Himachal Pradesh High Court
National Construction Co. House vs Sham Mahajan And Another on 21 February, 2022
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 21st DAY OF FEBRUARY 2022
.
BEFORE
HON'BLE MR. JUSTICE VIVEK SINGH THAKUR
FIRST APPEAL FROM ORDER NO.313 of 2011 WITH FIRST
APPEAL FROM ORDER No. 442 of 2011
FAO (WCA)NO. 313 OF 2011
Between:
SH. SHAM MAHANAN SON OF SHRI CHUNI
LAL MAHAJAN SOLE PROPRIETOR OF M/S
NATIONAL CONSTRUCTION CO. HOUSE
NO.688, SECTOR 16, PANCHKULA
APPELLANT
( BY MR. J.S BHOGAL, SR. ADVOCATE WITH
MR. TARUNJEET SINGH BHOGAL,
ADVOCATE).
AND
1.SHRI GIRI RAJ SON OF SHRI GEETA RAM
RESIDENT OF VILLAGE SUNIL RUG, P.O
LAGDAGHAT TEHSIL NALAGARH,
DISTRICT SOLAN,HP.
...RESPONDENT
2.THE EXECUTIVE ENGINEER NALAGARH
DIVISION, HPPWD NALAGARH, DISTRICT
SOLAN.
MR. JIA LAL BHARDWAJ, ADVOCATE
FOR R1 ....PROFORMA
RESPONDENT
MS. RAMEETA RAHI, ADDITIONAL
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2
ADVOCATE GENERAL WITH
MR.RAJU RAM RAHI, DEPUTY ADVOCATE
GENERAL FOR R2
.
2. FAO (WCA) NO. 442 OF 2011
SHRI GIRI RAJ SON OF SHRI GEETA RAM
RESIDENT OF VILLAGE SUNIL RUG, P.O
LAGDAGHAT TEHSIL NALAGARH,
DISTRICT SOLAN,HP.
APPELLANT
(BY MR.JIA LAL BHARDWAJ, ADVOCATE)
AND
1.SHAM MAHANAN SON OF SHRI CHUNI
LAL MAHAJAN SOLE PROPRIETOR OF M/S
NATIONAL CONSTRUCTION CO. HOUSE
NO.688, SECTOR 16,
PANCHKULA,HARYANA
2.THE EXECUTIVE ENGINEER, HIMACHAL
PRADESH PUBLIC WORKS DEPARTMENT
ARKI,TEHSIL ARKI, DISTRICT SOLAN ,HP.
RESPONDENTS
(MR. J.S BHOGAL, SR. ADVOCATE WITH
MR. TARUNJEET SINGH BHOGAL,
ADVOCATE, FOR R1
MS. RAMEETA RAHI, ADDITIONAL
ADVOCATE GENERALS WITH
MR.RAJU RAM RAHI, DEPUTY
ADVOCATE GENERAL FOR
R2.
Whether approved for reporting? Yes
This appeal coming on for orders this day, the Court delivered the
following:
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3
JUDGMENT
.
These appeals, arising out of common order dated 09.06.2011 passed by the Commissioner Employee's Compensation, Court No.2, Nalagarh, District Solan, H.P. (hereinafter shall be referred as ' Commissioner' for convenience) in Claim Petition No. 8/2/2011/2003 titled as Giri Raj Vs. Sham Mahajan and another, are being decided by this common judgment, as common questions of facts and law are to be appreciated on the basis of common evidence on record for determining the substantial questions of law framed at the time of admission of these appeals.
2. FAO No. 313 of 2011 has been preferred by the employer respondent (hereinafter shall be referred as 'employer' for convenience). In this appeal, following substantial questions of law have been framed at the time of admission on 6.09.2011:
1. "Whether learned Commissioner could have awarded compensation assuming a loss of earning capacity of 30% even in absence of any evidence to that effect and in the face of the medical evidence to suggest that the disability to the whole body was only 15% ?
2. Whether learned Commissioner could have imposed any penalty without conducting any separate proceedings to determine the liability of the appellant to pay such penalty and without affording the appellant opportunity to show cause against the same?"::: Downloaded on - 21/02/2022 20:11:00 :::CIS 4
3. FAO No. 442 of 2011 has been preferred by the claimant .
employee(hereinafter shall be referred as 'employee' for convenience). In this appeal following substantial question of law has been framed at the time of admission on 03.04.2012:
1. Whether learned Commissioner is right in assessing the compensation taking 30% disablement of the appellant, especially when 30% disability of the appellant who was a workman doing the avocation of a Drill man/Labourer was 100% qua his earning capacity ?
2. Whether learned Commissioner is right in holding that there is no evidence of loss of earning capacity more than disablement in view of the evidence led by the appellant that after the accident he is unable to do any hard work which evidence has not been rebutted by the respondents?"
4. Claim of the employee is that while he was working as Drillman with employer for construction of road at a work being executed by the employer for H.P. Public Works Department, he received injury on 19.08.2008 in an accident occurred on the work place causing 30% disability to him resulting loss of 100% earning capacity and therefore, compensation determined @ 30% loss of earning by the Commissioner is erroneous and instead it deserves to be increased by calculating on the basis of 100% loss of earning capacity.::: Downloaded on - 21/02/2022 20:11:00 :::CIS 5
5. Claim of employer is that there is no evidence of loss of 30% earning capacity, much less 100%, and, therefore, .
compensation awarded to the employee is on higher side as it has come in evidence of PW1 Dr. Anil Bansal that overall disability of body shall be counted as 15% in total, and also the penalty imposed on the employer is also liable to be set aside as it has been imposed without granting any opportunity to the employer to show cause. r
6. So far as employee and employer relationship is concerned, that stands determined by this Court in judgment dated 22.09.2010 passed in FAO No. 423 of 2005 titled as Giri Raj versus Sham Mahajan and another in earlier round of litigation between parties in this Court. Thereafter, vide aforesaid judgment the claim petition, which was earlier dismissed by the Commissioner by holding that there was no employee and employer relationship, was remanded back to the Commissioner for deciding afresh.
7. Learned counsel for the employee has submitted that disability of the employee stands proved in the statement of PW1 Dr. Anil Bansal, who, in his crossexamination, has stated that the employee can walk but he would face difficulty in movement.::: Downloaded on - 21/02/2022 20:11:00 :::CIS 6
Further, deposition of claimant PW3 Giri Raj, in his examination inchief, that he is unable to do any hard work, has also not been .
disputed in the crossexamination and, therefore, the same stands admitted and therefore, there is sufficient evidence on record to establish that there is loss of 100% earning capacity.
8. Learned counsel for the employee has placed reliance upon the judgment dated 15.03.2019 passed by a Coordinate Bench of this Court in FAO No. 336 of 2018 titled as Prakash Chand Vs. Babu Ram and others, wherein for 30% disability of the claimant, 100% disability qua his earning capacity was taken into consideration for determining the compensation. Learned counsel for the employee has also placed on record a photocopy of order passed by the Apex Court on 29.07.2019 in Prakash Chand's case, whereby SLP preferred. by the Insurance Company against the said judgment was dismissed.
9. Learned counsel for the employee has also referred pronouncements of various Courts in New India Assurance Company Limited versus Jagdish Ram and another reported in (2007) ACJ 806, Raju versus Sardar Jasbir Singh reported in latest HLJ 2008 (HP) 1478, Divisional Forest ::: Downloaded on - 21/02/2022 20:11:00 :::CIS 7 Officer, Karsog versus Budhi Singh reported in 2006 ACJ 1851,Sunita Devi vs. Shanti Devi and others reported in .
Latest HLJ 2009 (HP)596, Beli Ram Vs.Rajinder Kumar reported in (2010) ACJ 1653, Saberabibi Yakubbhai Shaikh and others versus National Insurance Company Limited and others in (2014) 2 S.C.C 298, Jaya Biswal & others versus Branch Manager, Iffco Tokio General Insurance Company Limited and another reported in (2016) 11 SCC 201 and Krishna Devi & others versus Harjit Singh and another reported in 2018(3)Him.L.R (HC)1618.
10. Learned counsel for the employer has referred to the statement of PW1 Dr. Anil Bansal, wherein in crossexamination he has stated that the disability of entire body is to be counted about 15% and pointing out further that the doctor is silent about the percentage of loss of earning capacity and further that PW3 Giri Raj in his statement has nowhere claimed that he had suffered loss of 100% earning capacity.
11. Learned counsel for the employer has also submitted that as the employer had not admitted employee and employer relationship, there was no question of making payment of any ::: Downloaded on - 21/02/2022 20:11:00 :::CIS 8 amount to the employee immediately after the alleged accident or within one month thereafter and it is for the judgment passed by .
this High Court that relationship of employee and employer has been considered to have been established in the year 2010 and, therefore, imposition of penalty by the Commissioner, where relationship of employee and employer was in dispute, is not only erroneous, but against the law.
12. Claims and counterclaims raised in these appeals, by the parties herein, are to be determined on the basis of evidence on record, particularly statement PW1 Dr. Anil Bansal and PW3 Giri Raj, and considering the disability certificate Ext.P1.
13. Quantum of compensation under Employee's Compensation Act is to be determined on the basis of loss of earning capacity. It is settled law that loss of earning capacity can be greater than or lower than the disability, permanent or temporary, suffered by an employee in accident, depends on the avocation of the victim/injured and effect of disability thereon.
Therefore, normally, percentage of disability of the body or any limb cannot be a basis for determining the loss of earning capacity in all cases. It may or may not be relevant for deciding ::: Downloaded on - 21/02/2022 20:11:00 :::CIS 9 the quantum of loss of earning capacity in given facts and circumstances.
.
14. In present case, in Medical Certificate Ext.P1, Medical Board has determined permanent locomotor impaired disability of 30% lower leg. But, percentage of loss earning capacity has not been determined in this certificate. PW1 Dr. Anil Bansal was Member of Board which has issued the certificate, but in his examinationinchief, he has only stated that during check up of the employee, he was found to have suffered 30% disability.
In his crossexamination he has stated that total disability of the body would be counted about 15%. He has further stated that the patient can move but he would suffer difficulty in that. In the statement of doctor, no specific averment with respect to loss of earning capacity has come on record. PW3 Giri Raj in his examinationinchief, has stated that he remained admitted, for his medical treatment, in Government Hospital, Bilaspur and thereafter he remained under treatment from I.G.M.C. Shimla, and further, that accident was reported to the police. A copy of report recorded by the police is Ext.PW2/A. Thereafter, he has also stated that he has studied up to 5th class only and he is not able to do hard work. In his crossexamination, he has stated that ::: Downloaded on - 21/02/2022 20:11:00 :::CIS 10 he is not having any certificate or Diploma of Drillman,and neither before 19th July, 2010 nor thereafter he had worked as a .
Drillman, but he has also stated that he was having experience of working as a Drillman. However, no document or any other evidence has been brought on record to establish that he was having any experience of working as a Drillman. In normal course, it would have been considered that he had been working as Drillman with employer since long or was having experience of working as such. However, for his own admission that he had not worked as a Drillman prior or after 19.07.2010 creates a doubt about his claim of having experience as a Drillman, more particularly keeping in view his age of less than 17 years
15. Judgment in Prakash Chand's case, referred on behalf of employee, wherein 30% disability of body was considered sufficient for loss of 100% earning capacity, is not strictly applicable in the present case as in that case it had come in evidence that the petitioner therein was a Driver by profession and 30% disability of right lower limb had rendered him incapable of driving the vehicle, as in driving, there is active role of right lower limb also and thus, keeping in view the avocation of the petitioner therein, and the injury suffered by him, it was concluded that he ::: Downloaded on - 21/02/2022 20:11:00 :::CIS 11 was not fit for driving after accident, after suffering 30% disability of lower limb. Therefore, compensation was determined on the .
basis of 100% loss of earning. In present case, avocation of the petitioner, at the most, is Drillman and there is no positive evidence on record to establish that he has become unfit to work as a Drillman or even as a Labourer. However, for the nature of work of a Labourer and Drillman, it can be presumed that a person with 30% permanent disability of left lower limb would definitely be in difficultly for performing his work as a Labourer or Drillman with full efficiency. But at the same time, it is also a matter of record that the employee has not stated in so many words that he is unfit for doing any kind of work or labour work.
16. Similarly in case New India Assurance Company Limited versus Jagdish Ram and another reported in (2007) ACJ 806, there was evidence on record that the driver of the truck, having sustained 30 per cent permanent disablement in his leg, was no longer able to drive any vehicle and, therefore, he was held entitled to compensation for total loss of earning capacity. In case of Raju versus Sardar Jasbir Singh, reported in Latest HLJ 2008 (HP) 1478, also there was disability to the extent of 45% on both the lowerlimbs and it was proved by the doctors that ::: Downloaded on - 21/02/2022 20:11:00 :::CIS 12 claimant was not able to perform the work of conductor, driver or labourer any more and he was not able to perform any job and .
thus loss of earning, for 45% disability on both lower limbs, was considered as 100%. But the evidence in present case is not like that.
17. From the evidence on record, it cannot be said that the employee has become completely unfit for any kind of job.
Undoubtedly, working as a Drillman he would have got remuneration much more than a normal labourer. But at the same time, it is also fact that he was not having any certificate or Diploma of handling the drill machine at relevant point of time.
However, it can also not be ignored that at the time of accident, employee was of less than 17 years and thus there was always a probability of gaining experience or obtaining Diploma/certificate by him, with passage of time, to handle the drill machine. It is also a fact that at the time of accident though he was working as a skilled man, but he was an unskilled labour. For want of any contrary evidence on record, it can be presumed that he is able to work as a labourer. It is also claim of the employee that he is unable to do hard work which has not been questioned in cross ::: Downloaded on - 21/02/2022 20:11:00 :::CIS 13 examination, but at the same time, no where he has stated that he cannot do any work at all.
.
18. In Chapter 22 of the Himachal Pradesh Development Report published by Planning Commission, Government of India, in Chapter 22.3, it has been published that average daily rate of unskilled labourer in 200001 was Rs.89.83/ say Rs.90.00/ and average daily rate of skilled workman was 153.04 say Rs.153/. It is claim of the employee that he was getting wages @150/, which is nearer to the average daily wage rate of a skilled workman published by the Finance Commission, Government of India at relevant time. Even if it is considered that the employee is not able to work as a Drillman, then also, on the basis of the evidence on record, it cannot be construed that he is totally unfit for doing any kind of labour work. He can definitely perform the job of simple labourer. In such an eventuality, loss which would be suffered by him would be 15090=60/ which is 40% of 150/.
19. Undoubtedly, for the permanent disability suffered by the employer, he has suffered loss of earning capacity but percentage of loss of earning has not been referred or questioned either in certificate or in statement of PW1 Dr. Anil Bansal, rather in crossexamination PW1 has stated that over all ::: Downloaded on - 21/02/2022 20:11:00 :::CIS 14 disability to body would be 15%. At the same time, he has also stated that employee shall face difficulty in movement. For such .
kind of evidence i.e disability certificate as well as deposition of PW 1 Dr. Anil Bansal, the Commissioner has rightly determined the loss of earning capacity @30%. I do not find any material on record to interfere in the findings returned by the Commissioner in this regard.
20. So far as the imposition of penalty is concerned, relationship of employee and employer stands determined by the High Court in FAO No. 423 of 2005 filed earlier by the employee.
The said findings have not been assailed by the employer and, therefore, for such established relationship, the employer was duty bound to pay the compensation or atleast some amount of compensation which, according to him, was payable to the injured employee at the time of accident or at the most within one month thereafter in consonance with and in compliance of provisions of the Act. But the employer even after passing of judgment by the High Court in FAO No. 423 of 2005, whereby relationship of employer and employee was decided to be in existence, the employer has failed to pay any amount within reasonable period which delayed the payment of compensation of the employee.::: Downloaded on - 21/02/2022 20:11:00 :::CIS 15
21. In case Divisional Forest Officer versus Budhi Singh reported in 2006 ACJ 1851 employerState, despite having .
knowledge of death of workwoman and her wages, had failed to deposit the compensation as soon as it was payable. Therefore, penalty imposed by the Commissioner on the employerState was upheld by learned Single Judge of this High Court.
22. In case Sunita Devi vs. Shanti Devi reported in Latest HLJ 2009 (HP) 596, learned Single Judge of this High Court has held that as employer was fully aware about the case of the claimants including prayer for imposition of penalty, therefore, no separate show cause notice was required to be issued for imposition of penalty at the time of determination of the amount of compensation and penalty by the Commissioner. Therefore, I find no ambiguity, illegality or irregularity in imposition of penalty also.
23. In case Saberabibi Yakubbhai Shaikh and others versus National Insurance Company Limited and others in (2014) 2 S.C.C 298, referred on behalf of employee, it was held that claimants were entitled for 12% interest from the date of accident. In present case though no substantial question of law, ::: Downloaded on - 21/02/2022 20:11:00 :::CIS 16 with respect to rate of interest and date from which it is payable, has been framed, however, the Commissioner has already awarded .
interest at the rate of 12% from the date of accident. Therefore, this judgment has no relevance.
24 Pronouncements in cases Beli Ram Vs. Rajinder Kumar reported in (2010) ACJ 1653 and Krishna Devi & others versus Harjit Singh and another reported in 2018(3)Him.L.R (HC)1618 have been referred for taking into consideration the wages of the employee as claimed on his behalf before the Commissioner, by contending that neither employer nor employee has produced any documentary evidence in this regard, whereas, as also observed by the Supreme Court in case titled as Jaya Biswa & others versus Branch Manager, Iffco Tokio General Insurance Company Limited and another reported in (2016) 11 SCC 201, it was duty of the employer to maintain the Register and records of wages as provided under Section 13A of the Payment of Wages Act 1936. No substantial question of law has been framed in this regard also. However, it is also apt to record that in present case the employee has claimed his wages at the rate of Rs. 150 per day and for calculation of amount of ::: Downloaded on - 21/02/2022 20:11:00 :::CIS 17 compensation, his wages have been taken as claimed by him at the rate of Rs.150/per day.
.
25. Substantial questions of law framed in both these appeals are answered in aforesaid terms.
26. In view of above discussion, I find no merit in both these appeals and accordingly same are dismissed, so also the pending application(s), if any.
(Vivek Singh Thakur) Judge.
21st February 2022, (veena) ::: Downloaded on - 21/02/2022 20:11:00 :::CIS