Kerala High Court
Mar Themotheous Birth Centenary Press vs Santhosh Raj on 18 August, 2000
Equivalent citations: 2001ACJ1085, [2000(87)FLR736], (2001)ILLJ200KER
Bench: J.B. Koshy, M. Ramachandran
JUDGMENT
1. The employer in WCC No. 126 of 1991 before the Commissioner for Workmen's Compensation, Thrissur is the appellant herein. One Santhosh Raj, claiming to be a workman employed by the appellant, had filed an application under Section 22 of the Workmen's Compensation Act. His case was that in the course of his employment, on December 5, 1988, his right hand got entangled in the printing machine and three fingers got amputated. As no compensation was paid to him, according to him, he was constrained to file the application.
2. The employer resisted the application. It was stated that the establishment is a charitable institution and the claimant was a student who received training there. The accident according to them had occurred due to his carelessness and the applicant was not receiving any payments, he being not an employee.
3. Parties had adduced evidence in support of their respective stands. By order dated May 15, 1993 the Commissioner had allowed the claim. The compensation was assessed at Rs. 45,044/- with interest. The appellant challenges the sustainability of the claim, findings about the employer - employee relationship as also the quantum of compensation that has been assessed as payable to the claimant.
4. Under Section 30 of the Workmen's Compensation Act, an appeal is envisaged only when there is substantial question of law to be decided. The jurisdiction of the High Court is limited and the Commissioner, an acclaimed specialist in such adjudication has been bestowed with very wide powers. In the above back ground we will have to examine how far interference is permissible or is required.
5. The first contention is that the institution is doing charitable work and imparts training to the students and hence the Act is not applicable to them. The Commissioner in fact had gone into the details of evidence. He has found that the establishment employs personnel, attend to job work and the capital employed is, substantial. Equally, if not with greater importance, students are given training in theory and practice of printing. The applicant had received training there for two years and after the designated training, according to the appellant, he was renewing skills and according to the applicant had been assigned work. The Commissioner has found that he was working, and on wages, and being essentially questions of facts, we confirm the findings.
6. For the same reason, it is not also possible to come to a different conclusion about the liability of the employer. It has to be adjudged that the accident occurred during and in the course of employment in a scheduled employment. There is a presumption available that if the injury was sustained while in the premises it is to be taken as one which occurred in the course of employment. We cannot also countenance the argument of the employer that the applicant was negligent and the employer is therefore not answerable. This is because the liability is absolute. Unless it is established that the accident took place as a result of wilful disregard of any express instructions laid down for ensuring safety, or that employee, during the work was under the influence of drinks or drugs, the disability due to the injury attracts compensation. The contention of the appellant disclaiming liability, therefore, is only to be rejected.
7. Mr. Rasheed, counsel for the appellant, had thereupon invited our attention to the erroneous manner in which the compensation was computed by the Commissioner. The order deals with the issue in the following way:
"The applicant stated that he was 19 years old at the time of accident. The opposite party has no evidence contrary. The monthly wages according to the applicant is Rs. 500/-. The wages claimed by him does not appear to be exorbitant payable to a printer. The qualified medical practitioner has certified that the applicant has a disability of 30% in consideration of loss of 3 fingers of his right hand. It is a fact that a boy of 19 who lost the function of his fingers (right) hand cannot do any work relating to the trade. So I fix 80% as loss of earning capacity. The age factor for 19 years according to schedule IV of the Act is 225.22. So the applicant is entitled to a compensation as follows:
500 x 50/100 x 225.22 x 80/100 = 45,044 /-
The applicant is also entitled to simple interest at 5% from the date on which the claim fell due under Section 4-A (3) of the Act. The claim fell due in this case on November 5, 1988. So interest has to be paid from that date."
8. The submission of the counsel is well founded when it is contended that the Commissioner has committed an error in the assessment of compensation. It is evident that the distinction between a scheduled injury and a non scheduled injury has totally been kept aside. Schedule I of the Workmen's Compensation Act is explicit and has stood the test of time in respect of the injuries listed, we are of opinion that no further adjudication on the loss of earning capacity of the person, with reference to the particular avocation practiced by him or any other yardstick is warranted. The wordings of the Act, Rules and the Schedule admit no ambiguity. Schedule I lists the injuries deemed to result in permanent disablement and the resulting percentage of earning capacity sustained by such injury. There is no elbow room for substituting the percentage of loss of earning capacity in respect of such of the injuries suffered by a person. The medical practitioner certified the disability at 30%. This was taking note of the circumstance that he had lost three fingers. Of course when the injury is of such nature that the usefulness of the member is totally lost, it could be considered as loss of the member (see the Note below Schedule I). For instance, a crush injury to an arm may not result in amputation or loss of the arm as such, but its usefulness might have been reduced to the minimum. The provisions springs to life in such contingencies and at no other time. Amputation of the palm may reduce the effectiveness of the hand to a great extent but this cannot be justification for, awarding compensation to a greater extent than that is laid down, in the schedule, and as recognised by Statute. The Commissioner is bound to fix compensation with due deference to the Schedule when the injury is a listed one.
9. For the loss of three fingers the Commissioner here has awarded a compensation equal to 80% of the loss of the earning capacity. The appellant argues that it is an error apparent on the face of the record. The schedule prescribes 100% disablement for such injuries in the nature of loss of both eyes, loss, of hand and foot double amputation through leg etc. Amputation from 20.32 cms. from tip of acromion to less that 11.43 cms. below tip of olecranon (item 3 Part II of Schedule I) warrants assessment of loss of earning capacity at 70%. In the above background we are of opinion that assessing 80% disability for loss of three fingers (thumb is intact) is not permitted by the statute, be it a welfare legislation. The Commissioner is also not entitled to take note of the age of the applicant in that context as specific parameters have already been laid down. Compensation is determinable on the basis of index factors supplied by Section 4 of the Act. It may be relevant to point out that the above provisions were brought into the statute by amendment made on July 1, 1994. No person can assert or take shelter under a contention that he is prepared to do only one type of work and by the accident if he becomes unable to do the work ever thereafter, he is to be given 100% compensation. The proceedings permit an enquiry as to whether the victim was capable of doing the works that he was able to do at the time of accident. That he was engaged in a specific work at the time of accident does not mean that at the relevant time he was not capable of attending to a hundred different avocations, if he had to inclination to do them. The larger question to be borne in mind by the Commissioner is as to whether a person by the accident became unwillingly a burden to the community one hundred per cent. Of course, the applicant, after the accident will not be able to compete with another, who is 100% fit. The loss of three fingers will adversely affect him.
But so long as the law prescribes it as 30%, the Commissioner has no further discretion in the matter. His discretion, we would generally observe, could be applied when he fixes compensation for non-scheduled injuries, and then he has also the duty to get assistance from the medical practitioners, who examine the nature and extent of the injury and disability. The approach has to be realistic and never arbitrary.
10. On the disability certified and on the basis of the wages that the applicant was earning at the time of accident and his age, applying the index factor (under Section 4 of the Act) the compensation that legally could have been awarded was Rs. 16,891.50. We fix the compensation as above. The amount will carry interest at 12% from November 5, 1988, the date of accident, till the date of deposit made, viz,, March 5, 1993. In case the deposit carries interest when it is in the custody of the Commissioner, he will be entitled to the proportionate interest till the date of payment. The excess in deposit that has come in view of our present judgment will be paid back to the appellant, with interest admissible, if any.
11. The appeal is disposed of as above. The parties are directed to suffer their costs.