Shri Ashok Gangaram Katkar vs Prama Industries
2004 Latest Caselaw 491 Bom

JUDGMENT

D.Y. Chandrachud, J.

1. This appeal arises out of the decision rendered by the Commissioner for Workmen's Compensation on 24th May 1989 rejecting an application filed by the Appellant for compensation on account of an injury alleged to have been sustained in the course of employment. The Appellant was engaged by the Respondent in 1984. As would be noted in greater detail hereinafter, no letter of appointment or specific designation was given to the Appellant. The muster roll which was produced before the Trial Court in the course of the evidence, specifically leaves the nature of work and designation blank. According to the Appellant, he was working as a helper since 1984 and was earning an amount of Rs. 10/- per day as wages. On 20th October 1985, the Appellant was on duty at 9 a.m. and was working on a Power cutting machine. An accident occurred during the course of which, the fingers on the hand of the Appellant got cut in the machine. The Appellant lost three fingers of his left hand and one finger on his right hand. He was thereafter, taken for medical treatment to the Harjeevan Hospital at Pune where he was admitted between 20th October 1985 and 29th October 1985. The medical certificate was that the fingers on both the hands had to be amputated under general anaesthesia. A medical certificate was issued by the Sassoon General Hospital at Pune on 13th November 1987 certifying that the Appellant had suffered traumatic amputation of distant two phalanges of the second, third and fourth fingers as a result of which he was unfit for performing the job of a helper. On 9th January 1986, the Appellant complained to the Factory Inspector that he had not received any compensation for the injury and he thereafter lodged a claim for compensation on 13th March 1987 before the Commissioner for Workmen's Compensation.

2. The Respondent filed its Written Statement denying its liability to pay any amount on account of the injury sustained by the Appellant. In its written statement, the Respondent came out with the case that the Appellant was not a helper, but that he was only engaged as a trainee or as an apprentice and on 1st August 1985 he was only a learner. According to the employer, the Appellant suffered from constant perspiration and was, therefore, unable to properly lift any object. Hence, it was stated that the Appellant was orally warned not to perform any task on the machine without permission since he was in the habit of doing so. The defence of the Respondent was that it was the Appellant who had started the cutting machine and tried to cut & sheet without any specific direction and that his left hand slipped accidentally due to perspiration.

3. The Commissioner for Workmen's Compensation accepted the defence of the employer and dismissed the claim by a judgment and order dated 24th May 1989. The Commissioner was of the view that the evidence of the employer had to be accepted and that it was corroborated by the evidence of another workman. The Court was of the view that a prudent employer would not ask a helper to do any job on a machine which required expertise and that it appeared that the Appellant had worked on the machine overlooking the directions given to him. It is this finding of the Commissioner which is called into question in these proceedings.

4. The Appellant had before the Trial Court moved an application at Exh.9 for the production of (i) the muster roll and pay-sheet for 1985; (ii) the letter of appointment and (iii) the duty list. In response to his application, the Respondent produced the muster roll. However, neither the letter of appointment, nor the duty list came to be produced. In so far as the muster roll is concerned, it is available in the record and proceeding. The muster roll shows that the nature of work and designation in respect of the Appellant is left blank. The Respondent had initially come out with the case that the Appellant was not even a helper and that he was engaged as a trainee or an apprentice. This case was obviously given up in the course of evidence for the proprietor of the Respondent, Shri Mahadeo Yellappa Bombale, who deposed in evidence stated that the Appellant had been engaged since 1985 as a helper. A perusal of the evidence of the proprietor would show that no employee was given specific duty list in writing. The witness admitted that the designation of the Appellant is not mentioned in the muster. Though his case in the written statement was that the Appellant was a trainee, in his evidence, he says that there was no trainee in the establishment at all. What is most important is that the witness deposed that he was personally not present when the accident took place at the work place and that he had not, therefore, directed the Appellant to work on the cutting machine. Since at the material time, the establishment was run as a partnership, it was stated that another partner was in the factory and it was he who was Giving directions about the work. The partner who had actually given directions, never stepped into the witness box. The witness who deposed on behalf of the Respondent had absolutely no knowledge about the accident since he was not present at the work site. Similarly) the second witness who deposed on behalf of the Respondent was a co-worker who had not seen how the accident occurred. He had joined the establishment as a helper barely 5 or 6 months prior to the Appellant and his evidence shows that he was doing spotting, cutting, bending, notching and welding. The witness stated that he was unable to state as to who had asked the Appellant to work on the cutting machine. In the examination-in-chief, the witness sought to contend that the Appellant had been asked not to work on the cutting machine as he perspired on his palms.

5. In so far as the Appellant is concerned, he duly deposed in support of his case stating that an accident took place when he was on duty and was working on the Power cutting machine. The Appellant produced a certificate in support of his age as well as a certificate from the Sassoon General Hospital in regard to the injury sustained by him. The Appellant denied that he was a trainee. He similarly denied that he sufferer perspiration on his palms and that he was asked not to work on the cutting machine.

6. In my view, learned Counsel appearing on behalf of the Appellant is justified in urging before the Court that the Commissioner for Workmen's Compensation was clearly in error in accepting the defence of the Respondent that the Appellant had been specifically directed not to work on a cutting machine despite which he had proceeded to do so. Before the Trial Court no duty list was forthcoming. No appointment letter was produced on record and it is an admitted position that no designation whatsoever was assigned to the Appellant by the employer. The defence that the Appellant was asked not to work on the cutting machine was, therefore, a selfserving attempt to avoid the statutory liability to pay workmen's compensation to the Appellant. That defence was sought to be sustained on the specious ground that the Appellant was suffering from perspiration OP his palms and, therefore, was asked not to work on the cutting machine. The proprietor of the

Respondent Mho stepped into the witness box was not present on the date when the accident took place. Even the co-workman was unaware of the circumstances in which the accident took place. On the contrary the evidence of the co--worker shows that though he was appointed only a few months prior to the Appellant he was carrying out work of a varied nature including work on the machine. There was, therefore, no reason to discard the testimony of the Appellant. The work which was carried out by the Appellant was in the course of his employment and the injury which occurred was one which arose out of the employment.

7. Section 3(1) of the Workmen's Compensation Act, 1923 provides thus:

"3. Employer's liability for compensation.-

(1) If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter."

The proviso thereto excludes the liability of the employer in certain eventualities. Clause (b) thereof is as follows:

"(b) in respect of any injury, not resulting in death or permanent total disablement caused by an accident which is directly attributable to -

(ii) the wilful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workmen."

8. In the present case, the accident, for the reasons noted above, must be held to have arisen out of and in the course of employment. The Respondent was liable to pay compensation in accordance with the provisions of the Act. The Responded failed to establish that there was any wilful disobedience by the workman of any order "expressly given". There was no rule "expressly framed" that was produced on the record. The employer on the basis of the evidence which was adduced, failed to establish an exclusion of liability under proviso (b)(ii). The burden of establishing the existence of circumstances which would lead to the invocation of the exclusion is a heavy burden which is cast upon the employer. The provisions of the Act are enacted in the interest of industrial, safety and security and provide compensation to workmen who sustain injuries in the course of employment. An exclusion of liability cannot lightly be presumed in the absence of cogent evidence on the part of the employer. Such evidence is not forthcoming in the present case.

9. In so far as quantification of the compensation is concerned, Section 2(1)(g) defines the expression "partial disablement" as such as reduces the earning capacity of a workman in every employment which he was capable of undertaking at that time. However every injury provided in Part II of Schedule I is deemed to result in permanent partial disablement. The injuries listed in Part II of Schedule I include a loss of three fingers of one hand. In such a case, the percentage of loss of earning capacity is quantified at 30% in the Schedule. The quantification of the compensation has to be" arrived at in accordance with the provisions of Section 4. Section 4(1)(c) provides for compensation where permanent partial disablement results from the injury. In the case of an injury quantified in Part II of Schedule I, the compensation has to be such percentage of the compensation which would have been payable in the case of a permanent total disablement as specified therein as being a percentage of the loss of earning capacity. Therefore, in the first instance, what has to be computed is the compensation on account of permanent total disablement. At the material time when the accident took place in 1985, the compensation that was provided for was an amount equal to 50% of the monthly wages of the injured workman multiplied by the relevant factor or an amount of Rs. 60,000/- whichever is more. The workman in the present case was receiving daily wages of Rs. 10/-. The relevant multiplier in the present case is specified in Schedule VI. Since the workman completed 19 years, the multiplier is 225.22. In the present case, therefore, the total compensation under Section 4(1)(d) would be the compensation of Rs. 60,000/-, the higher of the two amounts specified therein. In view of the provisions of Section 4(1)(c), the Appellant would be entitled to that proportion of the amount of Rs. 60,000/- as corresponding to the loss of earning capacity specified in Part II of Schedule I corresponding to the injury sustained by the Appellant. 30% of Rs. 60,000/- works out to Rs. 18,000/-. The Appellant is, therefore, entitled to the aforesaid compensation. In addition, at the material time, Section 4A of the Act provided for interest at the rate of 6% per annum upon the failure of the employer to pay the compensation within a period of one month on which it fell due. In the circumstances, the Respondent shall also be liable to pay compensation at the rate of 6% per annum on the amount of compensation quantified at Rs. 18,000/- upon the expiry of one month after the date of the accident.

10. This First Appeal is accordingly allowed. The judgment and order of the Commissioner for Workmen's Compensation is quashed and set aside. The Appellant shall be entitled to compensation quantified at Rs. 18,000/- and to interest therein upon the expiry of the period of one month after the date of injury (20th October 1985) at the rate of 6% per annum until payment or realisation. The amount as aforesaid shall be paid within a period of 8 weeks from today. The aforesaid direction would be without prejudice to the quantification of the penalty that may be payable by the Respondent under the provisions of Section 4A. Under Section 4A(3)(b) a penalty has been provided for where there is no justification for the delay on the part of the employer. Under the proviso thereto, an order for the payment of penalty shall not be passed without giving a reasonable opportunity to the employer to show cause. Since the employer has remained absent at the hearing before this Court, the Commissioner is directed to adjudicate upon the penalty, if any, that is payable with due notice to the Respondent within a period of three months from today. The First Appeal is allowed in the aforesaid terms, with costs.

11. Parties be given copies of this order duly authenticated by the Sheristedar/Personal Secretary of this Court.