Orissa High Court
Abinash Khemka vs The Commissioner For Employees on 22 August, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
FAO No.258 of 2016
(From the judgment dated 6th April, 2016 passed by the learned
Commissioner for Employees Compensation and Asst. Labour
Commissioner, Balasore in E.C. Case No.43/2007)
Abinash Khemka .... Appellant
-versus-
The Commissioner for Employees .... Respondents
Compensation-cum-Asst. Labour
Commissioner, Balasore and another
Advocate(s) appeared in this case:-
For Appellant : Mr. S.S. Sahoo, Advocate
For Respondents : Mr. A.S. Nandy, Advocate
For Respondent No.2
CORAM: JUSTICE B.P. ROUTRAY
JUDGMENT
22nd August, 2022
B.P. Routray, J.
1. Present appeal by the employer is directed against judgment
dated 6th April, 2016 of the learned Commissioner for Employees
Compensation and Asst. Labour Commissioner, Balasore in E.C. Case
No.43/2007 wherein compensation to the tune of Rs.1,52,012/- has
been granted to the claimant-Respondent No.2 on account of injury
sustained in course of and arising out of the employment.
.
2. The facts of the case are to the effect that the workman-claimant
was working as a machine operator under the establishment of
Appellant namely M/s. Mayur Biscuits Factory at Baripada. On
26.05.2004, the workman sustained personal injury while cleaning
rejected products from the machine and his left hand was accidentally
crushed into the machine. He was immediately shifted to the hospital
and in course of treatment his left hand from the wrist was amputed.
3. The learned Commissioner upon adjudication of the claim
directed for payment of compensation of Rs.1,52,012/-.
4. The employer has come up in appeal challenging of such award
of compensation mainly on the ground that the application for
compensation was filed beyond the statutory period of two years as
contemplated under Section 10 of the Employees Compensation Act,
1923 (hereinafter referred to as "E.C. Act") and further, the amount
spent by the employer for the treatment of the workman as well as the
amount of Rs.1,50,000/- paid to the workman are not considered by the
Commissioner. It is also submitted that the document like disability
certificate under Ext.5 has been considered by the learned
Commissioner in violation of Rule 21 of the E.C. Rules for awarding
the compensation.
5. On the other hand, the claimant filed his cross objection
claiming for payment of interest @12% per annum and to count his
disability towards loss of 100% earning capacity.
6. So far as the grounds of the employer on limitation in filing the
application is concerned, admittedly the claim application has been
presented around 3 and half years after the accident. But the fact
remains that along with the claim application, a petition praying to
condone the delay was also filed. It is a mistake on the part of the
learned Commissioner not to pass any order on such petition filed
along with the claim application. The Commissioner perhaps has
forgotten to pass any order on the same. But his approach to determine
the claim application on merit suggests that the delay in lodging the
claim application has been deemingly condoned. Perusal of copy of the
order-sheets as filed by the Appellant supports such a conclusion. No
fault is seen on the part of the claimant for the delay in his approach to
the Commissioner since he has taken all possible steps due on his part
and for any fault on the part of the Commissioner due to his
inadvertence, the poor claimant-workman should not be allowed to
suffer.
7. With regard to next contention of the employer that he has spent
Rs.1,02,536/- towards treatment of the workman and has further paid
lump sum compensation of Rs.1,50,000/- after his recovery based on
an amicable settlement/agreement, the learned Commissioner has not
discussed it in the impugned award. Perusal of the copy of the written
statement filed by the Appellant reveals his clear averment to that
effect at paragraph 5 and 11, which remains uncontroverted. The
claimant has admitted the same during his cross-examination.
Therefore, the fact of payment of lump sum compensation to the
workman and expenses paid for his treatment by the employer is found
established on record. Failure on the part of the Commissioner to
consider and discuss the same in the impugned award amounts to
illegality or error apparent on the fact of record. If the employer is
found bona fide in offering treatment and lump sum compensation as
per agreement of the workman immediately after the accident, the
subsequent approach of the workman claiming compensation without
disclosing such facts seems unfair on his part. Learned Commissioner
has failed to appreciate this and his avoidance to consider such facts
certainly amounts to illegal exercise of the jurisdiction vested upon
him.
8. The provisions of the E.C. Act entitles the workman to get
compensation and authorizes the Commissioner to adjudicate upon the
same. But the provisions can only be invoked where the employer does
not accept the liability for payment of compensation and to the extent it
is claimed. Here in the present fact of the case, the employer is not
found in default in paying such compensation due to the claimant as per
their agreement. On the other hand, the conduct of the workman is seen
malicious for suppressing such receipt of amount from the employer,
that too approaching the Commissioner after three and half years of the
accident. Under such circumstances since the payment of lump sum
amount by the employer upon amicable settlement with the workman
and spending of such expenditure towards treatment of the workman
remains undisputed, it is held that the claim application at the instance
of the workman at such a belated stage is not maintainable and the
workman is not entitled for any further compensation from the
employer.
9. In view of the discussions made above, the contention raised by
the claimants to get interest @12% per annum or loss of earning
capacity to the extent of 100%, need not be discussed further.
Otherwise also as per Serial No.4 of Part-II of Schedule-I, the extent of
loss of dependency is up-to 60% and the detail register of payment of
remuneration has been produced by the employer before the learned
Commissioner to count loss of earning capacity.
10. In the result, the appeal is allowed and the award is set aside.
The claimant-Respondent No.2 is not entitled to get any further
compensation. The amount deposited by the Appellant before the
Commissioner be refunded to him with accrued interest.
(B.P. Routray)
Judge
B.K. Barik/Secretary
