Balasaheb Bhikajirao Deshmukh vs Divisional Controller M.S.R.T.C ...
2016 Latest Caselaw 3745 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           BENCH AT AURANGABAD




                                                    
                              FIRST APPEAL NO. 811 OF 2005


     Balasaheb Bhikajirao Deshmukh




                                                   
     Age : Major, Occu : Nil,
     R/o Mitra Nagar, Latur.                                 ... Appellant
                                                             (Orig. applicant)
              Versus




                                         
     The Divisional Controller,
     Maharashtra State Road Transport
                             
     Corporation, Latur.                                     ... Respondent
                                                             (Orig. opponent)
                            
                                        .....
                    Advocate for the appellant : Mr. S. S. Manale
                 Advocate for the respondent : Smt. Ranjana Reddy.
                                        .....
      
   



                                                 CORAM : V. K. JADHAV, J.

RESERVED FOR JUDGMENT ON : 13th JUNE, 2016 JUDGMENT PRONOUNCED ON : 12th JULY, 2016

JUDGMENT :-

1. Being aggrieved by the judgment and award dated 16.10.1999

passed by the Commissioner for Workmen's Compensation and

Judge, Labour Court, Latur, in W.C.A. No. 79 of 1997, the original

applicant has preferred this appeal to the extent of quantum of

compensation.

2. Brief facts giving rise to the present appeal are as follows:

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a) The appellant/original applicant Balasaheb was in the

employment of respondent/MSRTC since 1968 as a Conductor till

the date of accident. On 24.06.1996, he was on duty as a Conductor

on Latur-Talani bus bearing registration No. MCA-7437 and one Mr.

Sonwane was driver of the said bus. Departure time of the said bus

was 7.00 p.m. and the route was via Ausa. After passing Ausa S.T.

Stand, the appellant/original applicant started issuing tickets to the

passengers in the said bus by accepting fare. On way, suddenly one

vehicle came from opposite side and therefore, driver of the bus had

applied breaks to the bus. In consequence of which, the

appellant/original applicant, who was issuing tickets, fell down inside

the bus. The driver was driving the bus in a very high speed and in

rash and negligent manner at the time of said accident. The

appellant/original applicant, therefore, sustained grievous injuries to

his left leg and other parts of the body. He had sustained fracture

injury on his left knee joint. He was shifted to General Hospital, Ausa

and referred to one another hospital for treatment. He has,

thereafter, taken treatment in Hasgude Accidental Hospital as indoor

patient for a period of two months. He is not cured as like prior to the

date of accident. The movements of his left leg from knee joint

became restricted. Consequently, the appellant/original applicant is

unable to sit and walk properly. He is not able to do daily work

without aid. He was also required to spend a considerable amount

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towards his medical treatment. Since respondent/MSRTC had not

responded to his legal notice, the appellant/original applicant was

constrained to file application under Workmen's Compensation Act,

1923 (for short "the Act of 1923") for grant of compensation before

the Commissioner.

b) Respondent/MSRTC has strongly resisted the claim of the

appellant/original applicant by filing written statement Exh. C-15. It is

denied that the appellant/original applicant met with an accident on

24.06.1996 on Latur-Talani road. It is contended that the

appellant/original applicant has performed his duties, halted at Talani

and on the next day, the bus reached at Ausa depot after 12 noon. It

is also contended that the fare amount of tickets issued to the

passengers came to be deposited in Ausa depot and thereafter, the

appellant/original applicant went home. It is contended that on both

the aforesaid dates, no accident had taken place, nor the

appellant/original applicant suffered any injury. The driver of the said

bus has not given any intimation either in writing or orally to the

Depot Manager about the alleged accident. It is also contended that

the appellant/original applicant could have taken medical treatment at

Government Hospital at Latur or Ambejogai. It is further contended

that the applicant is taking disadvantage of the incident happened

somewhere else. Considering the rival claims of the parties, the

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learned Commissioner has framed issues and both the parties led

their oral and documentary evidence in support of their rival

contentions. Learned Commissioner for Workmen's Compensation,

by the impugned judgment and award dated 16.10.1999, declared

that the appellant/original applicant met with an accident on

24.06.1996 arisen out of and during the course of his employment

with respondent/MSRTC and the appellant/original applicant is

entitled to compensation of Rs.97,842/- with interest at the rate of

12% per annum from 24.06.1996 till realization. Being aggrieved by

the same, the original applicant has preferred this appeal.

3. Learned counsel for the appellant/original applicant submits

that the left leg of the appellant is fractured from knee joint and in

consequence of which, the appellant cannot bend his left leg and

even unable to sit and walk properly. The appellant is unable to do

any work. The appellant is permanently disabled and has lost his

earning capacity to the extent of 100%. Even though the appellant

has sustained disablement which affected his earning capacity to the

extent of 100%, learned Commissioner has erroneously considered

50% loss of earning capacity.

4. Learned counsel for the appellant/original applicant further

submits that witness Dr. Hajgude has opined that though the

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appellant has sustained disability to the extent of 10%, he cannot

perform duties of Conductor as he was performing prior the accident,

and thus, there is loss of earning capacity to the extent of 100%.

During pendency of this appeal, respondent/MSRTC referred the

appellant to the Medical Board of Swami Ramanand Teerth Rural

Medical College and Hospital, Ambejogai and after examination, the

Medical Board issued a certificate on 29.01.2000, holding that the

appellant is completely and permanently incapacitated for further

service of any kind. In pursuance of the said certificate issued by the

Medical Board, respondent/MSRTC, by order dated 10.03.2000,

removed the appellant from the muster roll/service of

respondent/MSRTC. Since respondent/MSRTC itself accepted that

the appellant is not able to do any work in the establishment, the loss

of earning capacity of the appellant is therefore required to be

assessed at 100%, and accordingly the appellant is entitled to

compensation on that basis. The appellant is also entitled for the

penalty as respondent/MSRTC has not paid compensation though

fell due.

5. Learned counsel for respondent/MSRTC submits that the

appellant/original applicant has sustained disability to the extent of

10% only. Learned Commissioner, by considering the opinion given

by witness Dr. Hajgude, has rightly considered the loss of earning

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capacity of the appellant/original applicant to the extent of 50%.

Even though respondent/MSRTC subsequently found that the

appellant/original applicant is not able to perform duties as a

Conductor on account of permanent disability sustained by him, the

appellant/original applicant can perform any other duties as available

and suitable to him. Simply because respondent/MSRTC has

removed the appellant/original applicant from service to work as

Conductor, it does not mean that he is not able to do any work other

than as Conductor. Learned Commissioner has rightly awarded

compensation and no interference is called for in the impugned

judgment and award. There is no substance in the appeal and thus,

the appeal is liable to be dismissed.

6. Learned counsel for respondent/MSRTC, in order to

substantiate her contentions, placed reliance on the decision

rendered by the Supreme Court in the case of Palraj vs. The

Divisional Controller, NEKRTC, reported in 2010 (10) SCC 347.

7. It would be appropriate to reproduce here the provisions of the

Act of 1923 relevant for determination of the present controversy :

"Sec.2(1)(g) "partial disablement" means, where the disablement is of a temporary nature, such disablement as reduces the earning capacity of a workman in any

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employment in which he was engaged at the time of the

accident resulting in the disablement, and, where the disablement is of a permanent nature, such disablement as

reduces his earing capacity in every employment which he was capable of undertaking at that time: provided that every injury specified in Part II of Schedule I shall be

deemed to result in permanent partial disablement;

Sec.2(1)(l) "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 percent, or more;"

8. In the case in hand, the injury sustained by the

appellant/original applicant is a non-scheduled injury. In the

definition of "partial disablement", there is a direct reference to the

earning capacity of a workman while in the case of "total

disablement" injuries mentioned in Part I Schedule I to the said Act of

1923 are referred. By virtue of the injuries suffered by the

appellant/original applicant, his disablement, as far as working as a

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Conductor is concerned, is 100%. The question is, therefore,

whether the same is the measure of loss of his earning capacity.

Section 4 of the Act of 1923, more particularly, Section 4(1)(c)(i) and

(ii) provides as follows:

"Section 4 Amount of compensation- (1) Subject to the provisions of this Act, the amount of compensation

shall be as follows, namely:-

(a)............

(b)............

(c) Where permanent partial disablement results from the injury

(i) in the case of an injury specified in Part II of Schedule I, such percentage of the

compensation which would have been payable in the case of permanent total

disablement as is specified therein as being the percentage of the loss of earning capacity

caused by that injury, and

(ii) in the case of an injury not specified in Schedule I, such percentage of the

compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury.

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Explanation I.- Where more injuries than one are caused by the

same accident, the amount of compensation payable under this head shall be aggregated but not so in any case as to exceed

the amount which would have been payable if permanent total disablement had resulted from the injuries.

Explanation II.- In assessing the loss of earning capacity for the purposes of sub-clause(ii), the qualified medical practitioner shall have due regard to the percentages of loss of earning

capacity in relation to different injuries specified in Schedule I;"

9. It is clear from the above provisions that where a workman

suffers injury which is not specified in the Schedule I to the Act of

1923, compensation is to be assessed on such percentage of the

compensation payable in the case of permanent total disablement as

is proportionate to the loss of earning capacity, permanently caused

by the injury as assessed by a qualified medical practitioner. In the

instance case, the nature of injuries suffered by the appellant/original

applicant is not specified in Schedule I. The compensation,

therefore, has necessarily to be assessed on the basis of loss of

earning capacity caused by the injury.

10. The appellant/original applicant has examined Dr. Geetkumar

Annarao Hajgude, who has opined that knee of the appellant/original

applicant was solen inflamed and there was tenderness over the

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patella. According to him, the appellant has sustained disablement

of 10% of his total body capacity. He has further explained that the

joints to knee are still restricted and the appellant/original applicant

cannot bend his leg while sitting. He has expressed his opinion in

unequivocal words that it is not possible for the appellant/original

applicant to perform duties as a Conductor. He has further explained

that the appellant cannot stand properly due to accidental injuries

and in the process of moving vehicle, if it gives jerk, the appellant will

not sustain it. In cross-examination, he has ruled out the possibility

of improvement and stated that the job of Conductor is not possible

for the appellant/original applicant. He has also ruled out the

possibility that after giving treatment to the appellant/original

applicant in future, there are chances of improvement.

11. It further appears from the documents placed before this Court

as an additional evidence along with Civil Application No.10756 of

2014 that, since the appellant was removed from the service by

respondent/MSRTC by passing an order in the year 2000,

respondent/MSRTC has no reason to dispute the genuineness of

these documents and accordingly, I have allowed the Civil

Application for production of additional evidence. It appears that

respondent/MSRTC has referred the appellant/original applicant to

the Medical Board of the Government Hospital named and titled as

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Swami Ramanand Teerth Rural Medical College and Hospital,

Ambejogai, and on the basis of the certificate issued by said Medical

Board, issued the order No.96 of 2000 with the specific averments in

the order that the appellant/original applicant is completely and

permanently incapacitated for further service of any kind in the

department to which he belongs in consequence of the operated

case of Dislocation (L) patella with Fibrosis Ankylosos in Extension

(Lt) Knee. In the backdrop of the above order, it can be said that

respondent/MSRTC has accepted that the appellant/original

applicant is not in a position to earn a living even other than by

functioning as a Conductor. He is held to be incapacitated for further

service of any kind in the department.

12. In view of the above, the case of Palraj vs. The Divisional

Controller, NEKRTC (supra), relied upon by learned counsel for

respondent/MSRTC, cannot be made applicable to the facts and

circumstances of the present case. It is incumbent upon the Court to

take into account the nature of injury, the nature of work which the

workman was capable of undertaking and its availability to him. In

this connection, the order issued by respondent/MSRTC, holding the

appellant/original applicant incapacitated for further service of any

kind in the department, makes it clear that the appellant is entitled for

compensation to the extent of 100%. In view of this, recalculation of

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the compensation is also required to be done. Though the salary of

appellant/original applicant was Rs.4285/- per month at the time of

accident, the maximum wages of Rs.2000/- can be considered for

the purpose of determining compensation and 60% of the same

comes to Rs.1200/-. Learned Commissioner has rightly taken the

relevant factor as 163.07 and accordingly, total compensation comes

to Rs.1,95,684/-. The appellant/original applicant is entitled for the

same along with interest as directed by learned Commissioner. So

far as the question of penalty is concerned, in light of the ratio laid

down in the case of Ved Prakash Garg vs. Premi Devi and others,

reported in AIR 1997 SC 3854 and the case of Udhav Rangnathrao

Pawar vs. Sheshrao Ramji Jogdand and anr. decided by the

Bombay High Court, reported in 2009 (5) Bom.C.R. 523, the matter

is required to be relegated to the Commissioner, who shall, after

giving reasonable opportunity to the employer MSRTC to show

cause, and if satisfied that there is no justification for the delay in

payment of compensation, take appropriate decision about

imposition of penalty.

13. In view of the above discussion, I proceed to pass the following

order:

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ORDER

I. The First Appeal No. 811 of 2005 is hereby partly allowed.

II. The judgment and award dated 16.10.1999, passed by the Commissioner for Workmen's Compensation and Judge,

Labour Court, Latur in W.C.A. No. 79 of 1997 is hereby modified in the following manner:

"The applicant is entitled to compensation of Rs.1,95,684/- with interest at the rate of 12% per annum from 24.06.1996

till realization and the respondent/MSRTC is liable to pay the said amount of compensation and interest to the applicant."

III. Award be drawn up in tune with the above modification.

IV. The matter is relegated to the Commissioner for Workmen's Compensation and Judge, Labour Court, Latur to the extent

of imposition of penalty with a direction that, after giving reasonable opportunity to the employer MSRTC to show cause as regards delay in payment of compensation, take

appropriate decision with justifiable reasons.

V. The parties shall appear before the Commissioner for Workmen's Compensation and Judge, Labour Court, Latur

on 25.08.2016

VI. The First Appeal is accordingly disposed of.

( V. K. JADHAV, J.) vre/