NIRBHAY MANUBHAI PATEL Vs. KAMLESHKUMAR MOTIBHAI PATEL

JUDGEMENT

(1.) By way of this First Appeal, the appellant has challenged the award dtd. 3/1/2019 passed in M.A.C.P. No. 1631 of 2013 (Old MACP) Case No. 838 of 2010 by MACT, (Aux.), Modasa whereby the Tribunal was pleased to partly allowed the claim of grant of Rs.4,36,070.00 with 9% interest.

(2.) When the matter was taken up for hearing today, learned advocate Mr. Manish Patel appearing for the appellant who are seeking enhancement, upon instructions from the appellant made a statement at bar that he is confining the present appeal only to the extent of grant of compensation in respect of the partial disability of right upper limb and lower limb of the present appellant, which the Tribunal has considered to be 18% and granted sum of Rs.1,80,000.00 towards compensation for the same and therefore, the appeal was heard and decided only on the aforesaid aspect as rest of the challenge to the award has not been pressed by learned advocate Mr. Patel.

(3.) Learned advocate Mr. Manish Patel for the appellant drew attention of this Court to the paragraphs no. 9.1 and 9.2 of the award and pointed out that the Tribunal on the basis of his disability certificate which was produced at Exh. 57 came to the conclusion that the claimant has sustained partial disability and according to Kessler partial disability of right upper limb and lower limb was about 39.83% but at the same time, since, the learned advocates for the parties were agreed to have assess permanent partial disability of the claimant to the tune of 18% of whole body, the case of the appellant was considered as if he has sustained 18% of partial disability. Thereafter, the Tribunal considered the judgment in case of Mallikarjun V/s. Divisional Manager, National Insurance Company Ltd. and another reported in 2013 ACJ 2445 and based upon the aforesaid judgment, the Tribunal while considering the fact that Hon'ble Supreme Court held that if disability is above 10% and up to 30% to the whole body, a compensation of Rs.3,00,000.00 should be awarded, instead of awarding Rs.3,00,000.00, the Tribunal has considered Rs.10,000.00 per 1% disability and accordingly for 18% of disability granted Rs.1,80,000.00 which is not in accordance with the ratio laid down by the Hon'ble Supreme Court and therefore, the aforesaid error committed by the Tribunal is required to be rectified and enhancing the permanent disability compensation suitably.