Karnataka High Court

The Director vs Sri G H Nagaraju on 26 March, 2025

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                                                                NC: 2025:KHC:12869
                                                            MFA No. 6209 of 2015




                             IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                                DATED THIS THE 26TH DAY OF MARCH, 2025

                                                 BEFORE

                                THE HON'BLE MRS JUSTICE K.S. HEMALEKHA

                         MISCELLANEOUS FIRST APPEAL NO.6209 OF 2015 (WC)

                      BETWEEN:

                      THE DIRECTOR,
                      KMF MOTHER DAIRY,
                      YALAHANKA,
                      BANGALORE-560065.                               ... APPELLANT

                      (BY SRI PRASHANTH B.R., ADVOCATE (V/C))

                      AND:

                      SRI G.H. NAGARAJU
                      S/O. HONEGOWDA,
                      AGED ABOUT 58 YEARS,
                      TECHNICAL OFFICER,
                      HOUSE NO.D-5,
                      MOTHER DAIRY PREMISES,
                      GKVK POST,
                      BANGALORE-560 065.                             ... RESPONDENT
Digitally signed by
MAHALAKSHMI B M       (BY MRS. MANJULA KULKARNI, ADVOCATE FOR
Location: HIGH            SRI V.S. NAIK, ADVOCATE (V/C))
COURT OF
KARNATAKA                   THIS MFA IS FILED UNDER SECTION 30(1) OF THE EMPLOYEE'S
                      COMPENSATION ACT, SET ASIDE THE JUDGMENT AND AWARD DATED
                      15.06.2015 PASSED IN ECA NO.141/2014 ON THE FILE OF THE 9TH
                      ADDITIONAL SMALL CAUSES JUDGE AND 34TH ACMM, MEMBER,
                      COURT SMALL CAUSES, MACT-7, BENGALURU, AWARDING AN
                      COMPENSATION OF RS.4,37,916/- WITH INTEREST AT THE RATE OF
                      12% P.A. FROM 21.02.2013 TILL THE DATE OF PAYMENT.

                           THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY,
                      JUDGMENT WAS DELIVERED THEREIN AS UNDER:

                      CORAM:    HON'BLE MRS JUSTICE K.S. HEMALEKHA
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                                              NC: 2025:KHC:12869
                                         MFA No. 6209 of 2015




                       ORAL JUDGMENT

The Karnataka Milk Federation Mother Dairy is before

this Court assailing the judgment and order dated

15.06.2015 passed in ECA No.141/2014 on the file of the IX

Additional Small Causes Judge and XXXIV A.C.M.M. Court of

Small Causes, Member, MACT-7, Bangalore, (hereinafter

referred to as 'Tribunal' for short) whereby the Tribunal by

the impugned order held that respondent is entitled for

compensation of Rs.4,37,916/- with interest at the rate of

12% per annum from 21.02.2013 till the date of payment.

2. Facts are that, the respondent, a permanent

employee of the appellant, working as a technical officer, on

21.01.2013 when he was repairing the Conveyer Motor, the

motor started running and his left hand forefinger got

injured. Due to the impact of the accident the respondent's

forefinger was amputated. He filed a claim petition seeking

compensation before the Tribunal. The claim made by the

respondent is that he is working as a technical officer, who

while discharging his duty during the course of his

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employment has suffered the injury, which led to

permanent disablement and sought for compensation.

3. The claim was resisted by the appellant interalia

contending that the respondent is to be termed as

"Workman" under Section 2(s) of the Industrial Disputes

Act and as such he is not entitled for compensation under

the Workmen Compensation Act, 1963 (hereinafter referred

to as the 'Act' for short). Further the injury sustained by

the respondent was due to his negligence, the same cannot

be attributed to the employer. The medical expenses were

borne by the appellant as benefit for inpatient medical

claims of the employees, he was given medical leave with

full salary, inspite of receiving full amount and benefits, a

false claim is filed.

4. The Tribunal based on the pleadings framed the

following issues:

"1. Whether the Petitioner proves that, he was employed under the Respondent at the time of incident and the relationship between himself

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and the respondent is that of employee and employer?

2. Whether the Petitioner proves that, on 21.01.2013 at about 5-15 p.m., when he was repairing conveyer motor, accidentally his left hand forefinger got injured and amputated, which caused during the course of employment with the Respondent?

3. Whether the Petitioner is entitled for compensation? If so, how much and from whom?

4. What Order?"

5. Based on the pleadings, oral and documentary

evidence, Tribunal was of the opinion that the respondent

had met with an accident while in employment, there was

an employer and employee relationship, the injury

sustained is permanent in nature, by the impugned order

awarded compensation of Rs.4,37,916/- with interest at the

rate of 12% per annum from the date of 21.02.2013 till the

date of payment.

6. Learned counsel for the appellant would urge the

following grounds:

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(1) That the respondent is a qualified technical officer

drawing a monthly salary of Rs.50,285/-, he was

discharging supervisory and managerial nature of work and

he cannot be termed as "Workman" for him to maintain the

petition under the Act.

(2) The injury caused is due to the utter negligence of

the respondent, therefore he is not entitled to any

compensation under the Act. No safety norms were adopted

by the respondent while repairing the motor of the

Conveyer, had the electrical cable removed from its main

electrical source the motor would not have run suddenly

causing injury to the respondent.

(3) Having held by the Tribunal that there is no loss of

future income, having continued with the job in the same

manner, there being no loss of salary was not justified in

awarding compensation calculation based on percentage of

loss of earning capacity.

(4) There was no loss of future income arising out of

disability, medical expenses incurred by the respondent

were also borne by the appellant. There was no

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change of working conditions. This aspect though was

considered by the Tribunal, the Tribunal awarding the

compensation was not justified. The disability assessment

by the Tribunal is not based on the settled proposition of

law and as such the same warrants interference.

7. Learned counsel appearing for the respondent

justifying the order passed by the Tribunal submits that

undisputedly there is a permanent disability i.e., the

respondent has lost his left hand forefinger in the accident

during the course of employment. The injury sustained is

permanent disability, a scheduled injury as defined under

the Act, rightly assessed by the Tribunal and the

compensation awarded by the Tribunal does not warrant

any interference.

8. This Court on 27.07.2016 admitted the present

appeal, without framing a substantial question of law. On

20.12.2024 this Court on hearing framed the following

substantial question of law-

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"Whether the workmen is entitled for compensation for disability even though he was continued in the service by the employer without any reduction in salary?"

9. The relationship between employer and

employee is not in dispute, during the course of the

employment the respondent caused injury to his left hand

forefinger, impact led to the amputation of the forefinger.

That the injury sustained is due to negligence on part of

the respondent, from the perusal of the material on record

there is no corroborative evidence on part of the appellant

to indicate that there was any negligence on part of the

respondent while repairing the Conveyer Motor, admittedly

as per EXs.P 8 and P 9 the Job Chart indicate the duties and

responsibility of the respondent, his nature of work is

maintenance and repair of plant and machinery. In the

absence of any corroborative evidence regarding negligence

what remains for the Court is to determine whether the

awarding of compensation towards the amputation of his

forefinger is justified. It is also the contention of the

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appellant that the respondent is not a Workman as defined

under 2(s) of the Industrial Disputes Act. At this stage it is

relevant to consider the definition of "employee" defined

under Section 2 (dd) as under:

"(dd) "employee" means a person, who is-

(i) a railway servant as defined in clause (34) of section 2 of the Railways Act, 1989 (24 of 1989), not permanently employed in any administrative district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II; or

(ii) (a) a master, seaman or other members of the crew of a ship,

(b) a captain or other member of the crew of an aircraft,

(c) a person recruited as driver, helper, mechanic, cleaner or in any other capacity in connection with a motor vehicle,

(d) a person recruited for work abroad by a company,

and who is employed outside India in any such capacity as is specified in Schedule II and the ship, aircraft or motor vehicle, or company, as the case may be, is registered in India; or

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(iii) employed in any such capacity as is specified in Schedule II, whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing; but does not include any person working in the capacity of a member of the Armed Forces of the Union; and any reference to any employee who has been injured shall, where the employee is dead, include a reference to his dependants or any of them;"

10. On a plain reading of the definition referred

above, it clearly indicates that the person employed in any

capacity as is specified in schedule II of the Act has to be

considered as an employee for claiming compensation

under this Act. Under the original Workmen's

Compensation Act, 1923 under Section 2(n) the workman

was defined. By the Act of 45 of 2009 clause (n) came to

be omitted and clause 2(dd) came to be inserted by the Act

45 of 2009 with effect from 18.01.2010. The accident is of

the year 2013, in the said circumstances, the employee as

defined under section 2(dd) of the Act has to be taken.

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Thus, the contention of the appellant that the respondent

does not fit under the definition of the Act demerits, the

Court opines that the respondent is an employee as defined

under Section 2(dd) of the Act. Coming to the

compensation awarded by the Tribunal, it could be seen

that the order of the Tribunal, that the Tribunal assessed

that there is a permanent total disablement of 11% to the

whole body as the respondent has lost his forefinger in the

accident, the salary of the respondent was Rs.50,285/- per

month. Taking the permanent total disability amounting to

60%, the income arrived by the Tribunal is Rs.30,171/-

(50,285 x 60%) and applying the multiplier 131.95 as per

schedule by considering the age of the respondent as 56

years, the compensation arrived by the Tribunal is 30,171

x 131.95 x 11% and the compensation awarded is

Rs.4,37,916.98/- towards the loss of forefinger of the left

hand.

11. Section 3 of the Act, defines Employer's liability

for compensation if any personal injury is caused to (an

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employee) by accident arising out of or in the course of his

employment, his employer shall be liable to pay

compensation in accordance with the provisions of Chapter

II, provided that 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. The injury caused to the

respondent is a disablement as defined under Schedule I

Part II Serial No 27.

12. Section 4 deals with amount of compensation,

sub-sections (b) and (c) of Section 4 reads as under:

"4. Amount of compensation.--(1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:

(a) x x x

(b) where permanent an amount equal to sixty total disablement per cent. of the monthly results from the wages of the injured injury employee multiplied by the relevant factor;

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                            an amount of one lakh
                            and       forty     thousand
                            rupees,      whichever          is
                            more:

Provided that the Central Government may, by notification in the Official Gazette, from time to time, enhance the amount of compensation mentioned in clauses (a) and (b).

Explanation I. - xxx

(c) where permanent (i) in the case of an injury partial disablement specified in Part II of result from the injury 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

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                                 proportionate to the loss of
                                 earning      capacity       (as
                                 assessed by the qualified
                                 medical         practitioner)
                                 permanently caused by the
                                 injury;"

13. Under the Act, a scheduled injury refers to an

injury listed in the schedule of Act, which entitles the

injured worker to compensation as per the prescribed

formula, merely because an employer continued to pay

salary and there was no loss of income, would not nullify

the workers right to seek compensation under the Act. The

Act does not state that the compensation should be denied

if the employer continued salary payment, the

compensation is based on the medical impairment and the

injury lead to permanent disability (total or partial), the

Tribunal's award of compensation is justified and the injury

sustained though did not affect the earning capacity, the