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2010 DIGILAW 100 (JK)

Chief Engineer v. Nazir Ahmad Tanga

2010-03-04

GH.HASNAIN MASSODI

body2010
1. The appellants call in question the award dated 28.06.2007, whereby the Commissioner under Workmens Compensation Act arrayed as respondent No. 2 in the appeal has held the respondent No.1 entitled to receive a compensation of Rs.4,44,852/- on account of injuries/ disability suffered during the course of his employment. The appeal has been filed against the following factual backdrop. 2. The respondent No.1 is an employee of Power Development Department (PDD) and posted as Lineman at Dooru. The respondent No.1 on 24.12.2005 while repairing electric transformer at Dooru received electric shock and sustained injuries on his left leg. A first information report of the occurrence was registered on 24.12.2005 itself at local police station. The respondent No.1 was shifted by his colleagues to SKIMS where he was hospitalized and operated upon. The respondent No.1 after getting discharged from the hospital filed a claim petition on 24.06.2006 under Workmens Compensation Act before the Commissioner under the Act/ Assistant Labour Commissioner, Anantnag. 3. The appellant in his objections to the claim petition admitted that the respondent No.1 was an employee of the department but sought to wriggle out of responsibility to pay any compensation on the ground that the respondent No.1 was not posted at the place of occurrence and thus the appellant had not sustained injuries during the course of his employment. In other words the appellants case before the Commissioner under the Act was that the respondent No.1 had on his own gone to a place to repair a transformer, which fell beyond his area / jurisdiction and thus was guilty of negligence. The Commissioner under the Act, having regard to the rival contentions of the parties settled following three issues: "1. Whether the accident has occurred in or out of the employment? 2. Whether he is entitled to any compensation? 3. If so to what extent?" 4. The claimant examined four witnesses, all employees of the appellant to substantiate his claim. The appellants on the other hand did not adduce any evidence to either rebut and controvert the evidence adduced by the respondent No.1 or to substantiate the plea raised in the objections. Whether he is entitled to any compensation? 3. If so to what extent?" 4. The claimant examined four witnesses, all employees of the appellant to substantiate his claim. The appellants on the other hand did not adduce any evidence to either rebut and controvert the evidence adduced by the respondent No.1 or to substantiate the plea raised in the objections. The respondent No.2 after going through the evidence decided issues 1 and 2 in favour of the respondent No.1 and against the appellants and answered issue No.3 by holding the respondent No.1 to be entitled to receive compensation of Rs.4,44,852/- as compensation for the disability suffered by the appellant as a result of the electric shock. 5. The award is impugned on the grounds that the respondent No.2 failed to appreciate that respondent No.1 at the time of accident was posted at Nadoora and not at Dooru where the respondent No.1 had gone to repair the transformer. It is urged that the respondent No.2 ignored to take note of other objections taken before it by the appellant. The award is said to have been not passed in accordance with law governing the subject. It is insisted that the respondent No.2 failed to settle important issues including the issue whether the respondent No.1 was dis-entitled from any compensation as his income was not reduced because the respondent No.1 continued to receive salary from the appellant. That the respondent No.1 was not posted at the place where the accident had taken place is said to have also escaped attention at the time of settlement of issues. The issue regarding failure of the respondent No.2 to issue notice to the appellant and to ask for departmental investigation within the meaning of Rule 33 (A.G. Electric Rules) is also said to have been of pivotal importance and not framed by the Commissioner under the Act. The Commissioner under the Act is said to have exceeded the jurisdiction and without any material on the file rushed to the conclusions and passed the award. 6. Heard. It needs to be pointed out at the threshold that the appeal from order(s) of a Commissioner under the Act including an order awarding compensation enumerated in section 30(1) (a to e) is to lie to the High Court only in case "a substantial question of law is involved in the appeal". 6. Heard. It needs to be pointed out at the threshold that the appeal from order(s) of a Commissioner under the Act including an order awarding compensation enumerated in section 30(1) (a to e) is to lie to the High Court only in case "a substantial question of law is involved in the appeal". Proviso to section 30 of the Act needs to be noticed. It reads as under:- "30. Appeals (1) (a to e.....) ... Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal and, in the case of an order other than an order such as is referred to in clause (b), unless the amount in dispute in the appeal is not less than three hundred rupees:" 7. In the present case no substantial question of law has been formulated in the memo of appeal. However, from an indepth reading of the memo what transpires is that the appellant is aggrieved that the commissioner under the Act, on perusal of the pleading has omitted to settle issues vital to the outcome of the appeal. The matter is accordingly proceeded with on the assumption that fall out of failure to settle the issues, is a substantial question of law involved in the appeal. 8. The respondent No.1 as pointed out has examined four witnesses to substantiate his claim. The four witnesses examined by the respondent No.1 are the officers of the appellant department. The Field Officers deposed before the Commissioner under the Act, that the respondent No.1 was performing his duties when he suffered the electric shock. The witnesses insisted that both Dooru and Nadoora are part of Dooru section of Power Development Department and the respondent No.1 was holding charge of all the transformers installed in his section. The witnesses A. R. Mir and Abdul Majid Itoo, also officials of the Power Development, Department have claimed to have suffered minor injuries in the accident. The testimony of the officers of the Power Development Department working under the appellant was not rebutted or controverted by the appellant. There was no reason for the respondent No.2 to reject the evidence bought on file by respondent No.1 more so when the witnesses examined by respondent No.1 were officers of Power Development Department and their testimony remained un-impeached. The testimony of the officers of the Power Development Department working under the appellant was not rebutted or controverted by the appellant. There was no reason for the respondent No.2 to reject the evidence bought on file by respondent No.1 more so when the witnesses examined by respondent No.1 were officers of Power Development Department and their testimony remained un-impeached. There is thus no merit in the ground urged in the appeal that the award was not based on any evidence. 9. The contention that the respondent No.2 failed to settle material issues is also devoid of any substance. The issue No.1 framed by the respondent No.2 was wide enough to bring within its fold all the aspects of the case pointed in the memo of appeal. The parties were all along well aware of real controversy and cannot be said to have been materially prejudiced even if any issue arising out of the pleadings is held to have been not specifically settled. It is well settled law that failure to frame issues is not fatal to the judgment and proceedings when the parties are aware of the contours of controversy and no prejudice is found to have been caused to the parties due to such failure. There is no specific challenge to the quantum of compensation awarded by the respondent No.2. This apart the respondent No.2 appears to have worked out the amount of compensation awarded to the respondent No.2 having due regard to the medical certificate issued by the doctor of SKIMS bearing No. SKIMS/1719/2006-2007 dated 09.08.2006 wherein the respondent No.1 was said to have suffered 90% disability. The Commissioner under the Act while assessing the compensation is not to have regard only to the remuneration received by the workman from the employer after the accident but also the extent to which the workman is disabled to pursue any other job. So viewed, mere fact that respondent No.1 is getting his salary from the appellant does not dis-entitle the respondent No.1 to get compensation under the Act. So viewed, mere fact that respondent No.1 is getting his salary from the appellant does not dis-entitle the respondent No.1 to get compensation under the Act. In 2009(1) SLJ 127, the Court was called upon to decide whether the lineman of Electric Department fell within the definition of "Workman" and whether in absence of any loss of income he was entitled to the compensation under the Workmens Compensation Act, The Court held that the lineman of the Electric Department fell within the definition of "workman" as defined under Section 2(1)(n) read with Sr. (IX) and (XIX) of the Schedule II of the Act. It was further held that notwithstanding the fact that the workman continued to get full salary from his employer the workman still had right to get compensation under the Workmens Compensation Act. The present case squarely falls within ambit of law laid down in above referred case. The appeal, for the reasons discussed, is devoid of any merit and is accordingly dismissed. Appeal file to go to records. Record be returned.