Sri Ashok vs Sri Suresh
2022 Latest Caselaw 1964 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 8th DAY OF FEBRUARY, 2022

                       BEFORE

       THE HON'BLE MR. JUSTICE P. KRISHNA BHAT

              M.F.A.NO.3291/2011 (WC)

BETWEEN:

SRI ASHOK
OWNER M/S ARAVIND INTERIORS
NO.112/31, 1ST FLOOR,
6TH CROSS,
SSI AREA, RAJAJINAGAR,
BANGALORE-560010.

CORRECT ADDRESS:

SRI ASHOK S/O MUNISWAMY
AGED ABOUT 41 YEARS,
R/AT NO.43, 3RD CROSS,
SSI AREA,
RAJAJINAGAR,
BANGALORE-560010.                       ...APPELLANT

(BY SRI.V.B.SIDDARAMAIAH, ADVOCATE)

AND:

SRI SURESH
S/O JAGADEESH RAO
AGED ABOUT 43 YEARS
R/O NO.11/4, 10TH MAIN ROAD
BEHIND ESHWARI TEMPLE
K P AGRAHARA
BANGALORE-560023.
                                      ...RESPONDENT
(BY SRI.NATARAJA BALLAL, ADVOCATE)
                              2



      THIS MFA IS FILED U/S 30(1) OF W.C. ACT AGAINST THE
JUDGMENT DATED 30.11.2010 PASSED IN Kaa Aa Bem-
5/WCA/NFC/CR-22/2007 ON THE FILE OF THE LABOUR OFFICER
AND COMMISSIONER FOR WORKMEN COMPENSATION, SUB
DIVISION-5, BANGALORE, AWARDING A COMPENSATION OF
RS.3,04,702/- WITH INTEREST.

     THIS APPEAL COMING ON FOR HEARING, THIS DAY, THE
COURT MADE THE FOLLOWING:
                      JUDGMENT

This is an appeal at the instance of the employer

calling in question the legality and the validity of the

award dated 30.11.2020 passed in Kaa Aa

Ben.5/WCA/NFC/CR-22/2007 by the Labour Officer

and Commissioner for Workmen, Sub Division-5,

Karmika Bhavana, Bannerghatta Road, Bangalore.

2. Claim petition was filed on the allegation

that claimant Suresh was working as carpenter in the

establishment M/s Aravind Interirors owned by the

appellant herein. It is stated further that on

28.08.2007 while the claimant was doing machine

wood cutting work in the establishment, his index

finger and thumb of the right hand were completely

cut off (amputated) and his middle finger was partially

amputated due to industrial accident. He was

immediately treated in the hospital.

3. Before the learned Workmen Compensation

Commissioner, the appellant entered appearance and

filed his written statement denying employer-

employee relationship. He has contended that he is

not liable to pay any compensation to the claimant.

4. During the trial, claimant examined himself

as PW-1, examined a Doctor as PW-2 and examined

one Basavaraju, a co-worker as PW-3. Exs.P1 to P19

were marked for him. The appellant examined himself

as RW-1 and Exs.R1 to R3(a) were marked.

5. After hearing, the learned counsel on both

sides and perusing the records, learned Workmen

Compensation Commissioner allowed the claim

petition in part and awarded a compensation of

Rs.3,04,702/- with interest @ 7.5% p.a. from the date

of the award to 01.12.2010 and thereafter @ 12%

p.a. till the date of payment.

6. Learned counsel for the appellant-employer

raised two fold contentions; firstly, he contended that

the finding of the learned Commissioner that

employer-employee relationship has been established

is based on no evidence and there is absolutely no

material to show that the claimant was working in the

establishment of the appellant. His second contention

is that the compensation awarded by the learned

Commissioner is excessive inasmuch as he has totally

ignored the percentage of disability as prescribed in

the Schedule to the Act and consequently he has

taken 70% disability for amputation of the right hand

thumb, index finger and partial amputation of the

middle finger of the same hand. He therefore submits

that the impugned award is liable to be set aside and

the appeal be allowed.

7. Learned counsel for the claimant per contra

submitted that the learned Commissioner after

elaborate consideration of the evidence placed has

recorded a finding of fact which is fully supported by

evidence and therefore the same is not liable to be set

aside in an appeal filed under Section 30 of the

Employees Compensation Act, 1923 and therefore the

appeal is liable to be dismissed.

8. I have given my anxious consideration to

the submissions made on both sides and I have

carefully perused the records.

9. The first contention of the learned counsel

for the appellant-employer is that the employer-

employee relationship has not been established and

the finding of the learned Commissioner in this behalf

is based on no evidence. The claimant has pleaded in

the claim petition that he had been working as

Carpenter in the Fabrication Unit run by the appellant

herein by name M/s Aravind Interiors. He has further

pleaded that on 28.08.2007 while he was engaged in

cutting wood in the machine, accidentally his right

hand thumb and index finger were completely

amputated and the middle portion of the middle finger

of the same hand was also amputated. He has also

stated that he was admitted to the hospital on the

same day and a surgery was performed and he was

discharged from the hospital on 31.08.2007. In

support of his contentions, he has examined himself

and PW3-Basavaraju who is stated to be a co-worker

in the same establishment as a security guard. On

this aspect learned Commissioner has elaborately

considered the evidence and taken note of not only

the evidence of PWs.1 and 3 but also three documents

exhibited viz., the statements recorded by the police

from the claimant, his wife Reshma and the appellant

herein-the owner of the establishment. Learned

Commissioner has also taken note of the subsidiary

contentions raised by the employer to the effect that

he had closed the establishment with effect from

01.04.2007 and by taking note of the reply notice

dated 19.09.2007 issued by the employer himself to

the claimant wherein he had not stated about the

closure of the establishment. Apart from the same,

the learned Commissioner has noted the fact that PWs

1 and 3 had produced a bunch of pay slips issued to

them by the employer which shows that both PWs 1

and 3 were employed with the appellant herein.

Learned Commissioner has further noticed that they

were computer generated and nothing credible has

been produced by the appellant herein to disbelieve

the same. Further, the evidence of PW-2 Doctor also

shows that on 28.08.2007 the claimant was brought

to his hospital with the aforementioned injuries and

surgery was performed on him and at that time the

co-workers of the claimant had accompanied the

claimant and they had also stated about the claimant

working under the appellant. He has further stated

that the appellant had telephoned him on that day.

Several other documents are also produced to show

that the appellant and his wife Anuradha had issued

documents more particularly signed by Anuradha, wife

of the appellant which shows the names of 17

employees on the rolls of the appellant's

establishment and at Sl.No.15 the name of the

claimant herein is mentioned. Learned Commissioner

has considered the overwhelming materials placed

before him and has come to the conclusion that the

employer-employee relationship between the

appellant and the claimant has been established which

I find is fully supported by evidence and as such, I do

not find any error of jurisdiction in the finding

recorded by the learned Commissioner. Therefore, I

do not find any merit in the submission of the learned

counsel for the appellant advanced in this behalf and

accordingly it is rejected.

10. There is no dispute about the fact that the

claimant had lost fully the right hand thumb and right

hand index finger due to the employment related

mishap and also his middle finger of the right hand

was amputated on the middle portion. For any

worker, more particularly the workman who requires

complete efficient use of both hands, loss of thumb,

index finger and partial loss of the middle finger will

lead to functional disability resulting in his loss of

earning capacity.

11. In that view of the matter, particularly

keeping in view the fact that the claimant was a small

time carpenter who requires use of completely

functional right hand thumb, index finger and middle

finger without which he cannot function in full capacity

and also his employability now gets diminished to a

substantial extent, I do not find any error in the

assessment of functional disability made by the

learned Commissioner at 70% and therefore I am not

inclined to interfere with the said finding.

Accordingly, there is no merit in this appeal and

it is dismissed. The amount in deposit shall be

transmitted to the learned court below along with the

records forthwith.

Sd/-

JUDGE

Dvr: