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2008 DIGILAW 464 (JK)

Ex. Engineer v. Ab. Jabar Khan

2008-12-02

MOHAMMAD YAQOOB MIR

body2008
1. Respondent no. 1, working as lineman posted in Sub Division, Wagoora, during his duty at receiving station, Putkhah Magam while clearing the fault in the transmission line received an electric shock which resulted in amputation of his right upper limb (arm), filed petition for compensation before the Assistant Commissioner, Labour under Workmens Compensation Act. The proceedings culminated in passing the award dated 23.12.2006 to the tune of Rs. 2,50,320/- as against the claim of Rs. 7.00 lacs. 2. By the medium of this appeal award (judgment) is assailed. Heard. Considered. Admit. 3. With the consensus of the appearing counsel for the parties taken up for final disposal, as three legal points have been raised for adjudication: Firstly, that the respondent no. 1 does not fall within the definition of `workman under the Workmens Compensation Act. Secondly, that the amputation of right upper limb (arm) has not affected the earning capacity of the respondent. Thirdly section 30 of the Workmens Compensation Act hereinafter called as the `Act provides that the appeal cannot lie against any order unless `substantial question of law is involved in the appeal. 4. According to appearing counsel for the appellants, aforesaid legal points are substantial questions of law involved, so appeal is maintainable. 5. The first point as to whether respondent no. 1 being employee falls within the definition of workman is no more res-integra. Sub-section 1 of section 2 clause (n) defines the workman which is to be read with schedule II of the Act Serial (ix) and (xix) of the schedule II reads as under: - "The following persons are workmen within the meaning of section 2 (1) (n) and subject to the provision of that section, that is to say, any person who is- (ix) employed in setting up, maintaining repairing or taling down any telegraph or telephone line or post or any overhead electric line or , cable or standard or fitting and fixtures, for the same, (xix) employed, otherwise than in a clerical capacity, in the generating, transforming transmitting or distribution of electrical energy or in generation or supply of gas." The plain reading of aforesaid section clearly indicates that the lineman falls within the definition of workman. Same view has been taken by the Co-ordinate Bench in the judgment titled Chief Engineer and anr. Vs. Abdul Majid Mir and anr. reported in 2006 (II) SLJ 696. 6. Same view has been taken by the Co-ordinate Bench in the judgment titled Chief Engineer and anr. Vs. Abdul Majid Mir and anr. reported in 2006 (II) SLJ 696. 6. The Second point as highlighted is that the respondent no.1 being the employee of the Electric Department gets full salary and continues to be in the employment. Further more, has been paid Rs. 1.00 lac out of Janta Insurance Scheme and has also been paid Rs. 200/- as conveyance allowance, therefore, respondent no. 1 is not entitled to any compensation. This submission is only to be rejected. The learned Commissioner under the `Act has threadbare discussed the whole controversy issue-wise and thereafter rightly concluded that the amputation of right upper limb (arm), is a permanent disability and such type of disability is covered by clause 3, part-II of schedule 1, as such loss in earning capacity suffered by the petitioner is 70% while relying on the judgments Kerala Minerals and Metals Ltd. Vs. Raman Nair, 1998 ACJ 869 Kerala and Management of Tamil Nadu Cement Corporation Ltd. Vs. N.N. Yayapalan, 1994, ILLJ, 830 Madras. Learned Commissioner has held that even if, there was no loss of earning capacity but still compensation is awardable under the provisions of Workmens Compensation Act. 7. It is an admitted fact that the respondent no. 1 will continue to receive the salary but his capacity of earning otherwise is reduced. He can be of great help in domestic affairs while doing work at home during non-official working hours or holidays. He can do the various works at home but with the amputation of the right upper limb (arm) he could not do anything. The compensation as awardable under Workmens Compensation Act has the welfare object to be achieved. The question is to be answered in affirmative i.e. is not respondent expected to do the agriculture husbandry. The respondent no. 1 being the workman is entitled to the compensation in terms of the `Act and it is in that background the compensation has been assessed and the total amount of Rs. 2,50,320/- has been calculated, rightly so, no interference is warranted. 8. The judgment/award is up held. Appeal is found devoid of merit so is dismissed. The respondent no. 1 being the workman is entitled to the compensation in terms of the `Act and it is in that background the compensation has been assessed and the total amount of Rs. 2,50,320/- has been calculated, rightly so, no interference is warranted. 8. The judgment/award is up held. Appeal is found devoid of merit so is dismissed. The awarded amount which pursuant to order of this court has been deposited vide cheque bearing No. B-489149 dated 04.06.2008 shall be released alongwith interest as may have accrued in favour of respondent no. 1 after proper identification and on proper receipt. 9. Disposed of as above alongwith connected CMP.