Tejman Kushwaha vs Manager K.J.S. Cement Factory
2024 Latest Caselaw 12814 MP

Madhya Pradesh High Court

Tejman Kushwaha vs Manager K.J.S. Cement Factory on 7 May, 2024

                                                            1
                            IN     THE      HIGH COURT OF MADHYA PRADESH
                                                 AT JABALPUR
                                                    BEFORE
                                   HON'BLE SHRI JUSTICE BINOD KUMAR DWIVEDI
                                                  ON THE 7 th OF MAY, 2024
                                                MISC. APPEAL No. 872 of 2018

                           BETWEEN:-
                           TEJMAN KUSHWAHA S/O SHRI KODULAL KUSHWAHA,
                           AGED ABOUT 35 YEARS, R/O VILLAGE KORWARA, POST
                           INCHOUL, TAHSIL UNCHEHARA, DIST. SATNA
                           (MADHYA PRADESH)

                                                                                        .....APPELLANT
                           (BY SHRI ARUBENDRA SINGH PARIHAR - ADVOCATE)

                           AND
                           1.    MANAGER K.J.S. CEMENT FACTORY THR.
                                 MAIHAR, POLICE STATION AND TAHSIL MAIHAR,
                                 DIST. SATNA (MADHYA PRADESH)

                           2.    DIVISIONAL   MANAGER     UNITED     INDIA
                                 INSURANCE CO LTD DIVISIONAL OFFICE HOTEL
                                 SIDDHANT (MADHYA PRADESH)

                                                                                     .....RESPONDENTS
                           (BY SHRI ADITYA JAIN - ADVOCATE FOR RESPONDENT NO.1 AND SHRI
                           SURESH RAJ - ADVOCATE FOR THE RESPONDENT NO.2 )

                                 This appeal coming on for admission this day, th e court passed the
                           following:
                                                             ORDER

This misc. appeal has been preferred by the appellant against the order dated 5.10.2017 in case No. 21/2013 WC Act non Fatal and award of Rs.2,34,107/- with interest @12% from the date of 18.12.2012 has been passed.

2. Learned counsel for the appellant submits that appellant has suffered burn injuries while working as a labourer in employment of respondent No.1 KJS

Cement Factory, Maihar. These injuries caused him permanent disability. It is

further submitted that though disability certificate (Ex.P/1) has been given for 60% permanent disability but looking to the statement of D.K. Tiwari who examined the appellant for assessing disability, the percentage of disability is 100% as he will be not in position to work as labourer throughout his life, therefore, compensation amount should have been computed by treating disability to the appellant as 100%. To bolster his submissions counsel for the appellant has relied on para 23 of the judgment of Apex Court in Chandramma vs. Manager, Regional Officer, NCC Ltd. and another 2023 (1) ACCD (SC) and on 31 in Indra Bai vs. Oriental Insurance Company Lt. and another 2023 (4) ACCD (SC). Learned counsel for the appellant has further

submitted that as per Section 4-A (3)(b) of the Workmen Compensation Act, 1923, no justification for delay in depositing the compensation amount has been given therefore, amount of penalty should have also been awarded. On the above contentions enhancement of compensation has been prayed by allowing this appeal.

3. Per contra, learned counsel for the respondent No.2/insurance company submits that insurance company is not liable to pay penalty amount as primarily liability to pay compensation is on the employer.

4. Learned counsel for the respondent No.1 submits that as per the averments in the appeal memo the appellant was not directly employed by the respondent No.1 though he was working in the KJS Cement Factory, Maihar but he was employed by Chandabai on contract therefore, respondent No.1 is not liable for payment of compensation or penalty amount.

5. Heard the learned counsel for the parties and perused the record.

6. As far as the first contention raised regarding 100% disability caused by

appellant injuries are concerned it is not acceptable. Dr. DK Tiwari who himself examined the appellant for assessing disability came to the conclusion that disability has shown permanent disability certificate (Ex.P/1) is 60%. By mere statement of Dr. DK Tiwari it cannot be presumed that that appellant is disabled to such an extent that he cannot do any other work other than a labourer.

7. Judgment in Indra Bai (Supra ) and Chandramma (Supra) are of no help to the appellant as these judgments are distinguishable facts. In case of Indra Bai commissioner assessed the disability as 100% whereas High Court has reduced permanent disability to 40%. This reduction in disability did not found approval of the Supreme court. In case of Chandramma (supra) it was held that that disablement incapacitated the appellant from doing work which she was capable of doing and held that case of appellant definition of total disablement. In this case doctor had clearly and categorically observed that percentage of disability is 100%. This contention of the learned counsel for the appellant treating 60% permanent disability to 100% a functional disability is not approved by this Court, hence contention is dismissed.

8. Next contention raised in view of provisions of Section 4-A (3)(b) of the Act for non payment of penalty amount, half of the compensation amount. It is not in dispute that award was passed on 5.10.2017 and the compensation with

interest total amount Rs.3,42,353/- was deposited on 21.11.2017 i.e. beyond 30 days from the date of award. Compensation amount was deposited which is violation of the provision mentioned hereinabove.

9. Learned Claims Tribunal in para 18 of the impugned order has held that respondents are jointly and severally liable for payment of compensation because of injuries caused by the accident on 18.12.2012. Definition employer

as provided under Section 2-e is extracted as under -

(e) "employer" includes any body of persons whether incorporated or not and any managing agent of an employer and the legal representative of a deceased employer, and, when the services of a workman are temporarily lent or let on hire to another person by the person with whom the workman has entered into a contract of service or apprenticeship, means such other person while the workman is working for him;

1 0 . From perusal of the definition of employer, it is apparent that workman whose services are temporarily lent or let on hire to another person by the person with whom the workman has entered into a contract of service is also included, thus respondent No.1 comes under the definition of employer who was responsible for payment of compensation amount within one month when it fell due. No explanation has been given by the respondent No.1/employer why he has failed to deposit the amount within the period prescribed therefore, contention raised in this behalf by learned counsel for the appellant is allowed and it is directed that 50% of the award amount will also be as penalty paid by respondent No.1 to the appellant within 30 days from the date of this order.

11. In view of the above, this appeal is partly allowed to the extent as indicated above.

(BINOD KUMAR DWIVEDI) JUDGE Akm