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2004 DIGILAW 1064 (AP)

Sikha Subba Rao v. K. Gandhi

2004-09-23

L.NARASIMHA REDDY

body2004
( 1 ) THE Claimant in W. C. No. 108 of 1997, before the Commissioner for Workmen s compensation and Assistant Commissioner of Labour, II Circle, Guntur (for short "the commissioner"), has filed this appeal, assailing the order, dated 17-7-1999, passed by the Commissioner. ( 2 ) THE appellant is employed as a Cleaner with the first respondent, on the lorry bearing no. AHJ 7954. He pleaded that on 27-3-1997, while he was on duty, on the said lorry, he sustained injuries, when the vehicle ran over his right leg, at Guntur, on National Highway no. 5. He claimed that his right leg, below knee, was amputated, and claimed compensation under the provisions of workmen Compensation Act, 1923, (hereinafter referred to as "the Act" ). ( 3 ) THE first respondent remained ex parte. ( 4 ) THE second respondent, insurer of the vehicle, contested the claim. It disputed the employment of the appellant with the first respondent, as well as the allegation that he sustained injuries, during the course of his employment. Before the Commissioner, the appellant examined himself as A. W. 1 and a doctor, who is said to have treated him, as a. W. 2. No evidence was adduced by any of the respondents. The Commissioner awarded a sum of Rs. 79,926/-, as compensation. ( 5 ) LEARNED counsel for the appellant submits that the appellant sustained 100% disability, whereas the Commissioner treated the disability at 50%. He also contends that though the wages of the appellant, at the relevant point of time, was Rs. 1500/- per month, the Commissioner has taken the minimum wages at Rs. 1187/- into account, while fixing the compensation. Placing reliance upon certain judgments rendered by this Court, learned counsel seeks enhancement of the compensation. ( 6 ) LEARNED counsel for the second respondent, on the other hand, submits that the percentage of loss of earnings, is provided for, under Schedule I to the Act, and the commissioner has adopted the same. He also submits that the appellant failed to prove that he was being paid the wages at rs. 1500/- per month, and in the absence of the same, the Commissioner was left with no other alternative, except to take the minimum wages into account. ( 7 ) THE appellant pleaded that he was employed with the first respondent. He also submits that the appellant failed to prove that he was being paid the wages at rs. 1500/- per month, and in the absence of the same, the Commissioner was left with no other alternative, except to take the minimum wages into account. ( 7 ) THE appellant pleaded that he was employed with the first respondent. Though the second respondent disputed this aspect, in the absence of any denial by the first respondent, the relationship of "employer" and "employee" between the appellant and the first respondent, has tobe taken as proved. The occurrence of accident was also not seriously in dispute. The controversy was much about the quantum of compensation. ( 8 ) SECTION 4 read with Schedules I and IV of the Act, stipulate the parameters for determination of compensation. Section 2 (g) defines the expression partial disablement and Section 2 (I)defines total disablement . The percentage of loss of earning capacity, vis-a-vis, the nature of injury received by a workman is stipulated under Schedule I. While Part I thereof, deals with permanent total disablement , Part II deals with permanent partial disablement . The extent of loss of earning capacity indicated thereon is presumptive. If the workman is able to plead and prove that the impact of injury received by him on his working, or earning capacity, is much more than the one stipulated under Part II of Schedule I of the act, he would be entitled to be awarded the compensation, proportionate to or commensurate with the extent of disability so proved. Section 4 of the Act provides for the same. In fact, the definitions of partial disablement and total disablement , under the respective provisions make this aspect very clear. ( 9 ) THE appellant pleaded that his right leg was amputated below the knee level. This injury finds place at Serial No. 21 in Part II of schedule I. The percentage of loss of earning capacity on account of this injury is fixed at 50%. A. W. 2, who is said to have treated the appellant, has certified the disability of the appellant at 45%. No other evidence was adduced. This injury finds place at Serial No. 21 in Part II of schedule I. The percentage of loss of earning capacity on account of this injury is fixed at 50%. A. W. 2, who is said to have treated the appellant, has certified the disability of the appellant at 45%. No other evidence was adduced. Therefore, the Commissioner has treated the disability at 50%, obviously, based on Part II of Schedule I. As observed earlier, it was open to the appellant to lead evidence to establish that the effect of the injury received by him, has resulted in loss of earning capacity over above 50%. For this purpose, he ought to have examined a person conversant with the requirements of the post of a Cleaner and the extent of his (appellant s) incapacity to discharge the functions of that post. It was only, if such an exercise was undertaken, that the Commissioner would have been in a position to consider the feasibility of treating the disability of the appellant, over and above 50%. Since such an exercise was not undertaken, no exception can be taken to the extent of disability, determined by the Commissioner. ( 10 ) THE age factor is taken care of, by schedule IV, and there is no element of subjectivity in it. So far as the other factor i. e. , wage, is concerned, the appellant clearly stated that he was being paid the salary of rs. 1500/- per month. The contention of the second respondent that the appellant failed to prove his assertion, would have gained acceptability, if there was any denial by the employer, namely, the first respondent. As observed earlier, the first respondent has remained ex parte. The necessity to adjudicate upon an issue would arise, only when there is a denial, by the other party. Strictly speaking, the Commissioner ought to have taken the wages, as pleaded by the appellant. He has chosen to adopt the minimum wages prescribed for the post. It is well known and well settled that minimum wages represent the wages, prescribed by the Government, for a particular post. An employer is under an obligation, to pay at least that amount for the type of category of employment concerned. It does not mean that the minimum wages alone, are payable to an employee. Depending on the skill of a worker, capacity of employer, nature of work entrusted etc. An employer is under an obligation, to pay at least that amount for the type of category of employment concerned. It does not mean that the minimum wages alone, are payable to an employee. Depending on the skill of a worker, capacity of employer, nature of work entrusted etc. , an employer may chose to pay over and above the minimum wages. Therefore, the Commissioner was not justified in adopting the salary of the appellant, at minimum of the wages. Having regard to the fact that the assertion of the appellant, that he was being paid rs. 1500/- per month was not disputed by his employer, the wages can safely be taken at Rs. l400/-per month, Except to this extent, this Court does not find any error or basis to interfere with the order under appeal, ( 11 ) HENCE the C. M. A. is partly allowed, directing that the compensation payable to the appellant, shall be calculated by taking his wages at Rs, 1400/- per month. The difference resulting out of such calculation shall be paid with 9% interest per annum from 17-7-1999. In all other respects, the order under appeal holds good. There shall be no order as to the costs.