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2002 DIGILAW 298 (JK)

Divisional Manager v. Mohd. Iqbal Bhat

2002-09-16

B.L.BHAT

body2002
This appeal is directed against the award passed by the Commissioner Workmens Compensation Act (Assistant Labour Commissioner) Kishtwar dated 01.11.2001 whereby he came to award Rs. 1,25,500/- as compensation to the respondent-workman. 2. It appears that the respondent approached the Commissioner below under the Workmens Compensation Act (hereinafter referred to as Act ) for grant of compensation alleging therein that during the course of his employment under the appellant-non-applicant, he sustained bodily injuries resulting into his permanent disablement for which he has not been paid compensation by his employer- the appellant. He has further alleged that he was 26 years old at the time of accident and was receiving Rs. 4000/- per month from his employer. 3. The appellant-non-applicant appears to have resisted this petition by filing their objections. The parties went to the trial court with the following issues:- "1. Whether the applicant met with an accident arising out of and during the course of his employment ? OPP 2. If so, what is the extent of disability sustained by the applicant due to the said accident? O.P.P. 3. What were the wages and age of the applicant at the time of accident? OPP 4. Relief." 4. Heard the learned counsel for the parties. The impugned award is assailed by the learned counsel for the appellant on various grounds, but in arguments he has stressed only grounds that the award is based on no evidence by submitting that the medical witness examined by the respondent in support of his case before the Commissioner has made the statement with respect to loss of physical disability of the worker the respondent, which does not necessarily lead to the loss of his earning capacity in the same degree and proportion. With respect to the argument, there is issue No. 2 on the file and it is in fact the finding on this issue which is assailed by the learned counsel for the appellant before this court during the course of discussion. It is pursuant to the application under section 4 of the Workmens Compensation Act filed by the respondent-applicant that while working as Sawyer for the appellant in forest compartment No. 37-Paddar he sustained injuries on his leg and arm when a log fell upon him. The Court below came to award an amount of Rs. 1, 25, 500/- as compensation to the respondent-applicant. The Court below came to award an amount of Rs. 1, 25, 500/- as compensation to the respondent-applicant. The Workmens Compensation Act is a social security legislation and this proverb workman must be interpreted to advance the object of this legislation, it is, therefore, observed that a workman cannot be refused compensation because of the technicalities pointed out in the application for compensation or in the conduct of his case before the Commissioner. Perusal of file as indicated reveals that the respondent in a bid to substantiate his case and to discharge the burden of proof of this issue has examined Zaber Hussain, Ghulam Rasool and Dr.Abdul Majid. In rebuttal appellant has examined Ghulam Nabi as its witness. The respondent-applicant while supporting his case before the Commissioner has deposed that he was working for the appellant/non-applicant in compartment No. 37 as a sawyer on July 27, 998, while working, a log fell upon him as a result of which he sustained injuries on his arm and leg. After this accident he was shifted to Hospital for treatment where his injuries were plastered. Thereafter he used to visit the Hospital off and on for check-up, despite that he could not recover and these injuries have resulted into his permanent disability. He used to earn Rs. 150/- per day as wages. This evidence is corroborated by his witnesses namely Zaber Hussain and Ghulam Rasool who have with one voice deposed that the respondent-applicant was working with them in the compartment No. 37 as Sawyer and while working there he sustained injuries on his arm and leg when a log fell upon him. Their evidence further is that the applicant-respondent was earning Rs. 100/- to 150/- per day as wages. Dr.Abdul Majid has deposed that he has examined respondent-applicant and found that there is malunited supra condylor fracture of right humerus as a result of which there is a loss of gripping power. He has further stated that deformity is partial permanent which amounts to 55 to 60% disability. He has assessed the age of the respondent-applicant as 38 years and has stated that the loss of earning capacity and physical disability of the victim of the accident, the respondent is about 55 to 60%. He has further stated that deformity is partial permanent which amounts to 55 to 60% disability. He has assessed the age of the respondent-applicant as 38 years and has stated that the loss of earning capacity and physical disability of the victim of the accident, the respondent is about 55 to 60%. This being so, the medical witness has corroborated the evidence of the respondent to extent that he has sustained this disability and has assessed the disability of respondent-applicant to the extent of 55 to 60% and has stated that he cannot do Sawyers work. However, he can do a light mannual work with difficulty. The evidence of the appellant/non-applicant also find corroboration from the evidence of non-applicant/appellants witness Ghulam Nabi who has deposed that while working in compartment No. 37 as sawyer, the applicant met with an accident. However, he has deposed that the respondent-applicant was a daily rated worker and his wages were Rs. 50/- to Rs. 60/-per day. Under Section 4(c) (ii) of the Act in assessing compensation in cases of permanent partial disablement what the Court has to see is the fact as to whether the earning capacity of the workman has been reduced in every employment in which he was engaged at the time of accident resulting in the disablement proportionate to the loss of earning capacity as assessed by a qualified Medical Practitioner. In the case in hand as indicated, Dr.Abdul majid whose status as a qualified Medical Practitioner is not challenged by the appellant has assessed bodily disability of the respondent-applicant as 55% to 60% on the basis of that he has sustained a fracture and there is a fracture of his right arm and there is malunited supra condylor fracture of right humerus as a result of which he has lost gripping power and he cannot work as a Sawyer, but can do a light manual work with difficulty. The other witnesses examined by the respondent-applicant namely, Zubar Hussain and Ghulam Rasool have also stated that the applicant while working with the appellant sustained injuries on his arm and leg when a log fell on him. The other witnesses examined by the respondent-applicant namely, Zubar Hussain and Ghulam Rasool have also stated that the applicant while working with the appellant sustained injuries on his arm and leg when a log fell on him. From the evidence of this witness supported by other witnesses of the applicant, it is proved that the respondent while working in forest Compartment No. 37-Paddar, respondent sustained injuries on his arm and leg as a result of which his right arm got fractured and there is a loss of gripping power due to malunion of supra condylor fracture of right humerus as a result of which his body structure got disabled to the extent of 50 to 60% and he cannot do the skilled labour of a Sawyer which he used to do with the appellant because of the loss of gripping power of his right hand. The respondent, of-course, can do a light manual work for which he can under all circumstances get less wages. As indicated- the Medical witness has assessed the physical disability of respondent/applicant to the extent of 55 to 60% and the Commissioner below while recording the impugned judgement/award has not fallen in error in taking into account the evidence of the medical witness in assessing the loss of physical capacity for work of the respondent-workman. The judgement delivered in CIMA No. 170/94 of this court relied by the learned counsel for the appellant is not applicable to this case. The appellant has not assailed quantum of compensation awarded to the applicant by the Commissioner below. 5. Viewed thus the impugned judgement/award does not suffer with any legal error or infirmity, it is in no manner erroneous, therefore, the appeal merits dismissal. Therefore, the appeal is accordingly disallowed at the admission stage. The parties are left to bear their own costs.