Karnataka High Court
Aslam Sirdar Ahmed Bepari vs Mohamed Ghouse Kutbuddin Dharwadkar ... on 25 March, 1997
JUDGMENT Hari Nath Tilhari, J.
1. This appeal is under Section 30 of the Workmen's Compensation Act.
2. The facts of the case in brief are the appellant had filed claim petition under Section 22 of the Workmen's Compensation Act, 1923 (hereinafter referred to as 'the Act'). The claimant-applicant had been the cleaner with respondent 1 in the appeal. According to claimant's case on 22.5.1991 when claimant was discharging his job as coolie-cum-cleaner in vehicle No. MEH 4302 of respondent 1, in course of his duty and service the accident did take place in village Janapalaiah, P.B.Road, N.H. No. 4, Tumkur District and in that accident the claimant sustained injuries. That in course of his employment and while discharging his duties as a cleaner, the injuries that the claimant has sustained have been fracture of left legal palm and certain other injuries in waist and in stomach. The claimant has asserted that he was getting in total a sum of Rs. 2,000/ p.m. as wages, Rs. 1,500/- as the fixed wages and Rs. 500/- as batta. A notice had been issued to respondent 2 in the case, namely, the Insurance Company and it filed the written statement. Respondent 1, the employer remained ex parte and did not file any written statement contesting the claim of the worker. The claimant had made a claim for a total sum of Rs. 1,83,000/-. The Workmen's Compensation Commissioner framed the following issues :
(1) Whether the applicant is a workman under Section 2(1)(n) of the Workmen's Compensation Act, 1923 ?
(2) If so, the said accident was caused while on service or on discharging the work ?
(3) If so, whether he is entitled to receive compensation either on the request made in the application or on what part ?
(4) Whether the applicant is entitled to receive interest and fine on the compensation amount under Section 4A ?
3. The Workmen's Compensation Commissioner, after perusal of the evidence held that the claimant was the cleaner of the vehicle and he was a workman under Section 2(1)(n) of the Act. It further held that while the claimant-workman was in service and was discharging the duties in course of his employment, the accident did take place at the time and place mentioned, on 22.5.1991. The Workmen's Compensation Commissioner further held that injuries caused to the workman were of permanent nature and he has lost 85% of earning capacity. The Workmen's Compensation Commissioner further took the view, the basic salary of the workman may be taken to be Rs. 400/- as there is no evidence to substantiate the claim of the claimant that his salary was Rs. 1,500/- and Rs. 500/- batta. It took the view that the basic salary of the workmen was Rs. 400/- p.m. and he was getting Rs. 100/- as batta and so his total salary was Rs. 500/-. It also found that the workman was aged 20 years at the time of accident. So the Commissioner calculated compensation as Salary Related
------- * ---------- = Loss of earning capacity-Compensation 50% Multiples and held that the workman i.e., applicant/appellant has been entitled to receive the compensation to the tune of Rs. 47,600/-. It further held that the claimant-workman has been entitled to receive interest at the rate of 10%, as fine of the total compensation and interest at 6% p.a. on the total compensation. It further directed that out of the total sum of compensation amount realised Rs. 20,000/- will be kept in the name of the workman under the N.S.C and the remaining amount to be paid through cheques. The Workman claimant having felt dis-satisfied with the amount of compensation awarded has come up in appeal.
4. No cross appeal or cross objections has been filed either on behalf of the employer or on behalf of the employer or on behalf of the Insurance Company challenging the decision of the findings recorded against the respondent. The point on which contention has been made by the Counsels relate to the quantum of compensation.
5. The learned Counsel for the appellant, Sri. D. S. Hosmath, contended that the Commissioner, committed a substantial error of law in completely ignoring the evidence of the claimant which has been given on oath and wherein the claimant has stated that he was paid a sum of Rs. 1,500/- p.m. and Rs. 500/- as batta. The learned Counsel contended that the statement on oath has not been controverted or challenged by cross-examination nor has been proved to be false. The learned Counsel contended that there is no evidence to the contrary that he was getting a sum lesser that what is stated. The learned Counsel submitted that in cross-examination, no amount of salary was suggested to him as the salary paid and as batta payment on behalf of the respondents. The learned Counsel further contended that the Insurance Company could have summoned the documents from the employer or could have produced them.
It has not done so and as such the learned Commissioner committed error of law in ignoring uncontroverted testimony of the claimant on this aspect of the matter that his salary was Rs. 1,500/- and he was also getting Rs. 500/- as batta, thus he was getting Rs. 5,000/- in total as his wages or salary p.m. as a cleaner. The learned Counsel submitted that it is an error of law of substantial nature on the part of the commissioner to have ignored that evidence without any rhyme or reason. The documents could be only with the employer and the insurance Company or the employer could have produced it and therefore the suggestion of the Commissioner that the salary was only Rs. 400/- p.m. and Rs. 100/- as batta p.m. is vitiated by error of law as it is based on surmises and not on evidence. Instead it has been arrived at by ignoring the material relating to uncontroverted testimony of the claimant. The learned Counsel for the appellant contended that the Commissioner should have acted solely on the testimony of the claimant.
6. The Counsel for the respondent, hotly contested the contentions made by the learned Counsel for the appellant. The learned Counsel for the respondent submitted that suggestions were put to applicant that he was not getting Rs. 1,500/- and Rs. 500/- as batta. But he has denied and he has placed the statement to the effect that the claimant stated that he had no documents which may show his salary. The learned Counsel submitted therefore, the Commissioner was justified in assuming the monthly salary at Rs. 400/- p.m. plus Rs. 100/- as batta. The learned Counsel for the respondent contended that the minimum wages for the cleaner has been Rs. 17/- per day during those days and therefore the figure of Rs. 400/- was justified and award and compensation awarded was justified. He contended that the person who comes with the claim, has to prove his case.
7. I have applied my mind to the contentions made by the learned Counsels for the parties. As mentioned earlier, the sole question is whether the compensation has been determined in accordance with law and properly. The formula for determination is Salary
------- * Related Multiples i.e. 50% the loss of earning capacity and the amount of compensation. The question so far as the salary concerned, the claimant has made his statement on oath, wherein he has deposed that his monthly salary was Rs. 1,500/- and in addition thereto he was getting Rs. 500/- as batta. No evidence to the contrary has been produced by the respondent either by the employer or by the Insurance Company. The Insurance Company has not made effort to summon the employer in witness box or summon the document relating to the salary paid to the claimant. That so far as the question of burden of proof is concerned, burden of proof looses its importance once the parties adduce evidence howsoever meager it may be. So once the claimant appeared in witness box and made deposition on oath, his statement on oath is also an evidence which may be reliable or may not be reliable. Reliability is a different question, it may be a question of appreciation of evidence. As soon as the oral evidence has been adduced by the claimant, may be his ownself as witness, it was the duty of the employer as well as the Insurance Company to have stated firstly in the written statement what was the actual salary of the cleaner according to them and then to have produced the evidence of the employer as well as the documents whatsoever are with the employer. The duty of the Company was to summon and to produce the employer if it wanted to controvert the evidence produced by the claimant in the form of oral evidence. No such effort has been made by the Insurance Company. Nothing has been brought in cross-examination to show that the testimony of the claimant was false. Merely because no documentary evidence has been produced by the claimant, it does not furnish a good ground to reject that evidence, particularly when there is no suggestion to the contrary that the monthly salary of the claimant was such and such amount atleast or lesser than what has been stated in the claimant's evidence. in this view of the matter, in my opinion, the learned Commissioner committed substantial error of law within the framework of Section 30 of the Act in ignoring the evidence of the claimant which proves that the salary of the claimant was Rs. 1,500/- + 500/- i.e., Rs. 2,000/-. There is another circumstance that goes against the respondents and in favour of the claimant. Employer is none else, but the insured and the Insurance Company has given a policy in his favour. It could have summoned and produced insured with records to show that salary was less than Rs. 2,000/- or employer should have himself come in witness box and filed a statement that the salary was less than what is claimed by the workman. The employer has not filed any written statement. The employer has not appeared in witness box and the Insurance Company has not summoned it. Failure of a party to appear in witness box particularly when it is its duty to rebut, then it raises an adverse presumption against the party abstaining from the witness box. In this view of the matter, in my opinion, the Workmen's Compensation Commissioner, when recorded the finding to the effect that the salary of the workman was Rs. 400/- plus Rs. 100/-, this finding is based on no evidence, but on sheer conjecture and surmises. A finding of fact which has been arrived at, ignoring the material evidence, simply on the ground of surmises and conjecture is a finding vitiated by substantial error of law - Dilbegrei Punjabi v. Shared Chendre, , Abdul Shakur v. Kolleshwar Pel, , Jagdish Singh v. Nathu Singh, .
8. It is hereby held that the statement of claimant on oath sufficiently establishes in above circumstances that his salary as stated has been Rs. 1,500/- plus 500 p.m. Under Workmen's Compensation Act, it is provided if the salary of a workman is more than Rs. 1,000/-, then, for the purpose of Workmen's Compensation Act, it is provided if the salary of a workman is more than Rs. 1,000/- then for the purpose of Workmen's Compensation Act, it is to be taken at Rs. 1,000/-. Here in this case the salary of the claimant leaving batta is Rs. 1,500/-. So it is to be taken as Rs. 1,000/- for the purpose of workmen's compensation. If we apply the multiplier and calculate, it comes to as under :-
1000 85------- = 500 * 224 * ----- = Rs. 95,200/-2 100
9. Thus considered, in my opinion, the claimant is entitled to the tune of Rs. 95,000/- in round figure and awarded compensation to a sum of Rs. 95,000/-. Rest of the part of the order of the Workmen's Compensation Commissioner with respect to the interest and fine is maintained. The direction which is contained in para 9 of the order is modified and it is hereby directed that a sum of Rs. 50,000/- should be kept in the name of workman invested in the N.S.C. The remaining amount of compensation may be paid to the claimant in the form of a cheque. It is clarified that whatsoever amount already been invested in the N.S.C. or whatever amount has already been paid, it shall proportionately be adjusted in the matter of investment and payment.
10. The appeal is thus finally disposed.