Kerala High Court
Kerala Minerals And Metals Ltd. vs Raman Nair on 11 December, 1997
Equivalent citations: 1998ACJ868, (1998)ILLJ933KER
Author: Ar. Lakshmanan
Bench: Ar. Lakshmanan, K.A. Abdul Gafoor
JUDGMENT Ar. Lakshmanan, J.
1. Heard both sides. All the three appeals arise out of the orders passed by the Commissioner for Workmen's Compensation, Kollam in W.C.C.No. 84/1988, 64/1988 and 63/1988. The Kerala Minerals and Metals Ltd. which is the opposite party before the Commissioner for Workmen's Compensation is the appellant in all the three appeals. The respondents were working in the appellant company. The parties to the proceedings and the points for determination in all the three appeals are one and the same. Hence by consent of both the parties all the three appeals were taken up together for final hearing.
2. The respondent in M.F.A.220/1993 is a worker, Grade I under the appellant. He filed an application under Section 22 of the Workmen's Compensation Act, 1933, hereinafter referred to as the Act before the Commissioner for Workmen's Compensation, Kollam, hereinafter referred to as the Commissioner claiming an amount of Rs. 45,927/- from the appellant alleging that he sustained personal injury on November 19, 1985 by accident which arose out of and in the course of his employment with the appellant. The workman alleged in the application that on account of the accident his thumb on the 1 left hand was crushed due to breakage of the axle of the loaded truck.
3. The Management has refuted the claim of the workman and contended that after the accident the workman is getting the same emoluments which he was drawing at the time of the accident and therefore no loss or damage caused to the workman as a result of the injury.
4. The Commissioner after considering the evidence both oral and documentary directed the management to pay a sum of Rs.22,964/-with 6% interest from December 17, 1988 to the workman as compensation for permanent disablement and sustaining 30% loss of earning capacity.
5. M.F.A.221/1993 was also filed by the same management against another worker who raised similar contentions and claimed a compensation of Rs. 25,000/- alleging that he sustained injuries during employment and that when he was removing stones from the pit, his right thumb accidentally touched the brim of the bucket and sustained an injury on his right thumb and thumb fractured. The management refuted the contention as in the other case. The Commissioner awarded a compensation of Rs. 19,250/- together with interest at 6% from November 2, 1988 to the workman and has also assessed the loss of earning capacity as 30% due to the injury.
6. M.F.A.33271993 was again filed by the same management against few other workers against the order of the Commissioner for Workmen's Compensation. In this case, the workman has claimed a sum of Rs. 25,000/-from the Management alleging that he sustained personal injury on January 30, 1987 by accident arising out of and in the course of his employment. The workman has alleged that while he was on duty on January 30, 1987 the finger on his ring hand got in between the wheel of the truck and the rail on which it was run and consequently the middle finger and ring finger on the right hand was crushed and fractured. The Commissioner fixed the loss of earning capacity at 19% and awarded a compensation of Rs. 12, 191/- with 6% interest from November 2, 1988.
7. At the time of hearing the learned counsel for the appellant raised the only legal contention. According to the learned counsel for the Management that since the workman has not suffered loss of earning capacity which alone will make the management liable for compensation under Section 4(1)(c)(ii) of the Act and that mere loss of some fingers or other injuries without there being loss of earning capacity the workman will not be entitled for compensation. He further submitted that since the workmen were being continued in service they will not be entitled to any compensation for the injury sustained by them. In support of his contention the learned counsel for the management cited the decision reported in Sewa Singh Ladha Singh v. Manager, Indian Hume Pipe Co. Ltd. AIR 1964 Punjab 512. The above ruling was rendered by a learned single Judge of the Punjab High Court. In that as, the appellant was working as a fitter with the respondent company and the appellant sustained a fracture on his right leg and was hospitalised for a period of five months from where he was discharged on December 1, 1959. Thereafter the appellant has been continuously employed with the respondent company after his permanent disability. The claim of the workman was founded on Clause (c) of Sub-section (1) of Section 4 of the Workmen's Compensation Act, 1923 which provides that compensation would be payable where permanent partial disablement results from the injury. It was contended on behalf of the management that should the appellant be discharged and compelled to seek employment elsewhere at a reduced wage he would be entitled to claim compensation under Section 4 Sub-section (1) Clause (c) Sub-section (ii) of the Act. The learned Single Judge of the Punjab High Court held that in assessing compensation under Section 4(1)(c)(ii) the loss of earning capacity of a workman as a result of his permanent total disablement has to be taken into consideration and indeed the compensation has to be made proportionate to the loss of earning capacity. Therefore, where the workman after his permanent total disablement due to an accident was continuously employed to do the same work which he was doing before the accident and received full wages as well as increments which had accrued since the time when he was discharged from the hospital, the Court held that there was no loss of earning capacity and hence the workmen's claim for compensation under Section 4(1)(c) Sub-clause (ii) was not maintainable.
8. With respect we are unable to subscribe to the view expressed by the learned single Judge of the Punjab High Court in the above judgment. The Madras High Court, Orissa High Court and the Rajasthan High Court have taken diametrically opposite views. We shall now refer to the decision of the Division Bench of the Madras High Court reported in the Management of Sree Lalithambika Enterprises, Salem v. S.Kailasam (1988-I-LLJ-63). The above ruling was rendered by a Division Bench of the Madras High Court. In that case, the Management has preferred the appeal against the judgment of the Additional Commissioner for Workmen's Compensation, Coimbatore and the learned single Judge of the Madras High Court insofar as the workman has been awarded compensation in a sum of Rs. 11,020. 80 under the Workmen's Compensation Act. The workman in that case filed petition under Section 10 of the Act claiming compensation for the loss of four fingers in his left hand due to an accident which took place on August 17, 1978. The said accident took place in the course of the employment in the appellant's enterprises. The management opposed the claim inter alia on two grounds (1) the accident took place on a day which was a holiday for the factory and (2) in any event, by the loss of four fingers on the left hand the workman had not suffered any loss of earning capacity under Section 4(1)(c). Both the above contentions have been negatived by the Additional Commissioner for Workmen's Compensation and the compensation was awarded. Some points were reiterated before the learned single Judge. The decision of the Punjab High Court in Sewa Singh v. Indian Hume Pipe Co. (supra) was also cited by the Management. Mohan, J. as he then was speaking for the Division Bench observed as follows:
"We have given our very careful consideration to the above arguments. We are of the view that both the points raised by the learned counsel for the appellant are not sustainable. In this case, the evidence discloses that the accident took place round about 9.30 a.m. because by 9.40 a.m. a medical officer by name Dr. Sundaramurthi had come to treat the workman when the latter was brought to the hospital of which due intimation was given to the police. Therefore, though the management had examined the Manager of State Bank of Travancore to the effect that he inspected the factory at 11 a.m. on August 17, 1978, and that it was a holiday, that will not advance the case of the appellant. In as much as the accident took place during the course of cleaning the machinery certainly it must be held to be 'in the course of employment'. We see no reason to dislodge the factual finding.
Coming to the scope of Section 4(1)(c)(ii) of the Act, we are of the view that the loss of earning power should not be confined only to the present capacity because it is contended by the management that at the same salary the workman is continued in employment. That will be only begging the question. If this were to be the law, the employer can easily evade the provisions of the Act by continuing the employment on the same terms as was enjoyed by the workman prior to the accident. Therefore, we are unable to agree with the view taken by the Punjab High Court in Sewa Singh v. Indian Hume Pipe Co. (supra). Nor again can it be said that if in future the workman is compelled to seek employment at reduced wages he can claim compensation. That would only result in the negation of the beneficial provisions of the Act which are intended to benefit unfortunate workmen like the respondent herein. Added to this, should the management wind up its business, the workman will be in the lurch because no person with his eyes open will give employment to a person who had suffered an injury of this kind. Therefore, this is clearly a case to which Section 4(1)(c)(ii) of the Act would apply. Consequently, we agree with the judgment forming the subject matter of the appeal".
9. The decision Executive Engineer, PWD (DLR), Udaipur v. Narain Lal (1978-I-LLJ-141) (Raj) is another judgment against the management. In that case also for the injuries sustained during the course of employment the workman claimed a compensation of Rs. 4,800/-. The management challenged the award on the ground that there was no permanent partial disablement and there was no loss of earning capacity and the workman continued in the same service and earning the same emoluments. The learned single Judge of Rajasthan High Court held as follows at p. 146:
"Held, the Workmen's Compensation Act is to provide security to the workmen who sustain partial incapacity resulting in the earning capacity. This statutory protection is independent of the acts of grace or mercy which the employer might show him. In the welfare State, the protection afforded to the workman cannot be allowed to rest on the mercies of the employer. If the employer does so, it is commendable, but the workman still has a stake in his employment which is guaranteed to him under the Workmen's Compensation Act. Therefore, the loss in the earning capacity has to be calculated in terms of the permanent partial disability to which the workman has been subjected to".
10. Another judgment rendered by a learned single Judge of the Orissa High Court can also be usefully referred to in the present context. Before the said Court the management has taken the plea that in case of continuance of engagement and non-reduction in earning, compensation is not payable. The said argument of the management did not find favour with the Court. The Court held:
"In considering the loss of earning capacity in the case of permanent partial disablement, the comparison between the wages drawn by the workman before and after the accident, from his employer at the time of the accident, is not the determinative factor. If that be so, a cunning employer to tide over the liability may offer a temporary employment to the claimant- workman to deprive him his entitlement under the Act. That would be against the legislative intent. The plea that there being no loss in the wages, compensation could not have been awarded, cannot be accepted."
11. We respectfully agree with the Division Bench judgment reported in (1988-I-LLJ-63) (supra). The Division Bench of the Madras High Court and the judgments rendered by the Orissa and Rajasthan High Courts are a direct answer to the question of law raised by the counsel for the appellant at the time of hearing. We therefore, dismiss all the three appeals. C.M.P.No. 911/1993 in M.F.A.No. 220 of 1993-A, C.M.P. No. 914/1993 in M.F.A. No. 221 of 1993- A and C.M.P.No. 1417/1993 in M.F.A.No. 332 of 1993 also stand dismissed. No costs.