Orissa High Court
National Insurance Co. Ltd. vs Bijay Kumar Sahu And Anr. on 19 December, 2001
Equivalent citations: [2002(93)FLR1149], 2002(I)OLR148
Author: Pradipta Ray
Bench: Pradipta Ray
JUDGMENT Pradipta Ray, J.
1. The present appeal is against the judgment and award dated September 19, 1998 passed by the Assistant Labour Commissioner-cum-Commissioner for Workmen's Compensation. Cuttack allowing claim petition registered as W.C. Case No. 424 of 1991.
2. The claimant Sri Bijay Kumar Sahu in W. C. Case No. 424 of 1991 claimed that he was working as one of the coolies in the truck bearing Registration No. OSU 8409 at the time of accident. According to them, on October 8, 1991 the aforesaid truck loaded with morum was coming from Jagatpur side and he along with other coolies was in the said vehicle. Near Chahataghat on the Ring Road, the said truck met with an accident in which he and Ors. sustained injuries. Claimant sustained bilateral fracture of heel-bone and multiple abrasions around his elbow. In his claim case he alleged that the injuries suffered by him caused permanent partial loss of earning capacity.
3. On the basis of the medical evidence and other materials on record, the Commissioner came to the finding that the claimant suffered temporary disablement causing temporary loss of earning capacity and he had fully recovered from the disablement. In view of such finding, the Commissioner awarded compensation for temporary disablement causing temporary loss of earning capacity in accordance with Section 4(l)(d) and Section 4(2) of the Workmen's Compensation Act (hereinafter referred to as 'the Act'). Being aggrieved the Insurance Company has filed the present appeal.
4. It appears from the judgment that the Commissioner reached the following basic findings :
(i) The claimant was a coolie in the truck bearing Registration No. OSU 8409 and thus a workman.
(ii) The truck was involved in an accident causing injuries to the claimant.
(iii) The claimant's monthly wage was Rs. 900/- per month.
(iv) The claimant has been cured of the disablement and his earning capacity has been restored due to treatment.
5. The Commissioner granted compensation in lump sum in lieu of half monthly payments because the maximum period for which half monthly payments could be made had already expired before the date of the judgment and award. Bijay Kumar Sahu was granted compensation for the maximum period i.e. 5 years.
6. Mr. Misra, appearing for the appellant-Insurance Company has submitted that the claimant haying claimed compensation for permanent partial disablement and consequential permanent partial loss of earning capacity, the Commissioner had no authority or jurisdiction to award compensation on the ground of temporary disablement causing temporary loss of earning capacity. According to him, once a claimant claims permanent loss of earning capacity, he debars himself from claiming any amount on the ground of temporary disablement and temporary loss of earning capacity.
7. Mr. Misra has referred to the definitions of partial disablement in the Act and the provisions of Sections. 4(l)(d), 4(2), 6 and 7 of the Act, in support of his contentions. Some of the relevant provisions of the Act are quoted below :
"4. Amount of Compensation.(1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely;
(a) xx xx xx xx
(b) xx xx xx xx
(c) xx xx xx xx
(d) Where temporary disablement, whether total or partial results from the injury : a half monthly payment of the sum equivalent to twenty- five per cent of monthly wages of the workman, to be paid in accordance with the provisions of Sub-section (2).
(2) The half-monthly payment referred to in Cl. (d) of Sub-section (1) shall be payable on the sixteenth day -
(i) from the date of disablement where such disablement lasts for a period of twenty-eights days, or more, or
(ii) after the expiry of a waiting period of three days from the date of disablement where such disablement lasts for a period of less than twenty-eight days: and thereafter half monthly during the disablement or during a period of five years, whichever period is shorter :
Provided that :
(a) there shall be deducted from any lump sum of half- monthly payments to which the workman is entitled the amount of any payment of allowance which the workman has received from the employer by way of compensation during the period of disablement prior to the receipt of such lump sum or of the first half- monthly payment, as the case may be; and
(b) no half-monthly payment shall, in any case, exceed the amount, if any, by which half the amount of the monthly wages of the workman before the accident exceeds half the amount of such wage which he is earning after the accident."
Section. 6 Review - (1) Any half-monthly payment payable under this Act, either under an agreement between the parties or under the orders of a Commissioner, may be reviewed by the Commissioner, on the application either of the employer or of the workman accompanied by the certificate of a qualified medical practitioner that there has been a change in the condition of the workman or, subject to rules made under this Act, on application made without such certificate.
(2) Any half-monthly payment may, on review under this section, subject to the provisions of this Act, be continued, increased, decreased or endeo or if the accident is found to have resulted in permanent disablement, be converted to the lump sum to which the workman is entitled less any amount which, he has already received by way of half-monthly payments.
Section 7. Commutation of half-monthly payment : - Any right to receive half-monthly payments may, by agreement between the parties, or, if the parties cannot agree and the payments have been continued for not less than six months, on the application of either party to the Commission he redeemed by the payment of a lump sum of such amount, as may be agreed to by the parties or determined by the Commissioner, as the case may be."
8. Submission of Mr. Misra that if a claimant claims compensation on the ground of permanent partial disablement, the Commissioner cannot give award for temporary disablement, appears to be unacceptable. It is always open to a Court or adjudicating authority to give relief less than what is claimed, if it is found that the claimant is entitled to such lesser relief. It is also well- settled that a Court can always mould the relief for ends of justice, if such relief is available within the scope of the proceeding. A claim under the provisions of the Workmen's Compensation Act is a claim for compensation and it is for the Commissioner to find out whether materials on record have established any case sufficient for awarding compensation as provided in Section 4 of the aforesaid Act. Half-monthly payment or a lump sum in lieu thereof for temporary disablement is a compensation within the meaning of Section 4 of the Act and awardable by the Commissioner. If the Commissioner finds on the basis of the evidence on record that the claimant has not suffered any permanent disablement but in fact has suffered temporary disablement for a period, he can always award compensation for such temporary disablement. If such power is denied to the Commissioner, it will defeat the very purpose for which a welfare legislation like the Workmen's Compensation Act has been enacted and will amount to denial of justice to an unfortunate poor workman. ,
9. Reference may be made to the decisions of different High Courts which have upheld the jurisdiction and power of the Courts to grant a relief different from what has been prayed for in the original pleading.
Madhya Bharat High Court in Laxman Gopal v. Gangabai, W/o - Sadashiv and Anr. (AIR 1955 Madhya Bharat 138) has held :
"This Court can, under the circumstances of the case, mould the relief according to the facts proved provided the defendant is not taken by surprise and there can be no surprise if the relief granted is consistent with the case raised by the written statement or when a plaintiff suing for a larger relief is given a decree for the smaller relief."
The Bombay High Court in Shingounda Shidgounda v. Ganesh Yeswant and Ors., (AIR 1956 Bombay 243) has observed :
"The Court has jurisdiction to adjust the rights of the parties as ascertained by it and to grant a declaration accordingly, if it is necessary in the ends of justice to do so, and the Court's jurisdiction cannot be restricted because the plaintiff has asked for a more extensive declaration or a declaration in a different form."
The Andhra Pradesh High Court in Pendyala Narasimham v. Pendyala Venkata Narasimha Rao (AIR 1963 Andhra Pradesh 78) has held :
"........even without an amendment in a suit for possession of certain property with sole and exclusive rights therein, a decree for partition could be granted notwithstanding the absence of an alternative prayer provided such a relief would not result in much prejudice or injustice to the other side."
The Madras High Court in Dr. H. T. Vira Reddi v. Kistamma (AIR 1969 Madras 235) has held :
"It may be noted that though originally the petition was founded on the ground of adultery and a divorce was sought, the appellant passed his claim at the appellate stage, though not at the trial stage, for judicial separation. That the petitioner can ask for the lesser relief of judicial separation, though in the first instance divorce was sought, indisputable__"
This Court in Paradip Port Trust v. M/s. Misrilal Mines (Pvt.) Ltd. (1985) (II) OLR 124) has approvingly quoted the following observation of Justice Thayer in Ransom v. City of Pierre (101 Fed. Rep. 665) -
"It is the duty of the Court which till retains the control, of judgment to take such action as would shorten litigation, preserve the rights of both parties and best subserve the ends of justice."
It has been further observed therein by this High Court -
"Even in certain circumstances, the Court can mould the relief or grant the appropriate relief under Order 7, Rule 7 of the Code of Civil Procedure, though there may not be a specific relief claimed therefor."
In Managobinda @ Madhabananda Misra and Ors. v. Brajabandhu: (1986) (II) OLR 299) this Court has again held :.
"The Court has thus inherent power to grant either general relief or other relief which appears to it to be legitimate and proper in any case even though such reliefs have not been specifically asked for."
It is thus consistent view that Courts can always mould reliefs and grant lesser relief than actually prayed for if such relief can be granted within the frame-work of the particular suit or proceeding.
10. Mr. Misra has referred to a decision of the Calcutta High Court in South Bhanora Colliery Equitable Coal Co. Ltd. v. Matai Chamar reported in 1983 LAB. I.C. NOC. 33. The facts of the aforesaid case have not been reported. Even from the head-notes as reported, it is clear that the said decision does not apply to the present case. The headnotes indicate that in the said case compensation by way of a half-monthly payment was awarded, but subsequently the Commissioner converted it into a claim for permanent disablement although no application for review as required under Section 6 of the Act was filed. Section 6 of the Act provides that once half-monthly payment for temporary disablement is awarded, the same can be reviewed by the Commissioner only on an application either by the employer or the workman. Section 6 of the Act applies only when half-monthly payment is being paid either under an agreement between the parties or under an order of the Commissioner. So long as there is no agreement or order to that effect, the question of review does not arise. In any event Section 6 of the Act does not affect the Commissioner's jurisdiction to grant lesser relief.
11. It is well-known that these claim cases usually take considerable time to complete. Present case, for instance took about seven years for disposal by the Commissioner. It is always possible that at the time of filing of the claim case, claimant was under a bona fide impression that the disability and the consequential loss of employment was of permanent nature, but in course of the proceeding he may recover from the disability, regain his capacity to work and claim compensation for temporary disablement and resultant temporary loss of employment. The proceeding is for compensation for loss of income due to disablement suffered in course of employment. Temporary disablement leading to temporary loss of earning capacity is a valid ground for grant of compensation. Accordingly, this Court does not think that there can be any legitimate objection to award of compensation for temporary disablement, although claimant originally prayed for compensation on the ground of permanent disablement and consequential loss of earning capacity.
12. The Workmen's Compensation Act is a welfare legislation. It has been repeatedly pointed out that mere procedural technicalities should not stand in the way of grant of relief to a deserving workman. The plea raised on behalf of the appellant-Insurance Company is in the nature of a procedural technicality.
13. In an appeal under the provisions of the Act only substantial questions of law can be considered. Findings of facts unless perverse should not be interfered with. Commissioner has found that, the claimants suffered temporary disablement. It cannot be said that the finding is without any basis.
14. For the reasons aforesaid this Court does not find any merit in this appeal. Accordingly, the appeal is dismissed.
Registry will take urgent steps to release the amount lying deposited in this Court along with interest accrued thereon in favour of the claimant-Respondent No. 1 in accordance with the prescribed procedure therefor.