way of this appeal.
3.0. Heard
learned counsel for the respective parties. It is an admitted
position that the workman was earning Rs.2,600/- p.m. towards salary.
In absence of any evidence on record, the Court below has assessed
the age of the workman at the relevant time at 20 years on the basis
of the medical certificate at Exh. 31. In my opinion, the said
assessment arrived at by the Court below is just and reasonable.
3.1. In
the impugned award, the Court below has recorded finding that the
workman had totally lost the phalanx of his left hand, but assessed
the percentage of loss of earning capacity @ 5%, as no evidence was
led by the appellant towards the same. However, the said conclusion
reached by the Court below is erroneous. In view of that, the Act
provides the percentage of loss of earning capacity @ 9% in such
cases.
3.2. Since
workman was aged 20 years at the relevant time, the factor of 224
would be applicable as per the provisions of the Act. Therefore, the
workman shall be entitled for compensation of Rs.1,000/- towards loss
of earning capacity being 50% of Rs.2,000/-. The relevant factor is
224 and, therefore, the amount comes to Rs.2,24,000 [224 x 1000].
Therefore, the total loss of earning capacity would come to
Rs.20,160/- [i.e. 9% of Rs.2,24,000/-].
4.0. In
the result, the appeal is partly allowed. The impugned award of the
Court below is modified to the extent that the workman shall be
entitled for an additional amount of Rs. 8,960/- with running
interest @ 12% from the date of application till realization. The
Insurance Company shall pay additional amount of Rs.8,960/- to the
workman, within three months from the date of receipt of this order
and the interest amount shall be paid by the original owners, within
three months thereafter. No order as to costs.
[K.S.
JHAVERI, J.]
/phalguni/
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