Bangalore District Court
Has Further Contended As Follows; vs No.1 Has Examined Its Supervisor As ... on 12 August, 2016
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND
ADDL. MACT., BANGALORE, (SCCH-7)
Dated this, the 12th day of August, 2016.
PRESENT : SMT.INDIRA MAILSWAMY CHETTIYAR,
B.Com.,LL.B.(Spl.),L.L.M.,
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.
E.C.A.No.279/2014
Sri. D. Manjuantha, ..... PETITIONER
S/o. C. Devendran,
Aged about 26 years,
R/a No.9/21, 3rd Floor,
5th Cross, Bendre Nagar,
Kaderanahalli,
Banashankari IIIrd Stage,
Bangalore-070.
(By Sri. Ramesha. M.N., Adv.,)
V/s
1. SPM INDIA LTD, ..... RESPONDENTS
No.132/52, G.D. House,
Bendre Nagar,
Subhashchandra Bose Road,
Subramanayapura Main Road,
B.S.K. 2nd Stage (Post),
Bangalore-070.
Represented by its Director.
2. The Regional Director,
ESI Code No.53-11431-67,
ESI Corporation,
SCCH-7 2 E.C.A.No.279/2015
No.10, Binny Fields,
Binnypet,
Bangalore-023.
3. The Branch Manager,
United India Insurance Company Ltd.,
Policy No.604201/41/10/8600000002,
For the period 05/06/2010 to
04/06/2011,
Branch Office No.2,
1st Floor, Opp. Indian Overseas Bank,
1st Main,
Gandhinagar,
Bangalore-09.
(R-1 By Sri. K.R. Anand, Adv.,)
(R-2 By Sri. K.Krishnappa, Adv.,)
(R-3 Exparte)
JUDGMENT
It is pertinent to note here that, initially, the Petitioner has filed the present petition only as against the Respondent No.1. Later, during the course of proceedings, as per the Order dated 09.03.2015 passed on application, the Respondents No.2 and 3 are impleaded as parties to the present petition. Hence, the present petition is pending for consideration as against the Respondents No.1 to 3.
2. The Petitioner has filed the present petition as against the Respondents No.1 to 3 under Section 10 of the Workmen's Compensation Act, 1923, praying to grant compensation of Rupees 9,80,000/- towards the damages due to the accident occurred during the working in the Respondent Company.
SCCH-7 3 E.C.A.No.279/20153. The brief averments of the Petitioner's case are as follows;
a) He is the workman in the Respondent Company. He has appointed to the post of Mechanical Engineer, firstly, he has appointed as Trainee Engineer-Service for 6 months. The Appointment Letter issued by the Respondent Company to him on 28.05.2008 at a basic salary of Rupees 8,500/-. Thereafter, he continued as regular employee. After completion of 6 months period, he was working as Engineer and earning Rupees 10,000/- salary from the Respondent Company. His work was installation of new machines and he was the Unit II Employee of the Respondent Company and his working timings is from morning 9 to 1 and 1.30 to 5.30 p.m., regularly all the employees are doing the overtime work i.e., from 5.30 p.m., to 7.00p.m., and the Respondent Company was paying salary to him through Bank Account directly transferred to his Account on every month.
b) During the working hours, when he was installing the Hydraulic Machine along with other helpers on 23.04.2011 at about 5.30 p.m., after installation of the machine, while testing the said machine, suddenly hit the right arm of him, due to the same, he sustained grievous injury.
c) Immediately, the staff and the Director have shifted him to Vivekananda Hospital for treatment and he has taken 4 days inpatient treatment to right arm. His right arm was dislocated and the Doctor was done the operation and jointed the SCCH-7 4 E.C.A.No.279/2015 arm by fixing the plate and nuts. For the same, he has spent Rupees 2,50,000/- for medical expenditure and the Doctor advised to take further treatment and also he requires future operation to his right hand, for the future operation, he requires Rupees 50,000/- for removal of the plate and nets.
d) He was discharged on 27.04.2011 and the Respondent Company has not spent any single rupee for treatment. The Respondent Company has only taken him to the Hospital and admitted there. But, later on, the Respondent Company has not taken care of him. After discharge, the Doctor was advised him to take further treatment as an outpatient.
e) He has approached the Respondent Company and requested to pay the compensation and damages and further asked for the other benefits, but, the Respondent not responded properly.
f) Though he was working as mechanical engineer, the Respondent Company has not provided any ESI and PF and the Company has not paying the same to the concerned Department even after 2 years of the employment. The Respondent Company at the time of incident, promised that, they will pay all the medical bills and further promised that, they will pay the salary till recovery. But, the Company has escaped from its burden. The Company has only taken him to Hospital and admitted there and thereafter, not taken any interest and care and after discharge also, he has several times approached and requested to pay SCCH-7 5 E.C.A.No.279/2015 benefits and other service charges, but, they did not response properly.
g) Due to the assurance of the Respondent Company that, they will provide all the benefits and future security to the life, he has not taken any steps as against the Respondent. But, now, the Company has not complied their assurance. Further, he has seriously injured and he was not in a position to approach the Authorities immediately, since he is only the bread earner of the family and they are mother and father. After recovery from the injury, he has approached the Respondent and requested to provide the benefits and compensation as required under law, when he was approached to the Respondent for several occasions for compensation and providing of alternative job, but, they have giving evasive reply to him only to prolonging.
h) He has spent more than Rupees 2,50,000/- for his medical treatment and further Rupees 50,000/- requires for future operation.
i) He is not in a condition to work as earlier since he suffered grievous injury on the right hand and therefore, the Respondent has to pay future loss of Rupees 6,00,000/- and he has not worked from the date of accident till today and the Respondent has not paid any salary during that period, hence, the Respondent requires to pay loss of salary of Rupees 80,000/-. Therefore, he is claiming compensation in all Rupees 9,80,000/-.
SCCH-7 6 E.C.A.No.279/2015j) The incident happened during the working hours in Respondent Company, therefore, the Respondent is liable to pay a sum of Rupees 9,80,000/- towards compensation to him.
k) He has not filed any case as against the same cause of action. Hence, this petition.
4. In response to the notice, the Respondent No.1 has appeared before this Tribunal through its Learned Counsel and has filed the written statement and additional written statement.
5. In response to the notice, the Respondent No.2 has appeared before this Tribunal through his Learned Counsel and has filed the written statement.
6. Though the notice was duly served on the Respondent No.3, he was remained absent and hence, he is placed as exparte on 29.04.2015.
7. The Respondent No.1 inter-alia denying the case of the Petitioner, has further contended as follows;
a) It is a Private Limited Company registered under Companies Act, in the field of assembling of machines.
b) The present case is wholly false, frivolous and vexatious and the same is not maintainable in law and facts. The present petition is filed with the malafide intention of wrongful gains to him and to cause wrongful loss to it.
SCCH-7 7 E.C.A.No.279/2015c) The Petitioner was appointed as a Trainee vide Letter dated 28.05.2008 and he continued in the same position with it.
d) On 25.04.2011 at about 6.30 p.m., the Petitioner removed the side guard, which was bolted and he entered the Hydraulic Machine from back side. While the machine was in the running condition, he had put his right hand inside the machine to remove some tools, hydraulic object hit at his right arm and his right arm got fractured. He was not only fully aware of the consequences of his intended act, but, had been warned by the prominent display of the order that, a running machine should not be meddled with, inspite of it, he choose to put his right hand inside the machine to remove the tools while it was running, which caused the accident. It was not only the result of mere negligence and due to mistaken mode of doing the act on account of his wrong decision. Hence, the accident was directly attributable to his said reckless act disregard of the consequences.
e) The Petitioner was immediately taken to Vivekananda Hospital, Bilakahalli, Bannerghatta Main Road, Bengaluru for treatment by its staff members. There, he was admitted on 24.04.2011 at 7.00 p.m. and he was discharged on 27.04.2011 at 11.00 a.m., after necessary treatment. It has met all the expenses of his treatment, such as, bed charges including consultations and nursing care, investigations, tests, surgery and food, etc., A total amount of Rupees 46,843/- was paid by its Company towards his entire treatment including medicines. Rupees 36,360/- was paid by it to the said Hospital vide Bill SCCH-7 8 E.C.A.No.279/2015 72/27.04.2011, apart from that, it spent Rupees 10,483/- for medicines.
f) The Petitioner was discharges on 27.04.2011. The entire amount for treatment and medicines were met by it and specifically paid to the Hospital. After discharge from the Hospital, it has sent 2 RPAD Letters on 21.07.2012 calling upon him to rejoin the employment of it with the same terms and conditions. He never bothered to report to work and thereby, he had voluntarily given up the employment. Neither he approached it in response to the said 2 RPAD Letters nor any further communication from the Petitioner received by it, until he has chosen to file this petition.
g) It is covered under the provisions of the ESI Act, 1948 since May 1994 and the allotment Code by the ESI Coporation is No.53-11431/67 dated 03.08.1993. It has paid his treatment bill including medicines amounting to Rupees 46,843/- and he never approached it after 27.04.2011, the date of discharge from the Hospital, even after call letters were sent to his address by RPAD.
h) The Petitioner has voluntarily given up the re- employment offered to him vide RPAD Letter dated 21.07.2012 by it. It has no knowledge about his family and his source of income, etc.,
i) The Petitioner neither reported the work nor responded to the call letters of it dated 21.07.2012. Hence, his claim in this SCCH-7 9 E.C.A.No.279/2015 petition for Rupees 6,00,000/- for future loss, Rupees 80,000/- for loss of salary, Rupees 2,50,000/- for medical expenses and Rupees 50,000/- for further medical expenses, are without any basis. The total claim of Rupees 9,80,000/- is a frivolous and false claim.
j) There is no such disability to work as a result of accidental injury as claimed by the Petitioner and there is no diminution of wage earning capacity and inability to get work on account of his accidental injury.
k) Without prejudice to the above contentions, its Factory is covered under the provisions of the ESI Act, 1948 since May 1994 and the ESIC is liable to pay compensation to the Petitioner for the employment injury suffered on account of his accident occurred in view of the statutory provisions. Hon'ble Supreme Court in the case of M/s. Bharagath Engineering Versus R. Ranganayaki and another, reported in 2003 LLR 227, it is held that, "a person, who is an employee of the employer covered by ESI Act, 1948, is an "insured person" within the meaning of Section 2(14) of ESIC Act, the date of registration and payment of contribution is really not very material."
l) It has a valid Workmen's Compensation Policy No.604201/41/10/8600000002, valid up to 04.06.2011 with National Insurance Company Ltd., Gandhinagar, Bangalore- 560009 and the said policy was also periodically renewed after SCCH-7 10 E.C.A.No.279/2015 04.06.2011. As such, its company would not be liable to pay any compensation on either or both the counts.
m) At any rate, its company is not liable to pay any compensation to the Petitioner and further, the claim as against its Company is not maintainable under the Employee's Compensation Act, 1923, as, the establishment of it is covered under the provisions of the ESI Act, 1948.
n) As such, on 21.01.2013, it filed an application under Section 10 of the Employee's compensation Act, 1923 read with Order 1 Rule 10(2) of the Code of Civil Procedure to implead the Regional Director, ESI Corporation, Binnypet, Bangalore-560023 and the Branch Manager, National Insurance Company Ltd., Gandhinagar, Bengaluru-560009 as proposed Respondents No. 2 and 3, respectively as they are the necessary parties. Hence, prayed to dismiss the petition with exemplary costs.
8. The Respondent No.1 has also filed Additional Written Statement and has further contended as follows;
a) The Petitioner was appointed as Trainee Engineer in Unit 2 of its Company and he was discharging the duties of workman, met with an accident and got fractured to his right arm on 23.04.2011 at 5.30 p.m. and due to his negligence act at the factory premises. He has admitted to the Vivekananda Hospital Bannerghatta Main Road, Bangalore, by it on 23.04.2011 at 7.00 p.m. Rupees 36,360/- was paid to the Hospital by it towards his SCCH-7 11 E.C.A.No.279/2015 medical treatment, etc., The Petitioner remained absent, as such, on 21.07.2012, a letter was sent to him to report for his duty by it, for which, there was no response. During May, 2012, he had filed claim for compensation of Rupees 9,80,000/- under Employees Compensation Act without any basis and without materials, such as, legal notice, Medical Bills, complaint with jurisdictional Police/Authority etc., to substantiate his claim, for which, he is not entitled. His application is not maintainable under Employees Act as Section 53 of ESI Act bars the same because it relied on Hon'ble Supreme Court decision reported in 2003 LLR 227- M/s. Bharagath Engineering Vs. R. Ranganayaki and another, which is not over ruled as on today.
b) A Workman Compensation policy with National Insurance Company taken by it was in force on the date of accident, i.e., 23.04.2011 covering the Petitioner workman working in Unit-2 of it. As such, the National Insurance Company, the 3rd Respondent, if any, to be awarded to the Petitioner by this Hon'ble Court. Hence, prayed to dismiss the petition as not maintainable and illegal.
9. The Respondent No.2 inter-alia denying the entire case of the Petitioner, has further contended as follows;
a) The petition is liable to be dismissed in limine as he is governed by the provisions of the ESI Act, 1948, but, no under WCA 1923.
SCCH-7 12 E.C.A.No.279/2015b) Admittedly, the Petitioner is not an insured person as per the provisions of the ESI Act and hence, not entitled for any of the benefits under the Provisions of the ESI Act, 1948.
c) Admittedly, the Petitioner has not approached ESI Authorities for claiming disablement benefit under the ESI Act.
d) The Petitioner has not filed the petition with clean hands, as, at one place, he has stated that, the injury is caused to his right hand and at another place, he has stated that, the injury is caused to his left hand.
e) The ESI Act 1948, is a Socio Economic Legislation for the benefit of the employees of the Organization and Factories covered under the ESI Act, 1948, who are the beneficiaries termed as insured person. In this case, the Petitioner is not an insured person under ESI Act, 1948, as stated by the Respondent No.1 and also borne out by our records, i.e., return of contribution for the period from 01.04.2010 to 30.09.2010. Even the Respondent No.1 has not submitted Accident report of the Petitioner to him as required under the provisions of the ESI Act, 1948.
f) He is not liable to pay any benefits to the Petitioner under the ESI Act 1948.
g) The Petitioner is barred from claiming benefits from him under section 75(3) of the ESI Act, 1948 before this Hon'ble Court.
SCCH-7 13 E.C.A.No.279/2015h) The Petitioner has not invoked any provisions of the ESI Act, 1948, to justify his claim from him. Hence, prayed to dismiss the claim petition an discharge him.
10. Based on the above said pleadings, I have framed the following Issues;
ISSUES
1. Whether the Petitioner proves that, during the course of employment under the Respondent, i.e., working hours, when he was installing the Hydraulic Machine along with other helpers on 24.04.2011 at about 5.30 p.m., and after installation of the machine, while testing the said machine suddenly hit his right arm and he was sustained grievous injuries?
2. Whether the Petitioner is entitled for compensation and damages? If so, how much and from whom?
3. What order?
11. In order to prove his case, the Petitioner himself has been examined as P.W.1 and has also examined one witness as P.W.2 by filing the affidavits as their examination-in-chief and has placed reliance upon Ex.P.1 to Ex.P.12. On the other hand, the Respondent No.1 has examined its Supervisor as R.W.1 by filing an affidavit as his examination-in-chief and has placed reliance SCCH-7 14 E.C.A.No.279/2015 upon Ex.R.1 to Ex.R.8. On the other hand, the Respondent No.2 has examined its Social Security Officer as R.W.2 by filing an affidavit as his examination-in-chief and has placed reliance upon Ex.R.9.
12. Heard the arguments. The Learned Counsel appearing for the Respondent No.1 has filed the written arguments.
13. In support of the submission, the Learned Counsel appearing for the Petitioner, Sri. Ramesha.M.N., has placed reliance upon the decisions reported in, 2008 ACJ 664 (Executive Engineering and Another V/s. Ambika Sharma), wherein, it is observed that, Two contentions have been urged before medical expenses by learned Deputy Government Advocate. His first contention is that, the injured begin an Assistant Engineer in the workshop at Mahi Project cannot be deemed to be workman and his second contention is that, compensation awarded to him is excessive looking to the injury received by him. In my opinion, there is no force in either of the contentions. According to the amended definition of workman the injured could certainly be deemed to be a workman inasmuch as he was employed in the workshop of the Mahi Project as an Assistant Engineer, the learned Commissioner has held him to be so and I do not see any reason to take a different view.
SCCH-7 15 E.C.A.No.279/20159. In the present case, Ambika sharma was engaged in repairing the electric lines when accident took place. It is not the case of the Respondents that, the accident has not taken place during the course of employment of applicant Ambika Shara. The nomenclature of the job does not matter, what matters is whether person working on the job comes within the definition of workman? In my opinion, Ambika Sharma, applicant, was workman under Respondents when he suffered burn injuries in the accident. Thus, the substantial question of law No.1 is decided in favour of the applicant Ambika Sharma and against Respondents.
14. In support of the submission, the Learned Counsel appearing for the Respondent No.1 Sri.K.R. Anand has placed reliance upon the decisions reported in,
i) 2003 LLR 227 Supreme Court of India (M/s.
Bharagath Engineering V/s. R. Ranganayaki and Another), wherein, it is observed that, A person who is an employee of the employer covered by ESI Act, 1948 is an "insured person" within the meaning of section 2(141) of ESIC Act, the date of registration and payment of contribution is really not very material. Hence, the ESIC will be liable to pay compensation to the dependents of the deceased dying because of injury arising out of and during the course of employment.
SCCH-7 16 E.C.A.No.279/20155. In support of the appeal, learned Counsel appearing for the appellant submitted that, the High Courts approach was erroneous because the language of section 2(14) of the Act makes it clear that, even before an employee is registered for the purpose of insurance with the Corporation, the obligation of the employer to pay contribution is not wiped out. Reference was made to various provisions, more particularly to Rule 58(2)(b) of the Employees State Insurance (General) Rules, 1950 (in short, the Rules) and Regulation (4) of the Employees' State Insurance (General) Regulations, 1950 (in short, 'the Regulation). Rule 58(2)(b) deals with a situation where 'employment injuries are sustained before the commencement of the first benefit period. Merely because the contribution had not been paid by the time the employee died, that, does not affect the liability of the Corporation. There is statutory obligation to pay the contribution in respect of every employee once the factory or establishment is covered by the Act and the obligation to pay the contribution commences from the date of the application of the Act to such factory or establishment. With reference to section 38 of the Act, it was submitted that, there was a statutory requirement for insurance in relation to all employees. The scheme of the Act is conceptually different from other contracts of insurance and the relationship of the contractor and the contracted is not that, of the employee and the Corporation, but, that of the employer and the Corporation.
12. When considered in the background of statutory provisions, noted above, the payment or non-payment of SCCH-7 17 E.C.A.No.279/2015 contributions and action or non-action prior to or subsequent to the date of accident is really inconsequential. The deceased employee was clearly an 'insured person', as defined in the Act. As the deceased employee has suffered an employment injury as defined under section 2(8) of the Act and there is no dispute that, he was in employment of the employer, by operation of section 53 of the Act, proceedings under the Compensation Act were excluded statutorily. The High Court was not justified in holding otherwise. We find that, the Corporation has filed an affidavit indicating that, the benefits under the Act shall be extended to the persons entitled under the Act. The benefits shall be worked out by the Corporation and shall be extended to the eligible persons.
ii) 1980 II LLJ (Madras) (Engineering Construction Corporation, Ltd., Madras V/s. Additional Labour Court, Madras and Others), wherein, it is observed that, Industrial Disputes Act, 1947-S. 2(s).
S. 25 (f)-Workman-Who is-Person appointed as foreman (carpentry)-Whether workman-
Nature of work and not nomenclature that, is to be considered in deciding whether a person is a workman or not -Retrenchment-
What is-Post coming to an end by efflux of time-Whether retrenchment-Held, in the facts and circumstances of the case, it was only retrenchment.
iii) 1998 ACJ 22 High Court of Orissa At Cuttack (C. David V/s. Govind Chandra Mishra and Another), wherein, it is observed that, SCCH-7 18 E.C.A.No.279/2015 Workmen's Compensation Act, 1923, section 4 (1) (c) (ii), read with Explanation II- Compensation-Assessment of loss of earning capacity-Driver sustained multiple fracture of right ulna and right forearm and grievous and simple injuries on his person in an accident while driving car during the course of his employment-Doctor opined that, the workman suffered permanent partial disability to the extent of 60 per cent-
Commissioner computed the amount of compensation accordingly-Appeal by the workman that, compensation ought to have been fixed at total disablement-Workman sustained non-Schedule injuries and there was no positive evidence through the doctor as envisaged in section 4 (1) (C) (ii) read with Explanation II to bring the workman's case to one of loss of 100 percent earning capacity-Whether the workman is entitled to compensation on the basis of 100 per cent loss of earning capacity-Held: no.
Workmen's Compensation Act, 1923, Section 4 (1) (c) (ii) read with Explanation II- Compensation-Assessment of loss of earning capacity-Whether while assessing compensation, the court has to examine the loss of earning capacity of the injured workman with reference to every employment and not merely in the particular employment in which he was engaged at the time of accident-Held: yes.
iv) ILR 1995 KAR 1671 (Oriental Insurance Company Ltd. V/s. Tajuddin Abdul Rahim Karanche), wherein, it is observed that, SCCH-7 19 E.C.A.No.279/2015 WORKMEN'S COMPENSATION ACT, 1923 (Central Act No.8 evolved-Absolute discretion of Commissioner curtailed to the extent of gauging loss of earning capacity on basis of assessment by Medical Expert - Not mere Medical Certificate, but, evidence of Medical Practitioner necessary being crucial & essential, to have clear & reliable evidence to fix up quantum of compensation -
Commissioner not precluded from making departure upon extremely cogent & genuine grounds & also seek better evidence if dissatisfied with evidence of one Medical Expert.
HELD:
The principles that, emerge on the basis of a consideration of law and the effect of the amendment of 1984 can briefly be summarized in the position that, although undoubtedly, the accent is heavily on the medical evidence, this evidence is not sacrosanct and the Commissioner is not to be relegated as being required to mechanically follow the opinion of the Doctor. The correct way to interpret the Section would be that, the absolute discretion of the Commissioner is, now curtailed to a very large extent insofar as he will have to garage the loss of earning capacity strictly on the basis of assessment done by the Medical Expert. For this purpose, the old practice of merely producing a Medical Certificate with a rough estimate of disability o longer holds good. It will be necessary to lead medical evidence through the medium of a person who can be regarded as a qualified Medical Practitioner and that, this Doctor will have to be specifically informed about the job functions SCCH-7 20 E.C.A.No.279/2015 of the applicant and the bearing that, the injury will have on these functions. Equally necessary, the Doctor will have to specifically depose about the short term and long term effects of the injury but, more importantly, as to how it will affect the present job and the potential earning capacity in any other or alternate areas of employment. This evidence is crucial and is essential. Regardless of whether the parties on their own accord follow these principles, the Commissioner shall take into account the fact that, the law requires this procedure to be adopted and shall ensure that, it is done. Once this formula is adopted, the Court will have before it very clear and reliable evidence and it is on this basis that, the quantum of compensation will have to be fixed. If there are extremely cogent and genuine grounds on which a departure has to be made from the evidence adduced by the Doctor, such as in a situation where the opinions differ when more than the Doctor is examined or where the applicant or the employer produces far better material, the Commissioner will not be precluded from making some departure from the medical evidence. The amendment of 1984 creates a situation whereby the Commissioner is required to go by this evidence or keep close to it and the Commissioner is therefore not permitted to make any radical departure from that, evidence. In a given situation, if the Commissioner is dissatisfied with evidence of one Medical Expert, it will certainly be open to seek further and better evidence.
v) (2011) 1 Supreme Court Cases 343 (Rajkumar V/s.
Ajay Kumar and Another), wherein, it is observed that, SCCH-7 21 E.C.A.No.279/2015 G. Motor Vehicles Act, 1988- Ss. 163- A, 166, 168 and 169 - Permanent disability -
Assessment/Evaluation of extent of -
Medical evidence - Necessity and importance of understanding of by Tribunal for assessing physical and functional disability, emphasized - Expert evidence - Reliance upon - Factors to be considered - Evidence Act, 1872 - S. 45 - Tort Law - Workmen's Compensation Act, 1923, Ss. 3, 4 and Schs.
I and IV Held:
While dealing with personal injury cases, the Tribunal should preferably equips itself with a medical dictionary and a handbook for evaluation of permanent physical impairment for understanding the medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view the First Schedule to the Workmen's Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen.
If a doctor gives evidence should the percentage of permanent disability, the Tribunal has to seek clarifications as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. Mere production of a disability certificate or discharge certificate will not be proof of the extent of disability stated therein unless the doctor who treated the claimant or who medically examined and assessed the extent of disability of the claimant, is tendered for cross-examination. If the Tribunal is not satisfied with the SCCH-7 22 E.C.A.No.279/2015 medical evidence produced by the claimant, it can constitute a Medical Board and refer the claimant to such Medical Board for assessment of the disability.
25. The Tribunal has proceeded on the basis that, the permanent disability of the injured claimant was 45% and the loss of his future earning capacity was also 45%. The Tribunal overlooked the fact that, the disability certificate referred to 45% disability with reference to the left lower limb and not in regard to the entire body. The said extent of permanent disability of the limb could not be considered to be the functional disability of the body nor could it be assumed to result in a corresponding extent of loss of earning capacity, as the disability would not have prevented him from carrying on his avocation as a cheese vendor, though it might impede in his smooth functioning. Normally, the absence of clear and sufficient evidence would have necessitated remand of the case for further evidence on this aspect. However, instead of remanding the matter for a finding on this issue, at this distance of time after nearly two decades, on the facts and circumstance, to do complete justice, we propose to assess the permanent functional disability of the body as 25% and the loss of future earning capacity as 20%.
vi) (2002) III LLJ 97 High Court of Calcutta (New India Assurance Company Limited V/s. Bharat Yadav alias B.P. Yadav and Another), wherein, it is observed that, Workmen's Compensation Act, 1923- Sec. 30 (1) 2(1) and 4(1) - Injury sustained SCCH-7 23 E.C.A.No.279/2015 by workman Loss of earning capacity -
payment of compensation - Commissioner statutorily bound to follow prescribed procedure - Any failure will mean commissioner had committed illegality.
HELD: Where the statute commands the commissioner to exercise his powers in a particular manner and subject to certain conditions statutorily laid, the commissioner is statutorily bound to follow the same and if there is any departure from the prescribed procedure or violation of conditions, then it is to be construed that, the Commissioner had committed an illegality. The point raised in this regard in this appeal is not a question of fact.
It is incumbent on the commissioner to assess actual loss of earning capacity on the basis of evidence, as required under Section 2(1) and Section 4(1) of the Act. Since in this case the qualified medical practitioner did not assess the actual loss of earning capacity of the claimant, the Commissioner failed to arrive at a just conclusion. The assessment of compensation being opposed to law is liable to be set aside.
vii) 2002-I-LLJ High Court of Kerala (Oriental Insurance Company V/s. Mohammed), wherein, it is observed that, Workmen's Compensation Act, 1923- Sec. 4-A (3) (3-A) (as amended in 1995) -
Rate of interest on compensation payable is as prescribed in statute on date of payment, unlike compensation which is to be calculated as per statute on date of accident.
SCCH-7 24 E.C.A.No.279/2015HELD: In one of these two appeals a workman who lost his thumb, index and middle fingers in an accident in the course of his employment sought enhancement of compensation on three counts. The first was that, the compensation should have been calculated at rates applicable on date of award and not as on date of accident, as was done by the Commissioner for Workmen's Compensation in his impugned award. The High Court did not agree. It observed compensation had to be calculated only as per rules existing on date of accident.
Secondly the workman contended that, the interest payable was as per rates prescribed in Statute existing on date of payment and as per the 1995 amended provision Sec. 4-A(3) and (3-A) of the Workmen's Compensation Act, 1923 the rate of interest was 12%, 6 % interest in the award was not therefore proper. The High Court agreed with this contention observing that, unlike the compensation amount, interest had to be calculated as per statute existing on date of payment.
15. My answers to the above said Issues are as follows;
Issue No.1 : In the Affirmative,
Issue No.2 : Partly in the Affirmative.
The Petitioner is
entitled for compensation
of Rupees 1,95,920/- with
interest at the rate of 12%
p.a. from 23.05.2011 till
the date of payment, from
SCCH-7 25 E.C.A.No.279/2015
the Respondent No.3.
Issue No.3 : As per the final Order,
for the following;
REASONS
16. ISSUE NO.1 :- The P.W.1, who is the Petitioner has stated in his examination-in-chief that, he was workman in the Respondent No.1 Company and he was appointed to the post of Mechanical Engineer, firstly, he has appointed as Trainee Engineer-Service for 6 months and the Appointment Letter issued by the Respondent No.1 Company to him on 28.05.2008 at a basic salary of Rupees 8,500/- and thereafter, he continued as regular employee. He has further stated that, after completion of 6 months period, he was working as Engineer and earning Rupees 10,000/- salary from the Respondent No.1 Company and his work was installation of new machines and he was the Unit II employee of the Respondent No.1 Company and his working timings is from morning 9 to 1 and 1.30 to 5.30 p.m., and regularly, all the employees are doing the overtime work, i.e., from 5.30 p.m., to 7.00 p.m. He has further stated that, the Respondent No.1 Company was paying salary to him through Bank Account directly transferred to his Account on every month in S/B Account No.30369313749 at State Bank of India, SME SSI Branch. He has further stated that, during the working hours, when he was installing the hydraulic machine along with other helpers on 23.04.2011 at about 5.30 p.m., and after installation of the machine, while testing the said machine, suddenly hit his right SCCH-7 26 E.C.A.No.279/2015 arm and due to the same, he sustained grievous injury and immediately, the staff and the director were shifted him to Vivekananda Hospital for treatment and he had taken 4 days inpatient treatment to the right arm. He has further stated that, his right arm was dislocated and the Doctor was done the operation and jointed the arm by fixing the plate and nuts and he was discharged on 27.04.2011. He has further stated that, on 03.01.2013, he was admitted to Vydehi Institute of Medical Hospital for swelling of his right arm, due to the same on 04.01.2013, operation was done and removed the plates and nets in the right arm and re-fix the new plates and nets and taken inpatient treatment from 03.01.2013 to 10.01.2013.
17. No doubt, the P.W.1 has stated in his cross- examination that, the Respondent No.1 has not given confirmation order in respect of his service and except the said Bank statements, he has not produced any separate documents to show that, the Respondent No.1 has paid overpaid wages to him and there is a display in the said machine itself, when the machine is running condition it is not middle with. He has further stated that, he has not lodged a complaint before the Police about the said alleged accident and after completion of training period, the Respondent No.1 was not issued any document for permanent employee. He has further stated that, he has not submitting ESI declaration form at the time of his appointment and no insurance number is allotted to him to show that, he has covered under ESI scheme and no Identity Card issued by ESI to him and ESI not deducted in his salary and he has not visited ESI Branch Office SCCH-7 27 E.C.A.No.279/2015 and ESI Dispensary and he has not taken treatment at ESI Dispensary and he has not taken any medical document from ESI Dispensary and he has not obtained ESI Cash benefits from ESI Corporation. He has further stated that, he has not enquired that, whether the Respondent No.1 has informed about the incident to the ESI Corporation or not and he has not lodged a complaint before the ESI Corporation alleging that, the Respondent No.1 has not informed about the incident caused to him to the ESI Corporation. He has further stated that, he is an Engineer and not workman.
18. The R.W.1, who is a Supervisor, Unit - II of the Respondent No.1 Company, has stated in his examination-in-chief that, the Petitioner was working as a Trainee Engineer and he was trainee since May 2008 and he was not a confirmed employee of their Company and he was drawing Rupees 8,500/- as consolidated monthly salary. He has further stated that, on 23.04.2011 at about 5.30 p.m., the Petitioner removed the side guard, which was bolted and he entered the hydraulic machine from back side and while the machine was in the running condition, he had put his right hand inside the machine to remove some tools, hydraulic object hit at his right arm and his right hand got fractured and knowing fully aware about the warning that, the running machine should not be meddled with, due to his negligence and mistake the said accident occurred. He has further stated that, immediately, he was taken to Vivekananda Hospital by the Management of M/s. SPM India Ltd., with the help of staff members and the Petitioner was admitted on 23.04.2011 at 7.00 SCCH-7 28 E.C.A.No.279/2015 p.m., and he was discharged on 27.04.2011 at 11.00 a.m., and after necessary treatment from Vivekananda Hospital. He has further stated that, after treatment, he never came for work and registered letters were sent by their Company on 21.07.2012 to report back to his work and he neither reported nor sent any letter to the Company.
19. But, based on the said evidence of P.W.1, which has been elicited from his mouth by the Respondents and non-filing of any complaint by the Petitioner in respect of the said incident before the jurisdictional Police and the evidence of R.W.1, it cannot be believed and accept the defence taken by the Respondent No.1 that, the Petitioner was not a confirmed employee of the Respondent No.1 Company at the time of alleged incident and due to his own negligence itself, the said incident was taken place on 23.04.2011 at 5.30 p.m., as, it is very much clear from the said oral evidence of R.W.1 itself that, the Petitioner was working as a Trainee Engineer since 2008 in the Respondent No.1 Company by drawing a salary of Rupees 8,500/- p.m., and at the time of incident, he was very much present in the accidental spot and he had sustained fracture of his right hand, when the Hydraulic Machine was running in the premises of the Respondent No.1 and the staff of the Respondent No.1 itself, have shifted the Petitioner to Vivekananda Hospital to give treatment to the said accidental injuries and by admitting as an inpatient from 23.04.2011 to 27.04.2011, i.e., for 5 days, the Petitioner took treatment to the said accidental injuries in the said Hospital. Further, the Petitioner has produced Ex.P.1 Appointment Letter SCCH-7 29 E.C.A.No.279/2015 dated 28.05.2008, Ex.P.2 SBI Bank Passbook relating to him, Ex.P.5 Discharge Summary, Ex.P.6 X-ray Films 17 in numbers, Ex.P.7 Photographs 2 in numbers and Ex.P.8 CD relating to Ex.P.7 Photographs and Ex.P.9 Identity Card relating to him, which clearly disclosed that, on 28.05.2008, the Petitioner was appointed as Trainee Engineer in the Company of the Respondent No.1 on a salary of Rupees 8,500/- p.m., and training period was 6 months and thereafter, he continued his service as an Engineer in the Company of the Respondent No.1 and at the time of incident, he was drawing a salary of Rupees 10,000/- p.m., from the Respondent No.1 and during the course of working hours, when he was installing a Hydraulic Machine along with other workers on 23.04.2011 at 5.30 p.m., while testing the said machine, suddenly hit his right arm and as such, he had sustained grievous injury, i.e., fracture of right arm and thereafter, with the help of workers of the Respondent No.1, he was shifted to Vivekananda Hospital and by admitting as an inpatient from 23.04.2011 to 27.04.2011, i.e., for 5 days, he took treatment to the said accidental injury at Vivekananda Hospital and thereafter, again he was admitted as an inpatient from 03.01.2013 to 10.01.2013 at Vydehi Hospital to take further treatment to the said accidental injuries.
20. Further the P.W.1 in his examination-in-chief has clearly stated that, the Respondent No.1 Company has not spent any single rupee for treatment, but, however the Respondent No.1 company has taken original Discharge Summary for settlement of the amount along with Medical Bills, but, the Respondent No.1 SCCH-7 30 E.C.A.No.279/2015 never comes forward to settle the amount and the Respondent No.1 Company has only taken him to the Hospital and admitted there, but, later on, the Respondent Company has not taken care of him. But, the R.W.1, who is a Supervisor of the Respondent No.1 has clearly stated that, their Company has paid Rupees 10,483/- towards medicines and Rupees 36,360/- was paid to the Hospital on account of treatment of the Petitioner. To consider the same, the Respondent No.1 has produced Ex.R.2 Details of Medical Expenses, Ex.R.3 Payment Voucher dated 30.04.2011, Ex.R.4 Cash Bill dated 27.04.2011, Ex.R.5 Cheque dated 27.04.2011 and Ex.R.6 Statement of Bank of Account, which clearly disclosed that, the Respondent No.1 has taken medical care of the Petitioner in respect of the incidental injuries sustained by the Petitioner in the premised of the Respondent No.1. The said material evidence clearly goes to show that, since the Petitioner was working under the Respondent No.1 and since the incident was taken place in the premises of the Respondent No.1, the Respondent No.1 has paid the amount towards medicines as per Ex.R.2 to Ex.R.6. This material evidence clarify the fact that, at the time of incident, the Petitioner was working as an Engineer under the Respondent No.1 and the relationship in between the Petitioner and the Respondent No.1 was that off employee and employer.
21. Further, the P.W.1 in his cross-examination has clearly stated that, he has completed Diploma in Mechanical Course and he has joined as a trainee with the Respondent No.1 by accepting consolidated salary of Rupees 8,500/- per month as a sty fund SCCH-7 31 E.C.A.No.279/2015 and on 24.04.2011 at 5-30 p.m., the alleged accident was taken place and the working hours was 8-30 a.m., to 5-00 p.m. He has further stated that, at the time of accident, the Hydraulic Machine was on running condition and he has not removed the bolt fixed to the Hydraulic Machine and the Respondent No.1 has admitted him in Vivekananda Hospital to take treatment to the accidental injury and after getting treatment, he was discharged. From the said evidence of P.W.1, it is made crystal clear that, even during the course of cross-examination, the Petitioner has established his specific case that, at the time of incident, he was working under the Respondent No.1 and the relationship between him and the Respondent No.1 was that off employee and employer and the alleged incident was taken place in the premises of the Respondent No.1, when the Petitioner was working under the Respondent No.1.
22. The R.W.2, who is a Social Security Officer of the ESI Corporation, i.e., Respondent No.2, has clearly stated in his examination-in-chief that, admittedly, the Petitioner is not an insured person as per the provisions of the ESI Act and hence, not entitled for any of the benefits under the provisions of the ESI Act, 1948 and he has not approached ESI Authorities for claiming disablement benefit under the ESI Act and the Respondent No.1 being the employer has admittedly not paid any contribution in respect of the Petitioner under the ESI Act, 1948. As this Tribunal has already observed that, the P.W.1 in his cross-examination has clearly stated that, he has not submitting ESI Declaration Form at the time of his appointment and no insurance number is allotted SCCH-7 32 E.C.A.No.279/2015 to him to show that, he has covered under ESI Scheme and no Identity Card issued by ESI to him and ESI not deducted in his salary and he has not obtained ESI Cash benefits from ESI Corporation. From the said evidence of R.W.2 it is made crystal clear that, at the time of incident, the Petitioner was not an insured person in the ESI Corporation. It is also clear from the evidence of R.W.2 that, the Petitioner was working as an employee under the Respondent No.1.
23. The R.W.1, who is a Supervisor of the Respondent No.1 Company in his cross-examination has clearly stated that, the Petitioner was an employee in their Company at the time of incident and as per the terms and conditions of Ex.P.1 Appointment Letter dated 28.05.2008, the period of training is for 3 months and as per the said terms and conditions, the Petitioner has worked as a trainee in their Company and after the training, their Company has issued Ex.P.9 Identity Card to the Petitioner. He has further stated that, after the training period, the Petitioner was drawing salary of Rupees 10,000/- per month from their Company and the salary of the Petitioner was credited to his Bank Account. He has further stated that, since the Petitioner was Service Engineer, he was shifted to their Branch at Bannerghatta and the working hours of the Petitioner was 9-00 a.m., to 1-00 p.m., and 1-30 p.m., to 5.30 p.m., and during the course of employment, the Petitioner had caused incident at 5.30 p.m., and at that time, machine operator and PLC Programmer were present and after the incident, they have shifted the Petitioner to the Hospital and the Petitioner was admitted as an inpatient for 5 SCCH-7 33 E.C.A.No.279/2015 days in the Hospital. He has further stated that, along with Rupees 26,000/-, Rupees 10,000/- also paid for medicines with full monthly salary to the Petitioner at the time of admission in the Hospital. He has further stated that, since at the time of incident, the Petitioner was a trainee, he was not having PF and ESI facility. From the said material evidence of R.W.1, it is further made crystal clear that, at the time of incident, the Petitioner was working under the Respondent No.1 by drawing a salary of Rupees 10,000/- p.m., and the relationship in between the Petitioner and the Respondent No.1 was that off employee and employer and during the course of employment, the incident was taken place to the Petitioner in the premises of the Respondent No.1 and in this regard, the Respondent No.1 has paid Rupees 26,000/- towards medical expenses along with salary of Rupees 10,000/-.
24. As this Tribunal has already observed about the production of Ex.P.3 Medical Bills, Ex.P.5 Discharge Summary, Ex.P.6 X-ray Films, Ex.P.7 Photographs and Ex.P.8 CD relating to Ex.P.7 Photographs, which clearly disclosed that, in the said incident, the Petitioner had sustained fracture of right arm, which is grievous in nature. Further, the P.W.2, who has assessed the disability of the Petitioner, has clearly stated in his examination- in-chief that, the Petitioner has sustained injuries, such as, fracture of lower end of humerus. He has further clearly stated in his cross-examination that, the Petitioner had injuries, i.e., fracture of numerous. From this medical evidence, it is made crystal clear that, in the said incident, the Petitioner had sustained one grievous injury, i.e., fracture of right arm.
SCCH-7 34 E.C.A.No.279/201525. From the above said material evidence, both oral and documentary, it is clearly proved that, during the course of employment under the Respondent No.1, i.e., working hours, when the Petitioner was installing Hydraulic Machine along with other helpers in the premises of the Respondent No.1 and after installation of the machine while testing the machine suddenly hit his right arm and as such, he sustained grievous injury and the relationship in between the Respondent No.1 and the Petitioner was that off employer and employee and during the course of employment, the said incident was taken place to the Petitioner. Accordingly, I answered Issue No.1 in the Affirmative.
26. ISSUE No.2 :- The Petitioner has not produced any authenticated documents to consider his actual age at the time of incident. Even, he has not stated anything about his actual age in his examination-in-chief. In this regard, the P.W.1, who is the Petitioner, has clearly stated in his cross-examination that, he has not produced any documents to show his actual age at the time of incident. There is discrepancy in mentioning the actual age of the Petitioner at the time of incident in the Police and medical documents. But, Ex.P.5 Discharge Summary, which is a medical document, clearly disclosed that, at the time of incident, the Petitioner was 27 years old. Hence, the age of the Petitioner is considered as 27 year at the time of incident.
27. While answering Issue No.1, this Tribunal has already observed and come to the conclusion that, at the time of incident, the Petitioner was working as an Engineer under the Respondent SCCH-7 35 E.C.A.No.279/2015 No.1 and he was earning Rupees 10,000/- p.m., which was paid by the Respondent No.1. The same has also been clearly stated by the P.W.1 and R.W.1 in their evidence. The R.W.1 has clearly stated in his cross-examination that, after the training period, the Petitioner was drawing a salary of Rupees 10,000/- per month from their Company and the salary of the Petitioner was credited to his Bank Account. He has also clearly stated that, along with Rupees 26,000/-, which is the Hospital expenses, Rupees 10,000/- also paid to the Petitioner as full monthly salary. Hence, based on the same, it can be safely held that, at the time of incident, the salary of the Petitioner was Rupees 10,000/- p.m.
28. While answering Issue No.1, this Tribunal has already observed and come to the conclusion based on the medical documents as well as oral version of P.W.1 and R.W.1 that, in the said incident, the Petitioner had sustained fracture of right arm, which is grievous in nature and by admitting as an inpatient from 23.04.2011 to 27.04.2011, i.e., for 5 days, he took treatment to the said accidental injury at Vivekananda Hospital. The Petitioner has also produced Ex.P.5 Discharge Summary relating to Vydehi Institute of Medical Science and Research Centre, which disclosed that, again, the Petitioner was admitted in the said Hospital on 03.01.2013 to take treatment to the said accidental injury and during the course of treatment, implants are removed and new implants are inserted and he was discharged on 10.01.2013. The same has been clearly stated by the P.W.1 in his examination-in- chief. The same has not been disputed by the Respondents. From this, it is made crystal clear that, by admitting as an inpatient SCCH-7 36 E.C.A.No.279/2015 from 03.01.2013 to 10.01.2013, i.e., for 8 days, the Petitioner again took treatment to the said accidental injuries in the said Hospital.
29. From the said medical evidence, it is made crystal clear that, the Petitioner took treatment to the said accidental injury by admitting as an inpatient, totally for 13 days.
30. The P.W.1 has stated that, he is not in a condition to work as earlier, even today, he is in bed rest and no weight is taken in the right arm, because of the injury. He has further stated that, he was not worked from the date of incident till today and the Respondent has not paid any salary during that period and hence, the Respondent is requires to pay loss of salary of Rupees 80,000/-.
31. The P.W.2, who is not a treated Doctor has stated in his examination-in-chief that, he has examined the Petitioner recently on 31.12.2015 for disability assessment and he complained of pain in right elbow cannot lift with right upper limb deformity of elbow difficult to do routine activities, on examination, he found the disabilities deformity of right elbow, tenderness over right elbow restriction of joints movements of right elbow flexion extension 70D, normal 0-150, difficult and lift weight over the head with right upper limb difficult to eating. He has further stated that, radiological examination shows fracture mal-united with implant in situ. He has further stated that, he is of the opinion that, the Petitioner suffers from permanent physical SCCH-7 37 E.C.A.No.279/2015 disability of 40% right upper limb, which is 14% whole body and needed one more surgery for right removal of implant. The P.W.2 has produced Ex.P.11 OPD Book and Ex.P.12 X-ray Film.
32. But, based on the said evidence of P.W.1 and P.W.2 coupled with the contents of the said medical documents, it cannot be believed and accept that, due to the accidental injuries, the Petitioner is suffering from permanent physical disability of 40% right upper limb, which is 14% to the whole body, as, admittedly, the P.W.2 is not a treated Doctor and the same has been admitted by him in his cross-examination. Further, the P.W.2 in his cross-examination has clearly stated that, he has gone through the copy of Discharge Summary only and he does not know the nature of the job of the Petitioner and the Petitioner has came to their Hospital only for assessment of disability and the previous history of the Petitioner is not mentioned in Ex.P.11 OPD Book. Further, neither the Petitioner nor the P.W.2 has produced the radiological report relating to the Ex.P.12 X-ray Film. In this regard, the P.W.2 has stated in his cross-examination that, he has not produced the radiological report. Further, the P.W.2 has not specifically assessed the permanent physical disability of the Petitioner, which he is suffering from the said accidental injury. In this regard, the P.W.2 has stated in his cross- examination that, he has not given the opinion of permanent functional disability of the Petitioner and the Petitioner may be having functional disability and as he does not know the nature of work of the Petitioner, he has not assessed the same and he has not stated anything about the permanent functional impairment of SCCH-7 38 E.C.A.No.279/2015 the Petitioner in his affidavit and since he is not having knowledge about the job of the Petitioner and nature of work, he cannot say how the disability assessed by him going to affect his work. From the said evidence of P.W.2, it is made crystal clear that, before assessing the disability of the Petitioner, the P.W.2 has not verified all the previous medical records relating to the Petitioner to know the nature of injury sustained by the Petitioner in the incident, line of treatment and length of treatment and also the nature of work, which was doing by the Petitioner at the time of incident and he has only assessed the physical disability of the Petitioner and not functional disability. Further, the P.W.2 has not specifically stated the clinical notes in his affidavit to show that, how, he came to the opinion that, the Petitioner suffering from permanent physical disability of 40% to the right upper limb, which is 14% to the whole body. Furthermore, the Petitioner has not examined the treated Doctor and he has not produced the disability certificate issued by the treated Doctor or the competent Doctor. Further, it is clear from the evidence of P.W.1 and R.W.1 that, after the incident, the Petitioner has not joined the Respondent No.1 Company to continue the same job, inspite of the Letter dated 21.07.2012 issued by the Respondent No.1 Company as per Ex.R.7. Further, the R.W.1 in his cross- examination has clearly stated that, after the accident, their Company has not paid the salary to the Petitioner. From this, it appears that, since the Petitioner himself has not reported the duty in the Respondent No.1 Company after recovery from the accidental injuries, the Respondent No.1 Company has not paid salary to him. Hence, the question of loss of salary of Rupees SCCH-7 39 E.C.A.No.279/2015 80,000/-, which is required to pay by the Respondent No.1 to the Petitioner does not arise for consideration at all. Hence, the said extent of 14% to the whole body disability as assessed by the P.W.2 cannot be believed and accept.
33. However, in the said incident, the Petitioner had sustained fracture of right arm and totally by admitting as an inpatient for 13 days, he took treatment to the said accidental injury at Vivekananda Hospital and Vydehi Institute of Medical Science and Research Centre and he was 27 years old at the time of incident and he was working as a Engineer for installation of machine in the Company of the Respondent No.1 at the time of incident. By considering the same, this Tribunal feels that, due to the said accidental injuries, the Petitioner is suffering from permanent physical and functional disability of 12% to the whole body, which is believable and acceptable one.
34. It is already held by this Tribunal that, at the time of incident, the Petitioner was working under the Respondent No.1 as an Engineer when the incident was taken place. The said nature of injuries sustained by the Petitioner comes under Schedule - II of the Employees Compensation Act, 1923. As the Petitioner was an Engineer at the time of incident and he had sustained the said injuries, due to which, he is definitely suffering loss of earning capacity to an extent of 12%.
35. Therefore, this Tribunal has come to the conclusion that, due the incidental injuries, the Petitioner is suffering from SCCH-7 40 E.C.A.No.279/2015 12% disability to the whole body, which caused also functional activities and hence, the Petitioner has lost his earning capacity to an extent of 12%. Hence, the Petitioner is entitled for compensation towards loss of earning capacity due to the disability of 12%.
36. The factors, which determine the amount of compensation, are already decided by this Tribunal in the above said discussion.
37. The salary of the Petitioner is already held at Rupees 10,000/- per month. As per Section 4(1)(b) of the Employees' Compensation Act, 1923, where permanent total disablement results from the injury, an amount equal to 60% of the monthly wages of the injured, i.e., employee, multiplied by the relevant factor or an amount of Rupees 1,40,000/-, whichever is more, shall be considered. Therefore, the income per month comes to Rupees 6,000/- (Rupees 10,000/- x 60%).
38. As this Tribunal has already come to the conclusion that, at the time of accident, the age of the Petitioner was 27 years. The applicable multiplier corresponding to the said age of 27 years as per Schedule IV is 213-57. The disability of the Petitioner is already assessed at 12%. Therefore, the loss arising out of the said 12% disability for monthly income of Rupees 6,000/- by applying multiplier 213-57 comes to Rupees 1,53,770- 40, i.e., (Rupees 6,000/- x 213-57 x 12%). Hence, the Petitioner is SCCH-7 41 E.C.A.No.279/2015 entitled for Rupees 1,53,770-40 towards loss of earning capacity, which is rounded off Rupees 1,53,770/-.
39. The P.W.1 has stated that, he was spend Rupees 2,50,000/- for medical expenditure and more than Rupees 65,000/-. He has further stated that, some of the original Medical Bills are misplaced and some of the Bills and Discharge Summary has been taken by the Respondent No.1 and now available Medical Bills are produced along with calculated memo and prescription. But, in this regard, the Petitioner has produced Ex.P.3 Medical Bills 63 in numbers, which is amounting of Rupees 86,020/-, Ex.P.4 Medical Prescriptions 20 in numbers and Ex.P.10 Medical Bills 2 in numbers amounting of Rupees 489-70 (Rupees 231/- + Rupees 258-70). The P.W.1 in his cross-examination has stated that, he has not produced the Medical Bill amounting of Rupees 36,860/- and he has not produced entire documents to show that, he has spent Rupees 2,00,000/- towards his treatment. The R.W.1 has stated that, their company has paid Rupees 10,483/- towards medicines and Rupees 36,360/- was paid to the Hospital on account of the treatment of the Petitioner. The Respondent No.1 has produced Ex.R.2 True copy of details of medical expenses, Ex.R.3 True copy of payment voucher dated 30.04.2011, Ex.R.4 Cash Bill dated 27.04.2011, Ex.R.5 True copy of Cheque dated 27.04.2011 and Ex.R.6 Statement of Bank Account. On perusal of the contents of Ex.P.3 Medical Bills and Ex.R.2 to Ex.R.6, it clearly goes to show that, the Respondent No.1 has paid Rupees 36,360/- out of Ex.P.3 Medical Bills and Serial No.32 amounting of Rupees 8,000/- is included in Serial No.43 IP Deposit Receipt.
SCCH-7 42 E.C.A.No.279/2015It is not the case of the Petitioner that, the said amount of Rupees 36,360/- which has been paid by the Respondent No.1 is repaid by him to the Respondent No.1. Hence, the said amount of Rupees 36,360/- and Rupees 8,000/-, totally Rupees 44,360/-, which is included in Ex.P.3 Medical Bills has to be deducted in the total amounting of Rupees 86,020/- of Ex.P.3 Medical Bills. After deduction, the actual amount comes to Rupees 41,660/-. No doubt, the Petitioner has not produced Medical Prescriptions in respect of some Medical Bills of Ex.P.3 and Ex.P.10. But, based on the non-production of Medical Prescriptions, the amount covered under Ex.P.3 and Ex.P.10 Medical Bills cannot be rejected, as, the said Medical Bills are standing in the name of the Petitioner. The Petitioner has taken treatment in the Hospitals as an inpatient for 13 days. Considering the nature of the injuries and the line of treatment given to the Petitioner and length of treatment, the possibility of spending the said amount for the medicines cannot be doubted. Therefore, it is necessary to award the said actual medical expenses of Rupees 41,660/-, which covered under Ex.P.3 Medical Bills and Rupees 489-70, which covered under Ex.P.10 Medical Bills, in total Rupees 42,149-70 to the Petitioner, which is rounded off Rupees 42,150/-.
40. The P.W.1 has stated that, the Doctor has advised to take further treatment and also he requires future operation to his right hand. He has further stated that, advised that, future operation is requires for removal of plats and nets, for the same another Rupees 60,000/- is required. The P.W.2 has stated that, the Petitioner needed one more surgery for right removal of SCCH-7 43 E.C.A.No.279/2015 implant. To consider the same, neither the Petitioner nor the P.W.2 produced the estimation to show the actual future medical expenses for his future treatment. Further, there is no provision under the Employees Compensation Act, 1923 to award future medical expenses to the injured. Hence, the Petitioner is not entitled for any compensation towards future medical expenses.
41. In all, the Petitioner is entitled for total compensation of Rupees 1,95,920/- (Rupees 1,53,770/- + Rupees 42,150/-).
42. The Respondent No.1 was aware of the employment of the deceased, accident, injuries caused to the Petitioner during the course of employment and having aware that, the Petitioner has filed the present case, it has neither deposited the required compensation, within the stipulated time nor intimated the incident to the concerned Authority in accordance with law. Further, the P.W.1 in his cross-examination has admitted that, he has left the job and the Respondent No.1 by issuing a letter called him to join the duty, merely on the ground that, by issuing a written letter the Respondent No.1 has called upon the Petitioner to join the duty, the Respondent No.1 cannot be escaped from its liability to pay compensation to the Petitioner. Hence, it is just, proper and necessary to award interest at the rate of 12% per annum on the said compensation amount of Rupees 1,95,920/- from 23.05.2011 till the deposit of the said compensation amount. Therefore, the Petitioner is entitled for compensation of Rupees 1,95,920/- along with interest at the rate of 12% per annum, from 23.05.2011 till payment.
SCCH-7 44 E.C.A.No.279/201543. The P.W.1 has stated that, he has approached the Respondent No.1 Company and requested to pay the compensation and damages and further asked for the other benefits, but, the Respondent not responded properly. He has further stated that, though he was working as Mechanical Engineer in the Respondent No.1 Company, it has not provided any ESI and PF and the Company has not paying the same to the concerned Department even after 2 years of the employment and in the Respondent No.1 Company at the time of incident, they promised that, they will pay all the Medical Bills and further promised that, they will pay the salary till recovery, but, the Company has escaped from its burden and the Company has only taken him to Hospital and admitted there and thereafter, not taken any interest and care of him and after discharge also, he has approached the Respondent No.1 several times and requested to pay benefits and other service charges, but, they did not response properly. He has further stated that, due to the assurance of the Respondent Company that, they will provide all the benefits and future security to the life, he was not taken any steps against the Respondent, but, now the Company has not complied their assurance and he has seriously injured and he was not in a position to approach the Authorities immediately, since he is only the bread earner of the family, they are mother and father and after recovery from the injury, he has approached the Respondent No.1 and requested to prove the benefits and compensation as required under law, when he was approached to the Respondent No.1 for several occasions for compensation and providing of alternative job, but, the Respondent No.1 has giving SCCH-7 45 E.C.A.No.279/2015 evasive reply to him. He has further stated that, the Respondent No.1 filed the Written Statement and admitted his employment with Company and accident and denied the Hospital expenditure and also the payment by him and further stated that, the Respondent No.1 covered with insurance with Respondent No.3 company and also covered the ESI and therefore, the ESI and Insurance Company has incorporated as Respondents in this petition. He has further stated that, the Respondents are liable to pay compensation to him. The P.W.1 in his cross-examination has stated that, he has not submitting ESI Declaration Form at the time of his Appointment and no insurance number is allotted to him to show that, he has covered under ESI Scheme and no identify Card issued by ESI to him and ESI not deducted in his salary.
44. The R.W.1 has stated that, no notice was sent by the Petitioner to their Company claiming compensation after the said accident and he never approached their Company for any compensation. He has further stated that, their Company is covered under Employees State Insurance Corporation Act and their Company has taken a Workmen's Compensation policy with the National Insurance Company, Gandhinagar Branch, for the period from 05.06.2010 to 04.06.2011 and the said policy was also periodically renewed after 04.06.2011 and since their Company is liable to pay the compensation, if any, to the Petitioner, as the period of accident of the Petitioner was covered under the said policy. He has further stated that, their Company/Factory is also covered under the provisions of ESI Act SCCH-7 46 E.C.A.No.279/2015 and the Petitioner ought to have claimed the benefits from ESI and his petition is not maintainable under the Employees Compensation Act. The R.W.1 has produced Ex.R.8 Insurance Policy issued by the Respondent No.3 in its favour.
45. The R.W.2 has stated that, the Petitioner is not an insured person under ESI Act, 1948, as stated by the Respondent No.1 and also borne out by their records, i.e., Return of Contribution for the period from 01.04.2010 to 30.09.2010 and even the Respondent No.1 has not submitted accident report of the Petitioner to the ESI Corporation as required under the provisions of the ESI Act, 1948. He has further stated that, the Respondent No.1 being the employer has admittedly not paid any contribution in respect of the Petitioner under the ESI Act, 1948. He has further stated that, ESI Corporation is not liable to pay any benefits to the Petitioner under the ESI Act, 1948 and the Petitioner is barred from claiming benefits from ESI Corporation under Section 75(3) of the ESI Act 1948, before this Hon'ble Court and the Petitioner has not invoked any provisions of the ESI Act 1948, to justify his claim from ESI Corporation. The R.W.2 has further stated in his cross-examination that, ESI Subscription is paid by the Company itself and the Respondent No.1 Company has ESI coverage facility. The Respondent No.2 has produced Ex.R.9 Form No.5, i.e., Return of Contribution along with enclosures, list of employees for the period from April 2010 to September 2010.
SCCH-7 47 E.C.A.No.279/201546. On perusal of the said oral version of P.W.1, R.W.1 and R.W.2, it clearly goes to show that, the Petitioner is not a member of the Corporation of the Respondent No.2 and he has not taken any benefit from his ESI Corporation. In this regard, the R.W.1 in his cross-examination has clearly admitted that, the Petitioner is not a member of ESI Corporation and he has not taken any benefits from ESI Corporation and he has not informed to the ESI Corporation that, he had sustained injuries in the alleged incident and ESI Corporation is not liable to pay any compensation to the Petitioner, as, he is not a member of ESI Corporation. From this material evidence, it is made crystal clear that, at the time of incident, the Petitioner was not covered under ESI scheme, which obtained by the Respondent No.2. When the Petitioner is not covered under ESI Scheme, which took place by the Respondent No.1, he is not covered under benefits of the ESI Corporation. Hence, the Respondent No.2 is not liable to pay any compensation to the Petitioner.
47. While answering Issue No.1 this Tribunal has already observed and come to the conclusion that, during the course of employment under the Respondent No.1, i.e., working hours, when the Petitioner was installing Hydraulic Machine along with other helpers and after installation of the machine while testing the machine, suddenly, hit his right arm and as such, he sustained grievous injury and the relationship in between the Respondent No.1 and the Petitioner was that off employer and employee and during the course of employment, the incident was taken place. The Respondent No.1 has produced Ex.R.8 Insurance SCCH-7 48 E.C.A.No.279/2015 Policy, which clearly disclosed that, the Respondent No.1 has taken a Workman Compensation from the Respondent No.3 Insurance Company for a period from 05.06.2010 to 04.06.2011, which covers the date of incident. From this, it is clearly proved that, as on the date of incident, the Respondent No.1 was having a valid Insurance Policy covering the risk of its employees. No doubt, admittedly, before filing the present petition and immediately after the incident, the Petitioner has not issued any notice or Legal Notice in writing to the Respondent No.1 claiming compensation from it. In this regard, the P.W.1 in his cross-examination has stated that, before filing this petition, he has not issued Legal Notice to the Respondent No.1 claiming compensation. Further, the P.W.1 in his cross-examination has admitted that, he has left the job and the Respondent No.1 by issuing a letter called him to join the duty. But, it no way affect to consider the case of the Petitioner in granting compensation to him, as, the Respondent No.1, who was an employer of the Petitioner was well aware about the incident caused to the Petitioner immediately after the incident and the Official of the Respondent No.1 had shifted the Petitioner to the Hospital to give treatment to the incidental injuries to the Petitioner and though having knowledge about the incident, which caused to the Petitioner in its premises during the course of employment under it, the Respondent No.1 did not care to pay the compensation to the Petitioner required under law. Merely on the ground that, by issuing a written letter, the Respondent No.1 has called upon the Petitioner to join the duty after the recovery of the incidental injury, the Respondent No.1 cannot be escaped from its liability to pay compensation to the SCCH-7 49 E.C.A.No.279/2015 Petitioner, as, the things and facts, which occurred at the time of incident can only be taken into for consideration. Therefore, the Respondent No.1 being an employer is liable to pay the above said compensation and interest to the Petitioner. Since, as per Ex.R.8 Insurance Policy, the Respondent No.1 has valid Insurance Policy to cover the risk of its employees, which was issued by the Respondent No.3 Insurance Company, both the Respondents No.1 and 3 are liable to be pay the above said compensation and interest to the Petitioner jointly and severally. Since, the Respondent No.3 is an insurer, it shall indemnify the Respondent No.1. In view of the said reasons, the petition filed by the Petitioner as against the Respondent No.2 is liable to be dismissed and it is liable to be allowed as against the Respondents No.1 and
3. In view of the above said reasons, the principles enunciated in the decision cited by the Learned Counsel appearing for the Petitioner are aptly applicable to the present facts and circumstances of the case on hand. On the other hand, the principles enunciated in the decisions cited by the Learned Counsel appearing for the Respondent No.1 are applicable to the present facts and circumstances of the case on hand only to some extent. Hence, Issue No.2 is answered accordingly.
48. ISSUE NO.3 :- For the aforesaid reasons, I proceed to pass the following, ORDER The petition filed by the Petitioner under Section 10 of the Workmen SCCH-7 50 E.C.A.No.279/2015 Compensation Act, 1923 is hereby partly allowed with costs as against the Respondents No.1 and 3.
The petition filed by the Petitioner under Section 10 of the Workmen Compensation Act, 1923 is hereby dismissed without costs as against the Respondent No.2.
The Petitioner is entitled for compensation of Rupees 1,95,920/-
with interest at the rate of 12% p.a. from 23.05.2011 till the date of payment, from the Respondent No.3.
The Respondent No.3 shall deposit the said compensation and interest in this Tribunal, within one month from the date of this Order.
In the event of deposit of compensation and interest, entire amount shall be released in favour of the Petitioner through account payee cheque, on proper identification.
Advocate's fee is fixed at Rupees 1,000/-.
SCCH-7 51 E.C.A.No.279/2015Draw award accordingly.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then, pronounced by me in the open Court on this, the 12th day of August, 2016.) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
ANNEXURE
1. WITNESSES EXAMINED BY THE PETITIONER :-
P.W.1 : Sri. D. Manjunatha
P.W.2 : Dr. B. Ramesh
2. DOCUMENTS MARKED BY THE PETITIONER :-
Ex.P.1 : Appointment Letter dated 28.05.2008
Ex.P.2 : SBI Bank Pass Book relating to D.
Manjuanth
Ex.P.3 : Medical Bills (63 in nos.)
Ex.P.4 : Medical Prescriptions (20 in nos.)
Ex.P.5 : Discharge Summary
Ex.P.6 : X-ray Films (17 in nos.)
Ex.P.7 : Photographs (2 in nos.)
Ex.P.8 : CD relating to Ex.P.7 Photographs
Ex.P.9 : Identity Card relating to Manjuanth. D.
Ex.P.10 : Medical Bills (2 in nos.)
Ex.P.11 : OPD Book
Ex.P.12 : X-ray Film
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
R.W.1 : Suresh Naikar
SCCH-7 52 E.C.A.No.279/2015
R.W.2 : R. Chandrasekar
4. DOCUMENTS MARKED BY THE RESPONDENTS :-
Ex.R.1 : Authorization Letter dated 02.02.2016
Ex.R.2 : True Copy of Details of Medical Expenses
Ex.R.3 : True Copy of Payment Voucher dated
30.04.2011
Ex.R.4 : Cash Bill dated 27.04.2011
Ex.R.5 : True Copy of Cheque dated 27.04.2011
Ex.R.6 : Statement of Bank Account
Ex.R.7 : True Copy of Letter dated 21.07.2012
Ex.R.8 : Insurance Policy
Ex.R.9 : True copy of Form No.5, i.e., Return of
Contribution along with enclosures, list of employees for the period from April 2010 to September 2010 (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.