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2010 DIGILAW 230 (JK)

Divisional Manager, J&K SFC v. Ab. Majid

2010-04-30

GH.HASNAIN MASSODI

body2010
1. This appeal is directed against the award made by Commissioner under Workmans Compensation Act, (Assistant Labour Commissioner Udhampur) in file No. IWE/2002-1 whereby Commissioner under the Act, assessed an amount of Rs. 1,46,772/- as compensation for the disablement suffered by respondent No. 1 /workman due to an accident. In the course of his employment and also directed payment of interest at the rate of 6% per anum from the date the accident took place till compensation assessed was paid. The back ground facts are as under:- 2. The respondent No. 1 on 16.1.2002 filed claim petition under Workmans Compensation Act, before the Commissioner under the Act, pleading therein that on 1.11.2000 at about 11 A.M. respondent No. 1/claimant under the employment of respondent No. 5 in the claim petition, was hit from behind by a sleeper resulting in serious injury to his left elbow. The respondent No. 1 /claimant insisted that the accident took place during course of employment and the respondent No. 1/claimant was thus entitled to claim compensation from his employers i.e. respondents 1 to 4 in the claim petition. It was pleaded that respondent No. 1 /claimant was of 32 years of age at the time of accident, getting monthly wages of Rs. 4500/- and that the accident had left the respondent No. 1/claimant with 30% permanent disablement. 3. The appellants initially avoided to submit any reply but later on 18.5.2004 filed objections /written statement insisting therein that no accident of the nature alleged in the claim petition took place and that at least they were not notified of any such accident by the respondent No.1/claimant or the respondent No. 5 in the claim petition. The appellants/respondent 1 to 4 in the claim petition further pleaded that unless and until it was proved that the respondent No. 1 was employed by the respondent No. 5 in the claim petition, the appellants /respondents 1 to 4 were not liable to pay any compensation to the respondent No. 1. The Commissioner under the Act, on going through the pleadings framed the following issues:- 1. Whether the injured workman Abdul Majid met with non-fatal accident on 1.1.2000 at 1 A.M. during and in the course of employment of respondents No. 1,2,3,4, and 5 O.P.P.? 2. What was the age of the injured workman at the time of accident on 1.1.2000? O.P.P.? 3. Whether the injured workman Abdul Majid met with non-fatal accident on 1.1.2000 at 1 A.M. during and in the course of employment of respondents No. 1,2,3,4, and 5 O.P.P.? 2. What was the age of the injured workman at the time of accident on 1.1.2000? O.P.P.? 3. What was the wages of the injured workman at the time of accident? O.P.P. 4. Whether any relief was given by the respondents at the time of accident?. 4. The parties lead their evidence. The witness examined by the respondent No.1/claimant included Dr. Naresh Chopra Orthopedic Surgeon District Hospital Udhampur who was part of the medical team that examined the respondent No.1 /claimant and certified that the respondent No.1 /claimant had suffered 30% permanent disablement. The lone witness examined by the respondents namely Mohammad Ayoub Wani while expressing his inability to lay hands on the record of the labourers maintained by the contractor (respondent no. 5), who procured labour for the Corporation admitted that the respondent No1 /claimant was brought in an injured condition by his fellow labourers to the residence of the witness and reported to have been injured in the Compartment where some work of the Corporation was in progress. The witness even admitted to have prepared a report regarding occurrence for perusal of the officers of the Corporation. 5. The Commissioner under the Act, after going through the petition, written statement filed by the respondents 1 to 4 and also evidence adduced by the parties arrived at the conclusion that the respondent No. 1/claimant was engaged as a labour by the respondent No. 5 in the claim petition and that the respondent No. 1 /claimant met an accident during the course of employment. The Commissioner under the Act, arrived at the conclusion that the respondent No. 1 /claimant would get wages amounting to Rs. 4500/- per month; and that the respondent No. 1/claimant was of the age of 32 years at the time of accident. The Commissioner under the Act, also found that the respondent No. 1/claimant had suffered 30% permanent disablement. The Commissioner under the Act, instead of Rs, 4500/- claimed wages of the respondent No. 1/claimant though the same having been gone un-rebutted, decided to take Rs. 4000/- per month as the wages of the respondent No. 1/claimant. The Commissioner under the Act, thereafter proceeded to assess Rs. 1,46,772/- as compensation payable to the claimant/ respondent No. 1. The Commissioner under the Act, instead of Rs, 4500/- claimed wages of the respondent No. 1/claimant though the same having been gone un-rebutted, decided to take Rs. 4000/- per month as the wages of the respondent No. 1/claimant. The Commissioner under the Act, thereafter proceeded to assess Rs. 1,46,772/- as compensation payable to the claimant/ respondent No. 1. The award impugned in the appeal was accordingly passed. IV The legality of the award is questioned on the grounds that the notice of accident was not given to the respondents as required under the Workmans compensation Act; that the award has been made in violation of Section 4,5, and 10 of the Act, and that the award is silent on the criteria followed by the Commissioner under the Act, while assessing the compensation. The Commissioner under the Act, according to the parties ought not to have placed reliance on the statement of the doctor which is labeled as unrealistic, unreliable, and inadmissible. The award is assailed as one against the law and to be self contradictory. 6. Heard and perused. 7. The threshold arguments of the Learned Counsel for the appellant is that the award is liable to be set aside as the respondent No. 1 as also respondent No. 2 (respondent no. 5 to the appeal) failed to give notice of the accident to the appellants required to be served under the Act, the argument is belied by the record. The only witness examined by the appellants to substantiate their stand has admitted that the respondent No. 1/claimant was brought in an injured condition by other labourers to his residence and the witness was informed by the labourers that the respondent No. 1/claimant had suffered an accident in Compartment No. 16 range "Dudo" while engaged in extraction of timber for the appellant Corporation. Once the local Supervisor of the appellant Corporation was made aware of the accident there was no further requirement under the Act, to transmit information regarding accident to any other officer of the appellant Corporation. The witness examined by the appellants has further admitted to have prepared a report regarding the accident and forwarded the same to his officers. It is pertinent to mention here that none of the factual averments made by the respondent No.1/claimant before the Commissioner under the Act, has been expressly and specifically denied. The witness examined by the appellants has further admitted to have prepared a report regarding the accident and forwarded the same to his officers. It is pertinent to mention here that none of the factual averments made by the respondent No.1/claimant before the Commissioner under the Act, has been expressly and specifically denied. The written statement filed by the appellants to the claim petition is evasive without any specific response to the averments made in the claim petition. The appellants /respondents 1 to 4 have taken stand before the Commissioner under the Act, that it was for the respondent No. 1 /claimant to prove he had been employed by the respondent No. 2 (respondent 5 to the claim petition) to work for the appellant Corporation. The respondent No. 2 /respondent No. 5 in the claim petition has not filed any response /reply to the claim petition either one of denial of his having employed respondent No.1/claimant in Compartment No. 16 range Dodu. The appellants /respondents 1 to 4 in the claim petition have not in their written statement denied that the respondent No. 2 /respondent No. 5 in the claim petition was not engaged by them as a contractor for procurement of Labour to extract timber from the Compartment. The Commissioner under the Act, thus was justified not only in holding that the respondent No. 1/claimant had fallen victim to accident resulting in injury to his left elbow during course of his employment; that the monthly wages of the respondent No. 1/claimant were Rs. 4000/- and that the respondent No. 1/claimant was of 32 years of age at the time of accident. The plea put forth by the appellants /respondents 1 to 4 that the statement of the doctor should not have been given any credence is without any merit. The appellants /respondents 1 to 4 have subjected the doctor to thorough cross examine and the doctor has stuck to the stand that the respondent No. 1/claimant suffered 30% permanent disablement. The appellants /respondents 1 to 4, did not bother to adduce any evidence in re-buttal and by their mere saying that the doctors statement must be brushed aside being in opinion of the appellants/respondents 1 to 4, unrealistic, unreliable, inadmissible and against the jurisprudence, must not lead the court to ignore the evidence produced by the respondent/claimant to prove his case. It may be pointed out that it was not only doctor Naresh Chopra Orthopedic Surgeon, District Hospital Udhampur, who examined the respondent No. 1 /claimant at district hospital Udhampur, but a team of doctors/medical board comprising of Dr. M.L. Gupta Physician Specialist, Dr. R.K. Guryali Surgeon Specialist and Dr. Naresh Chopra Orthopedic Surgeon who examined the respondent No.1/claimant at the District Hospital Udhampure and issued medical certificate which reads as under:- 8. Certified that Abdul Majid Son of Abdullah Wani Resident of Marmote Doda Aged 32 Years is suffering from neglected post dislocation left elbow with Myosites ossificaes as examined on 22.12.2001. His range of motion is severely limited and painful. He is orthopedically handicapped and his physical disability amounts to approx.30% (thirty percent) and it is permanent. 9. There being no evidence in rebuttal and the appellants/respondent No. 1 and 4 in the claim petition having failed to make cracks in the testimony of Dr. Naresh Chopra, the Commissioner under the Act, was justified in opining that the respondent No. 1/claimant was Orthopedically handicapped and his physical disablement amounted to 30% and that such disability was permanent in nature. The permanent disability suffered by the respondent No. 1/claimant is certified by the Medical Board to have severally limited range of motion of the left hand of the respondent No. 1 /claimant and made him Orthopedically handicapped. The Commissioner under the Act, took note of the Section 4 of the Act, and has determined the quantum of compensation in light of the provisions of the Act, governing determination of amount of compensation. The Commissioner under the Act, appears to have been alive to the mandate of law that the monthly wages of the respondent No. 1/claimant were to be taken as Rs. 4,000/- only. There is no reason to find fault with the quantum of compensation assessed by the Commissioner under the Act, Only because the Commissioner under the Act, has not in so many words spelt out the principles to be followed in determining the compensation and has been less elaborate must not persuade the Appellate Court to rob the Workmans Compensation Act, of the object intended to be attained by the law makers. The Workmans compensation Act, it needs no emphasis like other labour legislation is a welfare law and calls for purposive and liberal interpretation. The Workmans compensation Act, it needs no emphasis like other labour legislation is a welfare law and calls for purposive and liberal interpretation. The appellants after frittering away all opportunities to contest the clam before the Commissioner under the Act, and exhibiting an attitude of apathy and indifference cannot be allowed to cover-up their lapses in an appeal, on meritless grounds. 10. Viewed thus, the appeal being bereft of any merit is hereby dismissed. The record be returned and appeal file consigned to records.