Orissa High Court
Kudupudi Chhitabhai vs Aintha Tarai on 17 June, 1986
Equivalent citations: 2(1986)ACC429
JUDGMENT S.C. Mohapatra, J.
1. Employer is the appellant in this appeal under Section 30 of the Workmen's Compensation Act, 1923 (hereinafter referred to as 'the Act').
2. In course of hearing Mr. D.K. Misra, the learned Counsel for the respondent raised an objection that the appeal is barred by limitation of one day. The Stamp Reporter of the Court has not pointed out the defect and the appeal has been entertained by this Court. Though Mr. Parija, the learned Counsel for the appellant, initially submitted that the appeal is not barred by limitation, ultimately he accepted that the appeal is barred by limitation. He made oral prayer for condonation of delay of one day which is on account of mis-calculation of the last date by the learned Counsel. Oral prayer for condonation of delay under Section 5 of the Limitation Act has been entertained by this Court in the past. In I.L.R, 1975 Cuttack 1347 Chittaranjan Sahu v. Collector, Dhenkanal, B.K. Ray, J. observed:
...The settled view of this Court is that a Court can condone delay in filing an appeal or application beyond time without a formal application being made by the party concerned....
2. In view of the aforesaid observation I accepted the oral prayer and considered the question on merit. Bona fide and honest miscalculation of a learned Counsel is a sufficient cause specially when the Stamp Reporter proficient in the matter of calculation has also not pointed out the delay. My view finds support from a decision of this Court reported in I.L.R. 1965 Cuttack 4 Bhagirathi Padhan and Ors. v. Achuta Padhan where not only the junior counsel committed the mistake in calculation but many senior advocates and Benches of the High Court also committed the same mistake. Since the mistake was held to be honest and there was no negligence, the delay was condoned in that case. In the circumstance, the oral prayer for condonation of delay of one day is acceptable. Taking into consideration was fact that a valuable right of the respondent is being taken away, I direct the appellant to pay a cost of Rs. 300/- (Rupees three hundred) to the respondent which would mitigate the prejudice caused to him. This amount shall be paid from out of the awarded amount kept in deposit.
3. In this appeal there is no dispute that the respondent sustained injuries by his thumb and first phalanges of the middle finger and ring finger were blown up by gun powder. The claim for compensation by the respondent was disputed on the ground that he is not the employee of the appellant. Though Mr. A.K. Parija, the learned Counsel for the appellant: seriously contended that on the materials on record a reasonable view cannot be taken that the appellant is the employer of the respondent, I am satisfied on perusal of the record that there are materials in support of the relationship of employer and employee and the same being a question of fact cannot be gone into in this appeal since it is to be confined to substantial question of law only.
4. Relying upon the various relevant entries in the First Schedule, Part II of the Act, Mr. Parija submitted that the award of 60% compensation is contrary to the statutory provision. Whether the compensation is in accordance with the rates prescribed in the Schedule is to be examined whether the respondent is entitled to 60% compensation. Mr. D.K. Misra, the learned Counsel for the respondent, submitted that there is clear entry in the schedule for loss of hand for which 60% compensation is payable, According to him, the loss of the thumb and first phalanges of the middle finger and ring finger would amount to loss of hand itself and there it no scope for interference in this appeal.
5. Rates have been prescribed for various injuries. When they clearly come within the language of the Schedule, there is no scope for drawing an inference about the cumulative effect of all the injuries. Besides, the loss of thumb and first phalanges of the middle finger and ring finger cannot be said to be loss of hand itself, since the remnants of these two fingers and two other full fingers with the palm would be available to discharge the function of the hand. The submission of Mr. D.K. Misra is not acceptable.
6. Mr. A.K. Parija is justified to submit that the rates prescribed for loss of various limbs are to be added together for computing the compensation. The rate of compensation for loss of thumb is 30% as provided in Schedule I, Part II, Item No. 5. Similarly, item No. 33 thereof provides for 7% compensation for loss of one phalanx of middle finger and item No, 37 thereof provides for 5% compensation for loss of one phalanx of the ring finger. Thus, the total compensation payable to the respondent is 42% and not 60%. To this extent the award is liable to be set aside.
7. The rate of compensation is a mathematical calculation. For 60% compensation, Rs. 18,144/-has been awarded. Thus, 42% compensation comes to Rs. 12,700.80 paise which the respondent is entitled to get from the appellant.
8. Mr. Parija submitted that the rate of wages of the respondent is not supported on cogent materials. On perusal of the record, I find that there are materials to support the monthly wages claimed by the respondent as found by the Commissioner. This is a pure question of fact.
9. I have awarded Rs, 300/- as costs while condoning the delay and the same is directed to be paid out of the amount in deposit. Thus, the respondent will be entitled to get a total sum of Rs. 13,000.80 paise from the appellant. After payment of the said amount, the balance amount would be refunded to the appellant.
10. In the result, the appeal is allowed in part. There shall be no order as to costs.