M/S Super Packwell Industries, ... vs Kailas Laxman Karale
2021 Latest Caselaw 11524 Bom

                                                      First Appeal No.595/2020
                                      :: 1 ::



           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD


                   FIRST APPEAL NO.595 OF 2020 WITH
                   CIVIL APPLICATION NO.3645 OF 2020


 M/s Super Packwell Industries,
 having its address at
 M-153, M.I.D.C. Industrial Area
 Waluj, Aurangabad,
 through its Proprietor                              ...APPELLANT

                  VERSUS

 Kailas s/o Laxman Karale,
 age major, Occ. Service,
 R/o At Post Toki, Taluka Gangapur,
 District Aurangabad                                 ...RESPONDENT

                              .......
 Shri S.P. Pandav, Advocate for appellant
 Shri A.D. Pawar, Advocate for respondent (appointed)
                              .......

                                  CORAM :       R. G. AVACHAT, J.
                  Date of reserving judgment : 20th August, 2021
                  Date of pronouncing judgment : 23rd August, 2021


 JUDGMENT:

This is employer's appeal under Section 30 of the

Employees' Compensation Act, 1923 (EC Act for short). The

challenge herein is to the order dated 24/12/2019, passed by

the Commissioner of Employees' Compensation & Judge,

Labour Court-2, Aurangabad in Application (W.C.A.)

No.20/2014. By the impugned order, the employer has been

First Appeal No.595/2020 :: 2 ::

directed to pay the respondent (employee) a sum of

Rs.3,00,000/- together with interest @ 12% p.a. thereon from

the date the amount of compensation fell due to the date of

payment to be made, within two months from the date of the

impugned order. The employer has also been directed to pay

the respondent a sum of Rs.50,000/- towards penalty and

Rs.5000/- towards costs of the proceedings.

2. The substantial question of law involved in this

appeal is :-

"As to whether the Commissioner has been justified in awarding compensation for permanent disability suffered by the employee due to the accident arising out of, and in the course of employment ?"

3. Since the employee did not appear in this appeal

in spite of service of notice of final hearing, the learned

Advocate Shri Ajay D. Pawar was appointed to assist the

Court in this matter. With the able assistance of learned

Advocate Shri Ajay D. Pawar, I could decide this appeal.

4. Heard. Learned counsel for the employer would

submit that, the employee has suffered a minor injury. He

had, therefore, approached the Deputy Director, Industrial

Safety and Health (Deputy Director for short), asking for

compensation. The employee was, therefore, referred to the

First Appeal No.595/2020 :: 3 ::

Medical Board for examination. The Board found him not to

have suffered disability. He was found fit to work. The

employer paid him a sum of Rs.50,000/-. The employee then

withdrew his claim and then, with ill advice, filed the

application for compensation. The learned Advocate would

further submit that, the disability certificate produced before

the Commissioner was obtained six years after the accident.

The doctor who issued it had not examined the employee or

given him the treatment. The employee suppressed the facts

that he had approached the Deputy Director, the Medical

Board found him to be fit. According to the learned Advocate,

the Commissioner erred in not relying on the certificate

issued by the Medical Board. Relying on the disability

certificate issued by a doctor six years after the accident, the

Commissioner has passed the impugned order. He, therefore

urged for setting aside the same.

5. Shri Ajay D. Pawar, the learned Advocate

(appointed) for the respondent employee would, on the other

hand, submit that, none of the members of the Medical Board

who had examined the employee and then issued the alleged

certificate was examined in proof thereof, in spite of the same

were available. According to him, the disability certificate,

relying on which the Commissioner has passed the impugned

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order, was duly proved. The employer failed to prove to have

had paid the employee sum of Rs.50,000/-. The learned

Advocate placed reliance on the following authorities :-

(1) Narayansing Kashiram Singh Hazari (Dr.) Vs.

Sheikh Ismail Imam & ors. [ 2020(4) Mh.L.J. 605 ]

(2) Kedar kamlakar Badave Vs. Kailash Eknath Lahoti & ors.

[ First Appeal No.1355/2012 - MANU/MH/2644/2019 ]

(3) The United India Insurance Co. Ltd. Vs. Alpesh

[ First Appeal No.197/2006 - MANU/MH/1827/2017 ]

6. Section 3 of the EC Act speaks of employer's

liability for compensation. If personal injury is caused to an

employee by accident arising out, and in the course of his

employment, his employer shall be liable to pay

compensation in accordance with provisions of Chapter II of

the EC Act, provided the employer shall not be so liable,

(a) in respect of any injury which does not result in the

total or partial disablement of the employee 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 -

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(i) the employee having been at the time thereof

under the influence of drink or drugs, or

(ii) the wilful disobedience of the employee to an

order expressly given, or to a rule expressly

framed, for the purpose of securing the safety

of employee, or

(iii) the wilful removal or disregard by the

employee of any safety guard or other device

which he knew to have been provided for the

purpose of securing the safety of employees.

7. Section 4 of the very Act speaks of amount of

compensation,

(b) where permanent total disablement results from the

injury, an amount equal to sixty per cent of the

monthly wages of the injured employee multiplied by

the relevant factor; or an amount of one lakh and

forty thousand rupees, whichever is more.

(c) where permanent partial disablement results from

the injury,

(i) in case of an injury specified in Part II of

Schedule I, such percentage of the

compensation which would have been payable

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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.

8. While Section 3(2A) speaks of employee's right to

be reimbursed the actual medical expenditure incurred by him

for treatment of injuries caused during the course of

employment.

9. Admittedly, the employee met with the accident

arising out of, and in the course of his employment on

13/4/2013. He was working on painting machine. It is

alleged that, his right hand was crushed in the machine,

resulting into multiple fractures to three fingers of his right

hand. It appears that, although the employee initially denied

to have had approached the Deputy Director for

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compensation, he came around to concede the same. In his

cross-examination, the employee admitted that, he was

working with the employer through a labour contractor. He

further admitted that, the Deputy Director had referred him

to the Government Medical College & Hospital, Aurangabad

for examination. Accordingly, he appeared before the Medical

Board on 19/9/2019. Admittedly, the documents forming part

of the proceeding before the Deputy Director have not been

produced by the employee before the Commissioner nor has

he referred thereto in his application for compensation. As

such, he has suppressed all those facts from the

Commissioner. Be that as it may.

10. The employee examined Dr. Parmeshwar as a

witness in proof of the disability certificate (Exh. U-27). It is

in his evidence that, on 14/2/2019, the employee had come

to his clinic for disability certificate. He went through his

medical papers. Examined the employee clinically. The

employee had suffered crush injury on right hand, middle ring

and little finger. He was operated for debridement and K wire

were put in three fingers. He was having scars of operation in

little finger, middle finger and ring finger. He is having

restriction of movement of both fingers, extension by 10

degree, grip of right hand is weaker than left hand. Dr.

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Parmeshwar certified the employee to have suffered 20%

disability. He issued the certificate (Exh. U-27). The doctor

admitted to have had not treated the employee for the

injuries sustained by him in the accident. He also admitted to

have had not gone through the report of the Medical Board

before issuance of the certificate (Exh.U-27).

11. The employer, on the other hand, examined Dr.

Sarojini, a Medical Officer working with Government Hospital,

Aurangabad. She had appeared in response to the summons

issued by the Commissioner. She had appeared before the

Commissioner along with the original file of the employee

maintained with the Government Medical College & Hospital,

Aurangabad. It is in her evidence that the Medical Board

comprising of three doctors namely Shri Borkar, Shri Varudkar

and Shri Khaire had examined the employee as he was

referred to the Board by the Deputy Director. On examination

of the employee, the Board issued him certificate (Exh. C-17).

Dr. Sarojini identified the signatures of the three doctors

appearing on the certificate. The Board certified him to be fit

for work.

12. The Commissioner did not rely on the certificate

for the reason of non-examination of any of the doctors who

had examined the employee and issued the certificate. Dr.

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Sarojini has categorically deposed that those three doctors

have either been transferred or serving with other

Department. In view of the Commissioner, there is no

evidence that any of those doctors were out of the reach of

the Court process. The Commissioner further observed that

the certificate issued by the Board has not been proved in

accordance with Section 67 of the Evidence Act. Learned

Advocate Shri Pawar relies on these observations of the

Commissioner. Relying on the aforesaid authorities, he would

submit that, in case of non-examination of a Medical Officer

who had issued disability certificate, the certificate does not

get admitted in evidence.

13. I have carefully gone through the authorities

relied on to find them to be quite distinguishable on facts. I

do not agree with the submission of the learned Advocate

Shri Pawar and the observations of the learned Commissioner

that for want of examination of any of the member of the

Medical Board the certificate has not been duly proved.

Admittedly, the employee was referred by the Deputy Director

to the Medical Board for examination. The employee had

accordingly appeared before the Board on 19/9/2019. Dr.

Sarojini had appeared before the Commissioner along with all

the original papers including the original certificate. After

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having been verified a copy of the said certificate by the

Superintendent of the Labour Court, the original was

returned. As such, although the certificate (Exh.U-27) is not

an original one, it is a copy compared with the original by a

public servant in discharge of his official duties. As such, the

certificate tendered in evidence is in the nature of a

secondary evidence, admissible under Section 63(3) of the

Evidence Act. Dr. Sarojini identified the signatures of the

doctors who had issued the certificate. It has to be presumed

that the certificate has been issued on due medical

examination of the employee. In the given facts and

circumstances of the case, it was for the employee to come

clean and disclose all these facts. He appears to have

consciously suppressed all these facts from the Commissioner.

14. This Court could have relied on the certificate

issued by Dr. Parmeshwar, but for the facts that it was issued

only for the sake of this proceedings. Admittedly, Dr.

Parmeshwar had not treated the employee for the injuries

suffered in the accident arising out of, and in the course of his

employment. It is only six years after the accident and

pending the application before the Commissioner the

employee approached Dr. Parmeshwar who issued the

disability certificate ostensibly after going through the medical

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papers. It appears that, the certificate issued by Dr.

Parmeshwar was obtained only for the purpose of the

application for compensation. In this factual backdrop, the

Commissioner ought not to have relied on the certificate

(Exh.U-27).

15. Even otherwise, Dr. Parmeshwar certified the

employee to have suffered 20% of disability. There is nothing

to suggest the employee to have suffered permanent total

disablement, entitling him for compensation in terms of

Section 4(1)(b) of the EC Act. The Commissioner erred in

granting compensation under the said Section.

16. The employer has, however, failed to prove his

case to have had paid the employee a sum of Rs.50,000/-. A

receipt allegedly issued by the employee was produced before

the Commissioner. It has, however, not been duly proved.

The fact, however, remains that, the employee had met with

an accident and suffered injuries as a result thereof. He is,

therefore, necessarily entitled for compensation. Without

going into further details of injuries for want of evidence,

suffice it to say that, ends of justice would be met if the

employer is directed to pay the employee a sum of

Rs.50,000/-. With this, the appeal is allowed in terms of the

following order :-

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(i) The order dated 24/12/2019, passed by the

Commissioner of Employees' Compensation & Judge, Labour

Court-2, Aurangabad in Application (W.C.A.) No.20/2014 is

set aside.

(ii) The appellant employer shall pay the respondent

employee a sum of Rs.50,000/- (Rupees fifty thousand)

towards compensation. The said amount of Rs.50,000/-

(Rupees fifty thousand) be paid to the employee from and out

of the amount of compensation deposited by the employer

with the Commissioner.

(iii) The said amount of Rs.50,000/- (Rupees fifty

thousand be paid to the employee along with interest accrued

thereon from the date of deposit of the amount of

compensation by the employer to the actual date of payment

to the employee.

(iv) Out of the said amount in deposit with the

Commissioner, a sum of Rs.25,000/- (Rupees Twenty Five

thousand) be paid to learned Advocate Shri A.D. Pawar,

towards his fees.

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(v) The balance amount be paid back to the employer

immediately.

In view of disposal of the First Appeal, Civil

Application stands disposed of.

( R. G. AVACHAT ) JUDGE

fmp/-