Rajasthan High Court - Jaipur
Raj Rajya Vidyut Prasaran Nigam Ltd vs Ram Niwas on 9 December, 2010
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. Civil Misc. Appeal No. 448/1995 (The Assistant Engineer, 132 K.V. GSS Versus Shri Ram Niwas) Date of Order :: 9th December, 2010 HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Amit Agarwal for Mr. Ashok Mehta, counsel for the appellant None is present for the respondent BY THE COURT:
Challenge in this appeal is to the award dated 13th March, 1995, whereby the Commissioner, Workmen's Compensation Act, Alwar, decreed an amount of Rs. 24,000/- in favour of the respondent and against the appellant.
2. Heard learned counsel for the appellant and carefully perused the relevant material on record including the impugned award.
3. Learned counsel for the appellant canvassed that the accident took place on 4.4.1992 wherein the claimant, being a helper, lost one phalanx of his right hand index finger. Such disablement falls under the category of 'permanent partial disablement' and the injury occurs at entry no. 29 in Part II of Schedule I of the Act. The claimant at the time of the accident was 45 years of age, for which the relevant factor is 169.44 as per Schedule IV and his monthly income was more than Rs. 1000/-. He further canvassed that entry No. 29 of Part II of Schedule I of the Workmen Compensation Act fixes the loss of earning capacity at 9% for loss of one phalanx of either finger. He further canvassed that Section 4(1)(c)(i) of the Act provides that in case of an injury specified in part II of Schedule I, such percentage of the compensation which would have been payable in case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury. He further canvassed that as per formula prescribed under section 4 (1)(c)(i) for computing the amount of compensation in case of permanent partial disablement, the amount of compensation comes to Rs. 50% X 1000 X 169.44 X 9% = Rs. 7624.80/-, whereas the learned Commissioner awarded an amount of Rs. 24,000/-, which is abysmally high and thus, the amount of compensation needs to be reduced and the impugned award passed by the learned Commissioner deserves to be modified. He has placed reliance on two judgments reported in 2007 ACJ 2004 & 1996 ACJ 98.
4. None is present for the respondent despite service.
5. Having ruminated over the submissions made by the learned counsel for the appellant and carefully scanned the relevant provisions of law, it is noticed that the claimant-respondent, being in the employment of appellant non claimant as a Helper lost one phalanx of index finger of his right hand which resultantly got amputated and he suffered 9% permanent loss of earning capacity as per the entry No. 29 in Part II of Schedule I of the Act. The learned Commissioner considered 10-15% permanent loss of earning capacity and having taken into consideration date of birth of the claimant, age, loss of earning capacity, salary, allowances and relevant factor, applied the formula as prescribed under section 4(1)(b) of the Act and thus, reckoned the compensation to the tune of Rs. 12,708/-. The learned Commissioner also held that since the amount of compensation came to be Rs. 12,708/- and the law envisages an amount equal to 50% of the monthly wages of the injured workman multiplied by relevant factor or an amount of Rs. 24,000/-, whichever is more, the respondent claimant was entitled to claim Rs. 24,000/-. This has been impugned by the appellant relying upon the afore-stated judgments.
6. In the case of Deep Metal Industries Versus B.D. Gaikwad reported in 1996 ACJ 78, the High Court of Judicature at Bombay dealt with the same issue and observed as under:
Section 4 of the Act provides the rule regarding payment of compensation. We are not concerned with Section 4 (1)(a) which pertains to death and section 4(1)(b) which pertains to permanent total disablement. We are concerned with section 4(1)(c) which provides for permanent partial disablement resulting from the injury. The compensation payable in the case of an injury specified in Part II of Schedule I is such percentage of the compensation depending upon the loss of earning capacity out of the amount of compensation payable calculated under section 4(1)(b) of the Act.
7. Similarly in the case of New India Assurance Co. Ltd. Versus T. Narasimha Murthy Raju and another reported in 2007 ACJ 2054, the High Court of Andhra Pradesh at Hyderabad observed thus:
12. In the recent past, Kerala High Court in Mar Themotheous Birth Centenary Press vs. Santosh Raj, 2001 ACJ 1085 (kerala) in Gopala Pillai v. Vasukutty, 2003 ACJ 797 (Kerala), held that where the injury sustained by a workman is the one mentioned in Part II of Schedule I to the Act, the authority does not have any power to assess the loss of percentage of earning capacity over and above what is indicated in the Schedule. In the instant case, injury suffered by respondent No. 1 occurs at entry No. 28 in Part II of Schedule I. Percentage of loss of earning capacity is specified as 11 per cent. There was no justification for the authority in ignoring the same.
8. Adverting to the facts of the instant case, it is noticed that the admitted case of the workman-respondent is that he had permanent partial disablement. It is part II of Schedule I, which is applicable to this case, which seems to have been lost sight of by the learned Commissioner for Workmen's Compensation. Under Part II for the loss of phalanx under item 29, percentage of loss of earning capacity is 9%. Hence, the partial loss of earning capacity due to the loss of phalanx of index finger of right hand comes to only 9% and not 10-15%, which the learned Commissioner is found to have considered for reckoning the amount of compensation. The instant case is a case of permanent partial disablement and the disability is 9% of the loss of earning capacity. In view of Section 4(1)(c), amount of compensation payable would be 9% of 84,720/-, which comes to Rs. 7624.80/-. Thus, the argument advanced by the learned counsel for the appellant is sustainable and the learned Commissioner is found to have erred in awarding entire amount of compensation in the sum of Rs. 24,000/-, which ought to have been 7,624.80. In fact the learned Workmen's Compensation Commissioner instead of reckoning the amount of compensation under Section 4(1)(c), computed the amount of compensation under Section 4(1)(b), which is not applicable in the instant case. Thus, the learned Commissioner having applied the incorrect provision of law, computed the amount of compensation, whereas he ought to have computed the amount of compensation under 4(1)(c) as it is admittedly a case of permanent partial disability.
9. In view whereof, the impugned award is found to be unjust and improper, which deserves to be set-aside.
10. Learned counsel for the appellant also canvassed that the sum of Rs. 8222/- had already been paid to the claimant even before he filed the claim petition. The appellant has deposited the difference amount of compensation (i.e. Rs. 15,778/-) also with the Commissioner, but the same has yet not been disbursed as the High Court had granted stay on the disbursement thereof. Learned counsel submitted that the amount so deposited with the Commissioner may be ordered to be returned to the appellant along-with the interest accrued thereon.
11. For the reasons stated above, the appeal succeeds and the impugned award dated 13th March, 1995 passed by the Workmen's Compensation Commissioner, Alwar is modified to the extent that the respondent-claimant shall be entitled to claim only an amount of Rs. 7,624.80/- as compensation instead of Rs. 24,000/-. The amount of Rs. 8,222/- has already been paid to the respondent non claimant, hence the difference amount of compensation (Rs.15,778/-), if yet not disbursed to the claimant-respondent, be returned with interest accrued thereon to the appellant-non claimant.
12. The award is modified, as indicated here-in-above and the appeal stands disposed of accordingly.
13. There shall be no order as to costs.
(MAHESH BHAGWATI),J.
DK/