Punjab-Haryana High Court
Shiv Lal vs Punjab State Electricity Board And Anr. on 9 March, 1989
Equivalent citations: II(1989)ACC78, 1991ACJ443, (1994)IIILLJ657P&H
JUDGMENT G.R. Majithia, J.
1. Appellant Shiv Lal filed a claim petition under the Workmen's Compensation Act (for short the Act) on the ground that while working as a work charge T. Mate under T.L.S.C. Sub-Division, 5 Punjab State Electricity Board, he amputated his left hand thumb and the index ringer while unloading a machine on 30 April 1985, in the course of his employment with T.L.S.C. Sub-Division. The application was rejected on the solitary ground that the claimant had failed to prove that he received injuries in the course of his employment with the respondents.
2. The learned counsel for the appellant has taken exception to the finding recorded by the learned trial judge under issue (1) It was held that the appellant had failed to prove that the injury was sustained by him while on duty. The learned counsel for the appellant placed strong reliance on the testimony of A.W.3, Sri Harbhajan Singh, I.E., T.L.S.C. Sub-Division, Punjab State Electricity Board, Patiala. In examination-in-chief, he stated as under:-
"On 30 April 1985, I was posted as J.E. in T.L.S.C. Division at Malerkotla, again said, I was posted at Patiala but our work was going on in Malerkotla area. I know Shiv Lal, petitioner, and he was working there as work-charge. He was unloading the welding set from a truck and during that course, his thumb of left hand was amputated. He was removed to hospital by me and he remained there".
In cross examination the only relevant question which was put to him was whether the appellant was on leave on 30 April 1985, and the witness replied. "I cannot say that the applicant was on leave or on duty on 30 April 1985." This statement in cross-examination does not nullify the statement of the witness made in exami-nation-in-chief. He was categoric that on 30 April 1985, Shiv Lal unloading the welding set from the truck and in the process his thumb of left hand was amputated. There is nothing to discredit the testimony of this witness. The other evidence brought on record that the claimant was on leave with effect from 30th April 1985 to 8 May 1985, cannot render any assistance to the respondents. It is just possible that after the accident the appellant proceeded on leave since he was hospitalised. There is no positive evidence that the witness was not on duty on 30 April 1985, on the date when the accident took place. The respondents could not prove by positive evidence that the appellant did not join duty on the date of accident. To the contrary the testimony of A.W.3, Harbhajan Singh, who is a responsible official, positively establishes that the claimant was on duty and the injury was suffered during the course of his duty. The finding recorded on issue (1) by the learned trial Judge is reversed and it is held that the appellant received the injury while on duty and in the course of his employment with the respondents.
3. Under issue (2), the learned trial Judge has given a positive finding that the appellant was drawing a salary of Rs. 665 per month as workcharge.
4. Section 4(1)(c)(i) of the Act provides that in the case of an injury specified in Part II of ScheduleI, the workman is entitjed to such percentage of compensation which would have been paid to him in the case of permanent total disablement being the percentage of loss of earning capacity caused by that injury. In Part II of ScheduleI, list of injuries which would be deemed to result in permanent partial disablement has been stated. In this part, the percentage of disablement resulting from various injuries is also stated. At serial No. 5 of the list, it is stated that the loss of thumb results in disablement to the extent of 30 per cent and at serial No. 33, it is that the loss of one phalanx of middle finger results in disablement to the extent of 7 percent. The total loss in earning capacity is thus 37 percent. The learned trial Judge found that the workman was earning a monthly salary of Rs. 665 at the time of the accident. On the date of deposition at the trial, i.e. 26 November 1986, the workman gave his age as 32 years. This portion of his statement was not assailed in cross examination. On the date of the accident, he will be deemed to be of 31 years of age. In Schedule IV, the factors for working out lump sum amounts of compensation in the cases of permanent partial disablement are mentioned. The workman suffered disablement to the extent of 37 percent. His loss in earning capacity will come to Rs. 246.05 per month. Applying the multiplier of 205.95, the workman is entitled to compensation of Rs. 50,676. Under Section 4A(3), if the employer commits default in making payment or the compensation due under this Act within one month from the date it fell due, the Court may in its discretion, in addition to the amount of the arrears, order payment of interest at the rate of 6 percent per annum on the amount due. The Court may, when there is no justification for the delay, impose penalty on the employer which will not exceed 50 percent of the amount of compensation assessed. The learned counsel for the claimant submits that the workman should be allowed the benefits of this provision. I do not, in the circumstances of the present case, impose any penalty for non-payment of the compensation due. However, I direct that the workman shall be entitled to payment of interest at the rate of 6 percent per annum on the amount of compensation from 30 April, 1985, till payment.
5. This appeal is allowed to the extent that the respondent will pay a compensation of Rs. 50,676 with interest at the create of 6 percent per annum from 30 April 1985, till payment. The workman has claimed Rs. 30,510 by way of compensation in the petition. Under the statute the Commissioner has to assess compensation in accordance with the mandatory provisions. The workman having confined his claim to Rs. 30,510 will not disentitle him for the higher compensation as assessed since the duty is cast on the Commissioner. Consequently, the workman is entitled to the compensation as determined above. The compensation has to be paid jointly and severally by the respondents.
No order as to costs.