Gujarat High Court
Natwar Singh vs Niranjanbhai Kanti Lal Shah Etc. on 19 November, 1990
Equivalent citations: II(1991)ACC342
JUDGMENT J.N. Bhatt, J.
1. This appeal under Section 30 of the Workmens' Compensation Act, 1923 (hereinafter 'Act' for short), the appellant has assailed the judgment and award passed by the learned Commissioner for Workmen's Compensation ('Commissioner' for short, hereinafter), at Bhavnagar 10.8.1982, in an application for compensation being workman compensation Application No. 10 of 1982.
2. Various interesting points are raised and a multi prolonged attack is also made against the claim of compensation. Therefore, the appeal was heard at a marathon length. Since various significant points are raised and with a view to appreciate the merits of the present appeal and challenge against it, it would be pertinent at this juncture to set out relevant and material facts.
3. The present appellant is the original claimant who preferred an application for compensation for personal injuries sustained by him, under Section 3 of the Act. The claimant made the application for compensation of Rs. 3528/- under Section 3 of the Act and Rs. 1746/- by way of penalty under Section 4-A(3) of the Act with interest and cost against the present respondent, who is the original Opponent-employer. Thus, the present appellant is a workman and the present respondent is an employer, who are hereinafter referred to as the "workman" and "employer" for the sake of convenience and brevity.
4. According to the case of the workman, he was working with Laxmi Textiles, at the relevant point of time. The workman sustained personal injuries in an accident arising out of and in the course of this employment with the employer on 3.12.1981. On the day of the incident, the workman had gone for work at the place of employer in the morning, He performed his duty in the factory of the employer. The employer was running a textile unit, at Bhavnagar. The workman was doing miscellaneous work in the said textile unit of the employer. On the day of the incident, as per the case of the workman, when he was on duty, under the instruction of his master, he had proceeded to mount belt on a water-pump (boring) and while doing so, another employee in the factory, one Pravinbhai, all of a sudden, switched on the motor. Consequently, the motor started and when the workman was mounting the belt, his left hand was injured and his index finger caught and got entangled in the pulley and it was crushed. Subsequently, the said co- worker, Pravinbhai, took the workman immediately to Government Civil Sir T. Hospital, at Bhavnagar for treatment. The workman was examined and treated in the said hospital, at Bhavnagar. Thereafter he was discharged on the same day. However, there was no improvement in the injury. The workman was again admitted in the hospital on 11.12.1981. He remained as an indoor patient upto 13.2.1982. in the hospital and during that period his left hand index finger was operated upon. According to the case of the workman, on account of the said accident, two phalanges of his left hand index finger have become completely useless and he sustained permanent partial disablement to the extent of 14%.Thus, according to the case of the workman, he sustained injuries and resultant permanent partial disablement on account of the accident arising out of and in the course of the employment with opponent/ employer .The workman had served the employer with a notice. The claim made in the notice was not complied. Therefore, the workman preferred an application for compensation under Section 3 of the Act and claimed an amount of Rs. 5292 with interest at the rate of 6 percent per annum from the opponent/employer. That application was preferred on 4.3.1982.
5. Pursuant to the notice issued by the learned Commissioner, at Bhavnagar, the employer appears and resisted the application by filing written objections, at Ex. 9. Employer admitted that the workman was working as his employee at the relevant time on a monthly salary of Rs. 270/- However, he denied that the workman was doing miscellaneous work in his textile unit. The employer pleaded that the workman was engaged as a folder and his duty was to fold the cloth in the factory and he was not supposed to go outside the premises for master's work. According to his contention, the place of accident was outside the premises of the factory and, therefore, he was not liable for payment of compensation. In fact, the accident and resultant injuries were not disputed. However, it was, seriously disputed that the accident had occurred in the course of the employment with the employer. In short, it was contended that the personal injuries sustained by the workman was not a consequence of an accident arising out of and in the course of the employment with the employer. It was further stated that the water pump in question was not owned by the employer and it was outside the premises of the factory. Electricity was also not supplied to the paid water pump from the factory of the employer. The said water pump was owned by the owner of the compound in which the factory of the employer was situated. The employer further contended that the workman was never instructed to mount the belt on the water pump and, therefore, it was not a part of the duty of the workman nor he was instructed to do that work. It was also pleaded that the accident in question took place because of the negligence on the part of the workman. It was denied that the workman had sustained 14% permanent partial disablement. Thus, all the material averments made in the compensation application were seriously traversed and controverted and the entire claim for compensation was seriously challenged by the employer. In view of the facts and circumstances of the case and in view of the pleadings of the parties, the learned Commissioner was pleased to frame issues, at Ex. 10.
The testimonial collection recorded before the Commissioner is enumerated herein-below:
1. Natwarsinh Amarsinh (Applicant himself-witness No. 1)-Ex. 11.
2. Hirji Maruji (Applicant's witness No. 2) Ex. 20.
3. Dr. Vikram Ghenshymalal Parikh (Applicants witness No. 3)-Ex. 22
4. Niranjan Kantilal Shah (Opponent himself)-Ex. 27.
5. Pravinbhai (Opponent's witness No. 2)-Ex. 28.
6. On appreciation of the evidence on record, the learned Commissioner was pleased to find that the workman was working with the employer at the relevant time at the wages of Rs. 270/- per month. He also found that there was an accidental injury sustained by the workman, resulting into permanent partial disablement to the extent of 11%. However, he dismissed the application for compensation on 10.8.1982 on the ground that the workman failed to prove that he had sustained personal injuries by an accident arising out of and in the course of his employment with the employer. Being aggrieved by the said judgment and award, the original applicant/workman has, now come up before this court in this appeal challenging its legality and validity by invoking the aids of Section 30 of the Act.
7. The aforesaid factual background would clearly indicate that the poor workman, who had sustained serious personal injuries, resulting into permanent partial disablement in his left hand, is still waiting for justice even after a period of nine years of an accident. It has been contended on behalf of the workman that the finding of the learned Commissioner that the accident in question had not occurred out of and in the course of his employment is totally erroneous.
8. Following facts may be narrated so as to appreciate the merits of this finding:
(i) That the workman was working as a workman in a textile unit belonging to the employer at the relevant time at a monthly salary of Rs. 270/-.
(ii) The workman had sustained injuries on his left hand index finger while he was mounting belt on a water pump on 3.12.1981.
(iii) The place of accident where the water pump was situated is in a compound near the textile unit of the employer.
(iv) The workman sustained permanent partial disablement in his left hand index and middle fingers.
9. It is contended that the observations of the learned Commissioner in paragraph 6 of the judgment are totally unwarranted. The learned Commissioner reached to the conclusion that the workman sustained injuries outside the factory premises near the water pump and fetching water was not the duty of the workman and, therefore, the accident in question cannot be said to be an accident arising out of and in the course of his employment. This finding is seriously criticised on behalf of the workman. The learned Counsel for the employer has fully supported this finding of the learned Commissioner. Therefore, the important question which arises for adjudication at this juncture is as to whether, in the facts of the present case, the accident in question could be said to have arisen out of and in the course of the employment.
10. No doubt, in order to succeed in application for getting compensation under Section 3 of the Act, the following points are required to be established. In other words, Section 3 of the Act provides that the accident must arise out of and in the course of the workman's employment. The material ingredients and principles underlying the provisions of Section 3, shortly stated, are as follows:
(i) There must be a causal connection between the injury and the accident and the work done in the course of the employment;
(ii) The workman has to show that while doing a part of his duty or incidental thereto, it has resulted into an accident.
It is not necessary that the workman must be actually working at the time of injury or accident. Therefore, three factors are required to be established so as to attract the provisions of Section 3 of the Act.
(i) there must be an injury;
(ii) it must be caused in an accident; and
(iii) it must be caused in the course of and out of an employment.
11. The workman has contended that his duty was to attend miscellaneous work in the factory whereas according to the contention of the employer, the workman was engaged only to attend the work of a folder. The incident occurred at about 10 A.M. on 3.12.1981, near the water pump which was situated in the compound near the textile unit of the employer. Under Section 3(1) of the Act, the injury must be caused to the workman by an accident arising out of and in the course of his employment. The question, when does an employment begin and when does it cease, depends upon the facts of each case. Decidedly the employment does not necessarily end when the 'down tool' signal is given or when the workman leaves the actual workshop where he is working. There is a "notional extension" as both the entry and exit by time and space. The scope of such extension must necessarily depend on the circumstances of a given case. An employment may end or may begin not only when the employee begins to work or leaves his tools but also when he used the means of access and accede to and from the place of employment. A contractual duty or obligation on the part of an employer to use only a particular means of transport extends the area of the field of employment to the course of the said transport. Though, at the initial stage, the word "duty" had been strictly construed the later decisions have liberalised this concept. When an employee uses the means access and accede to and from the place of employment and even also while attending to his usual pursuits, leisure hours, recess time, etc., he is in employment.
12. To come within the Act, the injury by an accident must arise out of and in the course of employment. The words "in the course of employment" means, in the course of work for which the workman is employed to do and which is incidental to it. The words "arising out of duty or employment" are understood to mean that "during the course of the employment or service. In short, there must be a casual relationship between the accident and employment. The expression "arising out of employment" is again not confined to the mere nature of the employment. The expression, undoubtedly, applies to employment such as to its nature, its conditions, its obligations and its incidents. In order to hold the employer liable for the payment of compensation. It is not necessary to show that the injury in question occurred or caused during the actual working hours or while performing actual duties. It is a matter of understanding that a workman, during the course of his duty hours, will have to excuse himself for a while for smoking, for visiting others moving during recess leisure time or for taking a cup of tea or coffee or for drinking water or for easing, etc. for doing or attending normal pursuits of life. Many such normal pursuits of life are required to be done during the course of his duty hours. If a workman sustains injury during such interval, either in the factory premises or near by places while taking a cup of tea or fetching water for drinking or any other reason to satisfying his personal requirements or instincts, could it be said that would not form a part of the period of employment or such an act or activity would be unconnected with the concept of employment ? In other words, can be it contended that the injury sustained during the interval or leisure time in or around the premises of the employer, it would not be characterised as one arising out of and in the course of employment ? The answer to this very simple question is given in negative by the learned commissioner whereas in the facts of the present case and in the light of the catena of judgments, the answer to the aforesaid question ought to be in positive.
13. The learned Counsel Mr. Shah for the employer, has, forcefully, contended that the contention of the workman that he was doing miscellaneous work and that he had gone to fetch water, is rightly not believed by the learned Commissioner. He has, fully supported the finding of the learned commissioner on this score. He pointed out that the accident occurred outside the factory premises, and contended that it was not a part of the duty of the workman to go to the water pump and fetch water. Therefore, it cannot be said that the injury sustained by the workman could be said to have been caused out of and in the course of his employment. In this connection, learned Counsel Mr. Shah for the employer has placed reliance on the decision rendered in the case of M. Mackengie v. I.M. Issak . After having carefully, examined the said decision of the apex court, this court is of the opinion that the said decision is not applicable to the facts of the present case. On the contrary, it is observed in the said decision that it will be open for the Commissioner to infer about the accidental injury or death when the facts proved justify inference. No doubt, it is held in the said decision that the injury by accident must arise both out of and in the course of employment. The words "in the course of the employment" mean "in the course of the work which the workman is employed to do and which is incidental to it" (emphasis supplied). In the present case, it cannot be said that the workman was not a miscellaneous worker. A part from that, it is a matter of common understanding that a labourer is attending, time and again, such work as directed by the master though not initially agreed to be done. In other words, a labourer may attend, at times, to other miscellaneous work, on the command of his master, during the course of employment. It is not like a strict jacket formula that the workman should not be asked to do any other duty nor he would refuse to do it. Even if we take the contention of the employer that the workman was supposed only to do the folding work only, at its face value, even then, in that case also, it cannot be said that the workman was prohibited from doing miscellaneous work like fetching water for drinking for himself and others. Be as it may. Going for drinking water or to washing his face or hand or fetching water for other workers is, undoubtedly, incidental to the work of a labourer. Therefore, the aforesaid decision of the Supreme Court will not be, in any way, helpful to the contention raised by Mr. Shah, learned Counsel for the employer.
14. Learned Counsel for the workman has placed reliance on a decision of the Division Bench of this Court rendered in the case of Bai Chandan v. Godhra Borough Municipality reported in XV, GLR, 376. The decision of the Supreme court in the case of Mackinnon Mackenzie Co. Pvt. Ltd. v. Ibrahim Mohammad Issak , relied on by the learned Counsel for the employer, was considered in the said decision of the Division Bench of this Court. The relevant observations are in paragraph 17, at page 387 of that decision. Paragraph 17 reads as under:
The next question which arises for our consideration is whether the accident with which the deceased Ghanshyam met "arose out of and in the course of his employment" within the meaning of Sub-section (1) of Section 3 of the said Act. The afore said expression has been construed by the Supreme Court in Mackinnon Mackenzie and Co. Private Limited v. Ibrahim Mahommad Isak A.I.R. 1970 Supreme Court 1900. It has been held in that decision that in order to attract the provisions of the Act the accident must be proved to have arisen both out of and in the course of employment. The expression "arising out of employment" suggests, as has been held by the Supreme Court, a causal relationship between the accident and the employment. In other words, the deceased must be shown to have been engaged in doing something which he had been doing at the time of the accident of account of his employment. His employment must be the cause and the actual work in which he was engaged at the time of the accident must be the effect flowing therefrom. If an accident has occurred on account of a risk which is an incident of the employment, the claim for compensation must succeed unless of course the workman has exposed himself to an added peril by his own imprudent act. It has approved the observations of Lord Summer in Lancashire and Yorkshire Rly Co. v. Highley 1971 A.C.352 in which the test which the learned Lord has laid down is as follows:
Was it part of the injured person's employment to hazard, to suffer, or to do that which caused his injury? If the answer is in the affirmative, the accident must be said to have arisen out of his employment. If the answer is in the negative, the accident cannot be said to have arisen out of his employment because it was not a part of the employment to hazard, to suffer, or to do any such thing.
The expression "in the course of his employment" suggests that the accident must have happened during the working hours of the injured workman. These hours may be actually emotionally extended. Relying upon this decision Mr. Vakil has argued that it was not a part of the duty of function of the deceased Ghanshyam who had been working as a gardener or Mali to expose himself, to the hazard of climbing the roof of the town-hall at a time when there was stormy wind and rain.
15. Thus, it is very clear that the said decision of the Supreme Court, relied on by Mr. Shah for the employer, is not helpful to hold that the accident in question had not occurred during the course of the employment. On the contrary, it is found that the expression "in the course of employment" suggests that the accident must have happened during the working hours of the injured workman. However, these hours may be actually or notionally extended. Relying on the said judgment of the Supreme Court, it was contended by the learned Counsel Mr. Shah for the employer that it was not a part of the duty or function of the injured workman, who had gone to the water pump to fetch water and for doing so, mounting the belt on pully. This contention cannot be accepted in the facts of the present case. The workman has to attend to normal pursuits of life in or around the premises of employment and if any untoward incident or any accidental injury occurs, it cannot be said that the said accident has not risen out of his employment. The question which is required to be paused is was it a part of the injured person's employment to hazard, to suffer, or to do any such things which caused injury. If the answer is in the affirmative, the accident must be said to have been arisen out of his employment. Any ordinary labourer is expected ' to carry out his normal pursuits of life during the working hours or leisure time or recess period and if something happens or an accident occurs during that interval, it cannot be said that it was not a part of his duty and, therefore, the said injury was not attributable to the employment. The decision of this Court, rendered in the case of Smt. Jiviben Chana v. Kartan Lakha reported in XXIV (1), GLR, 134, clearly goes to show that if a workman sustains injury or meets with an accident by doing something not during the working hours or during the recess interval or before or after the working hours then also the said injury or accident could be attributed to the employment.
16. Learned Counsel Mr. Padival for the workman, has placed reliance on the said decision rendered by this court. In that case, the deceased was a workman, who was returning after break-fast at the place of his employer. The workman sustained injury on account of serpent bite. It was contended on behalf of the employer in the circumstances of that case that as the workman was returning after breakfast he had sustained serpent bite and, therefore, it cannot be said that the accident had arisen out of and in the course of employment. It was contended in that case that there was no causal and proximate connection between the injury and the employment. This contention was upheld by the learned Commissioner which was reversed in the appeal before this Court. It was held by this court in the said case that as the deceased workman was going to see the truck and at that time serpent bite occurred, this could clearly amount to an accident arising out of and in the course of his employment and it was held that the deceased was in the employment of the opponent of that case and was entitled to claim compensation under Section 3 of the Act. The ratio of the aforesaid decision lands material reinforcement to the contention of the learned Counsel Mr. Padival for the workman. The facts of the present case also squarely attract the ratio of the aforesaid decision of this court.
17. It was next contended by the learned Counsel Mr. Shah for the employer that the injured workman was suffering from diabetes and there is no clear evidence to show that he had sustained permanent partial disablement as alleged solely on account of the injuries sustained by him on the date of the incident. In that, it was contended that the injured workman was examined in Sir T. Hospital, at Bhavnagar, on the day of the incident and was discharged on the same day. Subsequently, he was re-admitted and he was treated as indoor patient. He has also pointed out from the evidence of Dr. Vikram Ghanshyamlal Parikh (Ex. 22) that the workman was suffering from diabetes. It is also admitted by the workman in his evidence that he was suffering from diabetes even on the day of the incident. Relying on the aforesaid facts, it is contended that there was intervening factor and the permanent partial disablement was attributable to the negligence on the part of the workman for not getting the said disease/diabetes under control. This is really an ingenious contention. It appears to be very subtle but not at all sustainable. The learned Counsel Mr. Shah for the employer has also placed reliance on the following Two English decisions:
(1) Jobling v. Associated Dairies Ltd. reported in (1980) 3, All England Law Reports, at page 769, (2) Hogen v. Bentinck West Hertley Collieries (owners) Ltd. reported in (1948) 1, All England Law Reports, at page 129.
18. Having examined the aforesaid two decisions carefully and with full of circumspection, this court is of the clear opinion that they are not applicable to the facts of the present case. In "Jobling v. Associate Dairies Ltd." damagas for personal injury were claimed for an accident which occurred in 1973 and subsequent spinal disease sustained in 1976. In 1973 the injured claimant slipped and fell on the premises of the employer and it was contended that it was caused because of the breach of statutory duty by the employer. The workman sustained a back injury and was thereafter able to do only light work which was frequently interrupted because of the injury. In 1976 he was found to be suffering from a disease of the spine which was not connected with the accident but which rendered him wholly unfit to work. The injured brought an action against the defendant in respect of the 1973 accident and at the trial in 1979 damages were assessed as if the disease (spind) had not supervened. Accordingly, the plaintiff was awarded, inter alia, a sum for loss of earnings based on 50% capacity from 1976, until the date of the trial and for seven years thereafter. The original defendant appealed on the grounds that from 1976 the plaintiff's incapacity to work was due to circumstances wholly unconnected with their tortuous act and that they should not be required to compensate him for it.
19. On the aforesaid facts, in the aforesaid decision, it was held that although it was settled law that where a plaintiff was injured by two successive and independent tortfeasors the liability of the first did not fall to be reduced by reason of the injury done by the second unless that second injury either diminished the disability of the plaintiff or shortened his expectation of life, nevertheless, when an injury caused to a plaintiff by a tort was obliterated by, and submerged in, a greater injury caused by a supervening illness or other non-tortious event, the liability of the tortfeasor ceased. The appeal was, therefore, allowed. Thus, it is explicit that the aforesaid English decision relied on by the learned Counsel Mr. Shah is of no avail to the employer in the present case. It is very clear from the evidence on record in the present case that the workman was suffering from diabetes even at the time when the, unfortunate, accident occurred. There is nothing on record to remotely indicate that the diabetes, in any way, had accelerated or attributed to the disablement sustained by the workman. Even such a contention was also sustained. Therefore, the above-mentioned English decision which is relied on by the learned Counsel Mr. Shah is also of no avail to the employer factually and legally.
20. In "Hogan v. Sentinck West Hartley Collieries (Owners) Ltd.", the workman, who was a coal miner, suffered from a congenial defect, viz., growth in the top joint of his thumb which formed a superfluous thumb besides and in addition to his normal thumb. On account of accident, a was using and fractured the superfluous thumb. The bone was put in a splint and he was paid compensation on the basis of total disability until the date when he was certified fit for light work in the colliery in which he performed. The thumb, however, remained painful and interfered with his work and his own doctor, whom he consulted, sent him to hospital where it was discovered that the fracture had not joined up and an operation was advised ad performed for the removal, not merely of the superfluous bone but also of the normal bone of the thumb at the top joint. On the application made by the workman for compensation on the ground of pain in the stump, the county court Judge accepted the view of medical witnesses that the operation was a proper one to cure the congenital deformity but not to cure the pain consequential to the accident and in that case it was held that the incapacity was due, not to the accident, but to the operation for the deformity which appeared to have been ill-advised. Thus, it was found in that English case that the physical incapacity sustained by the workman was proved not due to accident or original injury but it was due to incompetent medical service in rendering or doing ill-advised surgical operation. Under the circumstance, I am afraid, how, such a decision would help, in any way, the employer in the facts of the present case. There is no such a plea, nor such contention anywhere in the written statement. It appears that such a contention was not even raised before the learned Commissioner. It appears that such contention is raised for the first time. Although the fact that such a contention is raised first time in this appeal, it was examined and considered and in the facts of the case it is found totally without merits and; therefore, it also must fail. (19.11.1990)
21. Learned Counsel for the employer Mr. Shah has also raised a contention that the present appeal does not involve any question of law, much less a substantial question of law. He has drawn the attention of the court to the provisions of Section 30 of the Act. Relying on the said provisions of Section 30 of the Act, it is contended that in the present case there is no substantial question of law and, therefore, the appeal would not be maintainable. In this connection, he has also placed strong reliance on a decision rendered in the case of Sri Chunilal v. Mehta and Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd. . Of course, the said decision is not under the provisions of the workmen's Compensation Act, 1923. However, the principles underlying the provisions of Section 110 and Article 133(1) of the Constitution wherein the construction of question of law was involved in that decision. It is contended, relying on the said decision of the Supreme Court and the provisions of Section 30 of the Act, that whether the accident in question occurred out of and in the course of the employment is a finding of fact, or at the best it is a mixed question of law and facts. It cannot be said to be a mere question of law much less substantial question of law, which would enable this court to examine it.
22. Having examined the facts and the ratio of the said decision of the Supreme Court, this court is unable to subscribe to the said contention of the learned Counsel Mr. Shah for the employer. In the aforesaid decision of the Supreme Court, it was also held that the construction of the managing agency agreement was not only one of law but also it was neither simple nor free from doubt. In the circumstances the High Court was in error in refusing to grant the appellant a certificate under Article 133(1)(a) that the appeal involved a substantial question of law. It is further observed in the said decision that it has to be borne in mind that upon the success or the failure of the contention of the parties, they stood to succeed or fail with respect to their claim for nearly 26 lakhs of rupees. In the said decision, the construction of the managing agency agreement was held to be a question of law. It is also found from the said decision, whether the point in focus is a substantial question of law would depend upon the facts of the case. Here, the question in this appeal is, as to whether the accident occurred out of and in the course of employment and upon which the right of the workman would depend for claiming compensation under Section 3 of the Act. In such a situation, it would be very interesting to see as to whether it would tantamount to substantial question of law enabling this court to exercise the powers under Section 30 of the Act. In this connection, there is a direct Division Bench decision of this Court in the case of Bai Chandan v. Godhra Borough Municipality reported in XV, GLR, 2376. In the said judgment of this court, the question that arose was as to whether the accident in question has arisen out of and in the course of employment or not. It was also required to be decided in that case as to whether the deceased was a workman under the Act. Thus, there was a pointed question for interpretation under Section 30 of the Act. This court held in that case that since the question whether the deceased was a workman or not has to be answered on the facts of this case and in the light of the legal provisions relating to it, the question whether the accident arose out of and in the course of the employment cannot be intermixed, with the question whether the deceased was a workman. In this intermixture of the two questions which had led to the erroneous decision on the part of the Commissioner. It was therefore clearly held that in the circumstances this is a substantial question of law. The facts of the present case also squarely attract the ratio of the aforesaid decision of the Division Bench of this Court and the judgment relied of the Supreme Court relied do by the learned Counsel Mr. Shah for the employer is not applicable in the facts of the present case. Therefore, the contention against the maintainability of the appeal under Section 30 of the Act raised by the learned Counsel for the employer cannot be accepted. Hence it must fail.
23. Next point posed for the consideration is with regard to the quantum of compensation. It may be mentioned that the workman has claimed Rs. 3528/- by way of compensation for personal injuries and Rs. 1764/- by way of penalty. Thus, in all, he has claimed Rs. 5292/- together with interest and cost. He has claimed interest at the rate of 6% per annum from the date of application till realisation.
24. In order to appreciate the aspect of quantification of the damages under the Act, it may be mentioned again that the injured workman, admittedly, was working as a workman at a monthly salary or Rs. 270/- The workmen claimed permanent partial disablement to the extent of 14%. As per the evidence on record, the workman sustained permanent partial disablement to the extent of 11%. The learned Commissioner has also believed that the workman has sustained permanent partial disablement to the extent of 11% in the waking of his left hand i.e., index finger. The workman relied on his evidence, at Ex. 11 and also on the evidence of the orthopaedic surgeon, Dr. Vikram Ghanshyamlal Parikh, at Ex. 22. The medical certificate is produced, at Ex. 24. The workman was examined in the hospital on the day of the incident, i.e., on 3.12.1981, and he was discharged on the same any. But he was re-admitted in Sir T. Hospital at Bhavnagar, on 12.12.1981 and he was operated during the period of Hospitalisation and he was discharged On 13.2.1982. The workman was again examined on 20.4.1982 for the purpose of assessment of disablement percentage. The medical certificate produced at Ex.24 was issued on 20.4.1982. As per the said medical certificate, there was amputation of index finger (left) form middle of middle pnalanx with ackylosis of proximal interphelangeal joint. Mild stiffness of metacarbo phalangeal joint of index and middle finger of left hand. The orthopaedic surgeon has assessed permanent partial disablement to the extent of 11% for index finger and 2% permanent partial disablement for middle finger of the left hand. Thus, in all, the orthopaedic surgeon has assessed 13% permanent partial disablement in the left hand of the workman on account of the aforesaid injuries. However, my attention was drawn by the learned Counsel Mr. Shah for the employer to the evidence of the orthopaedic surgeon Dr. Vikram Parikh, At Ex. 22. He has pointed out that the total disablement percentage would be 9% only and not 11% as initially deposed by Dr. Vikram Parikh. This contention cannot be sustained for the reason that while considering overall evidence of the orthopaedic surgeon, Dr. Vikram Parikh, it is amply clear from the evidence on record that the injured workman has sustained permanent partial disablement to the extent of 11%.
25. Therefore, in the light of permanent partial disablement sustained by the workman, the workman would be entitled to Rs. 2772/- under the provisions of Section 4(1)(c)(i) read with Schedule I, Part II read with Schedule IV of the Act, prevailing at the relevant point of time in 1981. Therefore, the injured workman would be entitled to Rs. 2772/- by way of statutory compensation for having sustained personal injuries out of and in the course of the employment.
Next it leads into the question of the amount of penalty to be awarded under Section 4-A of the Act. Section 4-A reads as under:
4-A. Compensation to be paid when due and penalty for default.-
(1) Compensation under Section 4 shall be paid as soon as it falls due.
(2) In case where the employer does not accept the liability for compensation to the extent claused, he shall be bound to make provisional payment based on the event of liability which he accepts, and, such payment shall be deposited with the Commissioner or made to the workman, as the case may be without prejudice to the right of the workman to make any further claim.
(3) Where any employer is in default in paying the compensation due under this Act within and month from the date it fell due, the Commissioner may direct that, in addition to the amount of the arrears, simple interest at the rate of six per cent per annum on the amount due together with, if in the opinion of the Commissioner there is no justification for the delay, a further sum not exceeding fifty per cent of such amount, shall be recovered from the employer by way of penalty.
26. Relying on the aforesaid provisions of Section 4-A of the Act, learned Counsel Mr. Padival for the workman has forcefully contended that the workman should be awarded full penalty i.e., 50% of the amount of award. As against this, learned Counsel Mr. Shah for the employer has seriously opposed this submission. In that, he has contended that the discretion is given to the commissioner for the grant of penalty for a sum not exceeding 50% of the amount of compensation. According to this contention, in the light of the facts of the present case, there is no fit case to award penalty. However, he has alternatively contended that at the best penalty riot exceeding 5% of the amount of compensation may be granted. He has also placed reliance in the case of Naval Kishore v. Barbashaw B. Cursatiee's Sons (Bombay) Pvt. Ltd. and Ors. reported in Judgment Today (JT) 1987 (1) SC, 530.
27. As against that the learned Counsel for the workman has contended that the said decision of the Supreme Court is not applicable to the facts of the present case. He has also argued that the poor workman has remained without compensation for a long period of more than eight years and looking to the conduct, mode and manner in which the rightful claim of the poor workman for compensation is opposed by the employer, full amount i.e., 50% of the amount of compensation should be awarded by way of penalty. In facts of that case said decision was not applicable.
28. The employer is bound to make payment of compensation within the statutory period after the accident as per the provisions of Section 4-A of the Act. Non-payment of the amount of compensation would necessarily result in not only the employer being liable for penalty but also interest from the date on which the amount has become due and payable, which means, the date of accident, or at the latest, one month thereafter. The rate of interest has also been fixed statutorily which is to be 6 per cent per annum for non payment of compensation by the employer when it fell due.
29. It is apparent from the provisions of Section 4-A(3) of the Act that where any employer is in default in paying the compensation no sooner it fell due, within one month from the date it fell due, the Commissioner may direct that in addition to the amount of compensation, simple interest at the rate of 6 per cent per annum on the amount due together with, if in the opinion of the Commissioner, there is justification for delay, a further sum not exceeding 50% of the said amount, shall be recovered from the employer by way of penalty. In the present case, the employer has defaulted in paying compensation due to the workman under the Act. The accident in question occurred on 3.12.1981. The employer ought to have deposited or paid the amount as per the provisions of the Act latest within a period of one month thereafter. Even a plain reading of the provisions of Section 4-A of the Act indicates that the employer is under an obligation to pay the amount of compensation as soon as it falls due and the compensation shall fall due on the date on which the accident or incident occurs. If the employer fails to do so, the law cast a duty on him to give interest at the rate of 6 per cent per annum, if the Commissioner so directs. The employer who does not pay compensation on the due date when it falls due, can be made liable to pay interest on the amount of compensation because there is a delay in payment of compensation, which the statute requires to pay as soon as it falls due. In fact, there was no any justification on the part of the employer to delay the statutory amount of compensation to be paid to the workman. It is clearly found that the injured was a workman and he sustained personal injuries in an accident arising out of and in the course of employment with the employer. Therefore, it was imperative on the part of the employer to depositor pay full amount as per the statute as compensation. He defaulted in his statutory liability and contested the rightful claim of the workman, which has resulted into delay of about 9 years so far. Having regard to the provisions of Section 4-A(3) of the Act, it is very clear that it is a beneficial provision for the benefit of an employee or workman and having regard to the scheme of the Act, the provisions for payment of interest and penalty have been enacted with a view to deter the employer from taking baseless and unreasonable pleas to avoid rightful payment of compensation to the poor workman, who is a victim of employment injuries, which becomes payable under the Act. In the instant case, the employer remained not only a defaulter but remained indifferent, without any justification for the payment of compensation payable under the Act. This is a most proper case wherein the full amount of penalty i.e., 50% of the amount of compensation, should be inflicted on the employer. Thus, in the opinion of this court, there is full justification in awarding 50% of the amount by way of penalty i.e., Rs. 1386/- Therefore, the workman would be entitled to Rs. 2772/- by way of compensation for personal injuries from the employer. He will be entitled to Rs. 1386/- being 50% amount of the compensation, by way of penalty, from the employer.
30. Lastly it brings into sharp focus the question as to whether the workman should be awarded interests and, if so, from which date. Unfortunately, there is a statutory prescription of rate of interest. Though this court thinks that in a case like one on hand, where the employer has employed all successful missiles to dynamite the original applicant's rightful claim, the Court would be unable to award interest more than 6% per annum due to inhibition in Section 4-A of the Act. It would not be out of place to mention that lesser rate of interest would, at times, tempt the employees masters to delay and defeat the rightful claims payable under the Act. By pocketing or not disbursing such amount. One would be getting very high rate of interest in market. It may be noted that Section 4-A of the Act came to be inserted by way of an amendment by Act No. 8 of 1959. Thus, the interest rate at 6% per annum on the amount of compensation is prescribed in the year 1959. It is a matter of common understanding that the rate of interest of banks and other public institutions has also gone very high. Therefore, this court would have awarded high rate of interest but for inhibition in Section 4-A of the Act prescribing maximum rate of interest at 6% per annum. Be as it may. One thing is very certain that this Court cannot resist the attracting of voice being raised in this behalf that it is over-due to reconsider and revise the rate of interest on the amount of compensation and penalty under Section 4-A(3) of the Act by an appropriate authority. It is hoped that the voice which is raised here will riot be a cry in the wilderness. In view of the present rate of interest of rents and prevailing socio-economic conditions, it is felt that the rate of interest prescribed in Section 4-A(3) of the Act at the rate of 6% per annum needs revision. However, it is for the competent legislature to make provisions for immediate and inadequate relief to the victims of employment accidents and injuries. At times, it is found that big amount of compensation payable under the Act is not paid as and when it fell due for variety of reasons and one of them may be poor rate of interest on the amount of compensation payable under the Act.
31. Since Section 4-A of the Act prescribes maximum rate of interest at the rate of 6 per cent per annum, this Court cannot award more than that. This court is inclined to award maximum rate of interest as prescribed in Section 4-A of the Act on the amount of compensation from the date of accident or incident i.e., 3.12.1981 until its payment. Interest could be awarded from the date of accident, by a bare reading of Section 4-A of the Act. However, this proposition is very well crystalised and settled by the Division Bench decision of this court in the case of Municipal Commissioner, Baroda v. Patel Engineering Company reported in 1976, ACJ, 104.
32. Having decided as to what amount the workman is entitled to by way of compensation and penalty, it would be expedient to issue the following directions for deposits of the amount of award:
(i) The amount of award together with cost and interest and penalty shall be deposited in the office of the Registrar of Gujarat High Court by the employer/respondent within a period of six weeks and the said amount shall be paid to the workman/appellant as follows:
(i) 50% of the aforesaid amount shall be paid by account payee cheque to the workman/appellant:
(ii) Remaining amount i.e., 50% of the amount awarded together with interest, cost and penalty, shall be deposited in a nationalised bank of fixed deposit atleast for a period of five years in the name of the workman/appellant and the appellant/workman shall be entitled to collect the interest which shall accrue due thereon periodically;
(iii) The workman/appellant shall not be entitled to create any charge or encumbrance without the prior approval of the Commissioner for Workman's compensation, at Bhavnagar.
33. In view of the facts and circumstances narrated, hereinbefore, and considering the entire conspectus of testimonial collections and documentary evidence on record, the impugned judgment and award of the commissioner are hereby set aside by allowing this appeal with costs. The original opponent/respondent herein-employer shall pay a sum of Rs. 2772/- by way of compensation to the original applicant/appellant herein-workman with running interest at the rate of 6 per cent per annum from the date of accident, i.e., 3.12.1981 till realisation. The employer shall also be liable to pay and the workman will be entitled to recover a sum of Rs. 1386/- by way of penalty.
34. The original opponent/respondent herein-employer shall deposit the aforesaid amount as directed above. The original applicant/appellant herein-workman will be entitled to withdraw, 50% of the total amount, out of the said deposit, in cash. The remaining 50% amount shall not be paid in case to the appellant but shall be invested in a nationalised bank in fixed deposit for a period of five years and the appellant-workman shall be entitled to interest which shall accrue due thereon periodically. The appellant-workman shall be entitled to create any charge or encumbrance on the said fixed deposit receipt without prior approval of the learned commissioner for workmen's compensation, at Bhavnagar.
35. Before parting with this judgment, it may be mentioned that Civil Judges (Senior Division) who are Ex-officio Commissioners, may note that the proceeding under the Workman's Compensation Act are not strictly governed by the provisions of the Evidence Act and the Commissioner, as such, is not a civil court and needless to mention that they are not bound by technical rules of the Civil Procedure Code. The preamble of the Act that of is high-lighting; the underlying purpose of the Act and it is to make some provision for a workman who is disabled from earning by work. The provisions of the Act are not intended for awarding damages for negligence of the employer. The provisions of the Act are required to the interpreted and construed broadly and liberally in order to affectuate their evident in tent and purpose in the application of the provisions which govern the nature and determination of the injuries for which compensation my be had to the victim. Despite settled proposition of law, in many judgment by this court and judgments of other High Courts, unfortunately the learned Commissioner for Workmen's Compensation, at Bhavnagar, has taken a very technical and pedantic view, which has kept a poor workman waiting for more than nine years for his rightful compensation. Needless to mention that unlike the powers and duties of Civil Judges, the duties and powers of the Commissioner under the Act are quite distinct. In fact, under Section 10-A of the Act, the Commissioner can even act on information received by him from any source regarding fatal accident or any injury and he can call upon the employer to explain as to how and under what circumstances the accident had occurred or death had occurred. He can also ask for the explanation of the employer whether he is liable or not to pay compensation on account of such injuries of death. This clearly goes to show that the learned Commissioner can even act "suo motu". In a very large country like ours, where larger labour population suffers from the vices of illiteracy, poverty and incapability for bringing their rightful claims for adjudication before the Courts of law and to fight out with powerful and strong employers/ masters, the role of the Commissioner assumes different and significant dimensions and he is required to remain vigilant and cautious so as to due that the rightful claim of the employment victim is not affected or defeated.
36. In view of the aforesaid discussion, the appeal stands allowed with costs throughout accordingly.