General Manager And Anr. vs Porarapu Durgayya Rajayya
2004 Latest Caselaw 338 Bom

JUDGMENT

Kharche S.T., J.

1. By invoking the jurisdiction of this Court under Section 30 of the Workmen's Compensation Act, 1923 (for short W.C. Act), the management, i.e., the General Manager of Western Coalfields Ltd. (for short W.C.L.) has filed this appeal challenging the Award dated 4.5.1991 passed by the Commissioner, Workmen's Compensation, Chandrapur, in W.C.C No. 45(19)/ 86, directing the management to pay compensation of Rs. 42,360/- with interest at 6% per annum from the date of accident till realisation.

2. Brief facts are as under:

The respondent is an employee as a coal filler since 1965 in Hindustan Lal Peth Colliery No. 1. The employee was met with an accident while he was on duty on 28.7.1985 at about 1.00 p.m. While he was filling the coal in the first shift, a big heap of coal from the roof had fallen on his left shoulder causing him serious injuries. He was unable to lift anything with his right hand and, therefore, he was admited at Lalpeth dispensary under the management of the appellants where he took medical treatment for about 40 days. Thereafter also he took treatment at Lalpeth colliery dispensary for about 2V£ month as outdoor patient. In November, 1985 he reported on duty and he was provided a light job for the period of about a month. On 28.12.1985, the employee was directed to consult the in-charge, Rehabilitation Centre, Chhindwara, for physiotherapy and he was asked to report within a week. The employee complied the instructions and the Medical Superintendent, Wardha Valley Area Hospital again instructed the employee on 15.1.1986, to approach Chhindwara Hospital for further treatment. However, no required facility was made available to him for going to Chhindwara and, therefore, the employee was constrained to take treatment from the private hospital. The employee contended that he was not provided the light job though he had suffered permanent disablement and he was unable to work his regular job as a coal filler and, therefore, he was again asked to carry out the work of attendant up to 24.12.1985. The management was called upon to give provisional compensation but in vain. Ultimately, the employee had filed an application under Section 10(1) of W.C. Act claiming compensation of Rs. 96,580/-.

3. The management resisted the claim of compenstion on the ground that the employee did not comply with the directions issued by the management as is required under Section 11 of the W.C. Act and, therefore, he is not entitled to receive the compensation and he also did not suffer from any permanent or partial disablement, and, therefore, his application was liable to be dismissed.

4. The learned Workmen's Compensation Commissioner framed the issues and on considering the evidence adduced by the employee and his witnesses came to the conclusion that the employee has proved that he has sustained permanent disablement due to the accident in question while he was on duty due to the fall of roof of the mine on his shoulder and that his age on the date of accident was 45 years, and he was drawing the wages of Rs. 1,900/- per month and, therefore, he was entitled to claim compensation. Consistent with these findings, the Commissioner awarded compensation of Rs. 42,360/- with interest at 6% per annum from the date of the accident till realisation. This order is under challenge in this appeal.

5. Mr. Mehadia, learned Counsel for the management, contended that the employee had examined Dr. Raut as his witness and the evidence of the medical expert showed that the employee was fit to join his duties from 3.5.1986, and that the evidence of the medical expert did not show that the employee has suffered any permanent or partial disablement. In these circumstances, since the employee did not suffer from permanent or partial disablement within the meaning of Section 2(1)(i) read with Section 3 of W.C. Act, he is not entitled to receive any kind of compensation and the Commissioner has committed an error of law. The next contention of Mr. Mehadia is that though the employee was required to take medical treatment at the Rehabilitation Centre, Chhindwara, he disobeyed the directions given to him in that context and in such circumstances, the impugned order passed by the Workmen's Commissioner is not sustainable in law.

6. Mr. Dixit, learned Counsel, for the employee contended that the employee had to take private medical treatment with Dr. Raut who has issued the medical certificate on 2.5.1986, mentioning therein that the employee has sustained the injuries and took treatment with him for the period 10.1.1986 to 2.5.1986. He contended that the employee was unable to carry out the work due to the injuries sustained by him and it was the management who did not provide proper medical treatment to him at the Rehabilitation Centre by helping him in monetary respect for travelling expenses, etc. He contended that the Commissioner was perfectly justified in reaching the conclusion that the employee has sustained permanent disability due to the accident and that considering the age of the workman and the wages which he was drawing, has awarded the compensation with interest. He, therefore, contended that no case has been made out by the management for interference into the impugned award and the appeal may kindly be dismissed.

7. This Court has given thoughtful consideration to the contentions canvassed by the learned Counsel for the parties. It is not in dispute that the respondent was employed as a coal filler some time in the year 1965 at Hindustan Lalpeth Colliery No. 1 of W.C.L., Chandrapur and he was drawing the monthly wages of Rs. 1,900/-. It is also not in dispute that the age of the employee was about 45 years at the time of the accident and the unfortunate accident occurred on 28.7.1985, when the employee was on duty in the first and at the time a big heap of coal from the roof of the mine had fallen on his shoulder causing him injuries.

8. Section 2(1)(i) defines total disablement, which reads thus:

"total disablement" means such disablement, whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement:

(Provided that permanent total disablement shall be deemed to result from every injury specified in Part I of Schedule I or from any combination of injuries specified in Part II thereof where the aggregate percentage of the loss of earning capacity, as specified in the said Part II against those injuries, amounts to one hundred per cent or more.)

9. It is necessary to reproduce Sub-section (1) of Section 3 of W.C. Act which reads thus:

"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:

Provided that the employer shall not be so liable-

(a) in respect of any injury which does not result in total or partial disablement of the workman for a period exceeding (three) days;

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

(i) the workman having been at the time thereof under the influence of drink or drugs, or

(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 workman, or

(iii) the wilful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workman.

10. Simple reading of the aforesaid provision of law would reveal that if any workman suffers any injury which does not result in total or partial disablement of the workman for a period exceeding three days then the employer shall not be liable to pay compensation. Whereas the definition of the total disablement would clearly reveal that the total disablement means such disablement, whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement.

11. In the present case, it is not in dispute that the respondent was employed as a coal filler in the year 1965 and was continuously in service till the date of the accident. On 27.8.1985, he was directed to report at the Rehabilitation Centre, Chhindwara, for the purpose of physiotherapy. The evidence would reveal that the employee had visited that Rehabilitation Centre Chhindwara as per the directions issued on 28.12.1985. The management again issued directions on 15.1.1986 calling upon him to again report at the Rehabilitation Centre, Chhindwara but he did not go there and resorted to take medical treatment from the private doctor.

12. The evidence of Dr. Raut would reved that the employee had taken treatment with him for the period 10.1.1986 to 2.5.1986 and he had also issued the medical certificate dated 2.5.1986. The contents of the certificate are as under:

I herby certify that Shri Patrup Durgayya was under my treatment from 10.1.1986 till today 2.5.1986 for painful arch syndrome (post traumatic). He may join his duties from tomorrow, i.e., 3.5.1986 and advised light work for one month.

13. The evidence of Dr. Raut would clearly reveal that the employee took treatment with him for the period 10.1.1986 to 2.5.1986 and that the employee was suffering from painful arch syndrome (post traumatic). No doubt, Dr. Rahut certified that the employee was fit to join his duties with effect from 3.5.1986 but that does not mean that the employee was. able to carry out the work which he was doing before the accident. Though Dr. Raut admits in his cross-examination that the employee was fit for doing original duties, that does, not mean that Dr. Raut knew what were the actual duties assigned to the employee before the accident when he reported on duty some time in the month of November, 1985.

13-A. The medical certificate has been proved through the evidence of Dr. Raut. It is pertinent to note that the accident occurred on 27.8.1985 and soon after the accident the employer was required to take medical treatment at the dispensary situated at Lalpeth, which is under the management of the employer, for about 40 days. Though the employee is said to have joined the duty in November, 1985, he had to take treatment at the Lalpeth Colliery for about 2lA months as outdoor patient and thereafter he took medical treatment of Dr. Raut. Having regard to the nature of injuries sustained by him, it cannot be said that he did not suffer even partial disablement.

14. In that view of the matter, it would clearly reveal that the employee has sustained partial disablement within the meaning of Section 2(1)(i) which contemplates that total disablement means such disablement, whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement. However, the employer cannot escape the liability by saying that the injury sustained by the employee did not result in total or partial disablement of the workman. Clause (a) of Section 3 provides that in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding three days, the employer shall not be liable. Here is a case wherein the employee had to take medical treatment for about 40 days as indoor patient in the hospital at Lalpeth Colliery which is under the control of the management and thereafter also he had to take the treatment as outdoor patient for about 2½ months at the said hospital. Simply because he did not obey the second direction dated 15.1.1986 for reporting at the Rehabilitation Centre at Chhindwara for further treatment and physiotherapy, it did not follow that he did not suffer any permanent disablement within the meaning of Sub-Clause (a) of Section 3 of the W.C. Act. The Commissioner rightly considered the evidence adduced on record and reached the conclusion that the employee was taking treatniv it with Dr. Raut from 10.1.1986 for painful arch syndrome, shoulder joint and cannot do the work of lifting, loading etc. It appears that the employee had sustained the injuries like (i) sprain cervical spine; (ii) supraspinatus tendinitis; (iii) traumatic rupture of supraspinatus; (iv) painful arch syndrome (post traumatic). In the circumstances, this Court is of the considered opinion that there is no error or illegality in the order passed by the Commissioner. Consequently, there is no merit in the appeal which stands dismissed with costs.