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Himachal Pradesh High Court · body

2016 DIGILAW 1439 (HP)

Bishan Singh v. State of H. P.

2016-07-20

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. 1. The instant appeal stands directed by the workman against the impugned rendition of the learned Workmen Compensation Commissioner (hereinafter referred to as the Commissioner) whereby the hereinafter extracted reference stood answered by the Workmen Compensation Commissioner:- “1.Whether the petitioner is workmen under Section 2(1) of the Workman Compensation Act? OPP. 2. Whether the petitioner sustained injuries arising out and in the course of employment, as alleged? OPP. 3. Whether the petitioner is entitled for compensation, if so, to what extent and form whom? OPP 4. Whether the petitioner is entitled for the amount of interest and penalty under Section 4-A(3) of the Workmen Compensation Act? OPP. 5. Whether the petitioner is guilty for performing service in a hazardous manner deliberately and avoiding safety measures himself, as alleged. OPR. 6. Relief. whereupon he assessed compensation in the sum as disclosed therein. However, in the impugned award, the learned Commissioner omitted to within the contemplation of Section 4-A(1) of the Workmen’s Compensation Act, 1923 (hereinafter referred to as ‘the Act’) levy penalty upon the employer vis-a-vis the sum of compensation assessed by him vis-a-vis. the workman-appellant. The latter hence stands constrained to prefer an appeal therefrom before this Court for facilitating it to impose penalty upon the employer vis-a-vis the sum of compensation as stands assessed by the learned Commissioner qua the workman for the injuries sustained by him during the course of his rendering employment under his employer. Even though the factum of the manner of computation of compensation by the learned Commissioner stands not contested hereat by either of the contesting parties nonetheless dehors no contest qua the facet aforesaid standing articulated hereat, this Court is yet enjoined to advert to the apposite method besides mechanism contemplated under the Act, for enabling the learned Workmen Commissioner to in consonance therewith arrive at the sum of compensation assessable qua the workman for his standing entailed with a disability in sequel to his attaining injuries during the course of his rendering employment under his employer. The relevant provisions of the Act whereupon reliance is enjoined to be placed by the Commissioner for computing compensation assessable qua the workman qua the disability if any in whatever nature entailed upon his person in sequel to his sustaining injuries during the course of his rendering employment under his employer stand embodied in Section 4 of the Act, provisions whereof stand extracted hereinafter: 1. Subject to the provisions of this Act, the amount of compensation shall be as follows namely :- (a) where death results an amount equal to 2[fifty] per cent of from the injury the monthly wages of the deceased work- man multiplied by the relevant factor; or an amount of 3[Eighty] thousand rupees, whichever is more; (b) where permanent total an amount equal to 4[sixty] per cent of disablement results from the monthly wages of the injured the injury workman multiplied by the relevant factor; or an amount of 5[Ninety] thousand rupees, whichever is more. Explanation 1: For the purposes of clause (a) and clause (b), "relevant factor", in relation to a workman means the factor specified in the second column of Schedule IV against the entry in the first column of that Schedule specifying the number of years which are the same as the completed years of the age of the workman on his last birthday immediately preceding the date on which the compensation fell due; Explanation II: Where the monthly wages of a workman exceed 6[four] thousand rupees, his monthly wages for the purposes of clause (a) and clause (b) shall be deemed to be 6[four] thousand rupees only; (c) where permanent partial disablement results from the injury – (i) in the case of an injury specified in Part II of Schedule I, such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury, and (ii) in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury; Explanation I. - Where more injuries than one are caused by the same accident, the amount of compensation payable under this head shall be aggregated but not so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries; Explanation II. - In assessing the loss of earning capacity for the purposes of sub-clause (ii), the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in relation to different injuries specified in Schedule I; 2. For attracting the aforesaid relevant provision which stand embodied in Clause (c) (ii) of Section 4 of the Act, an advertence to Ext.P-2 also an allusion to Ext.AW-3/1 which with the leave of the Court stood adduced hereat as additional evidence, is imperative. Both exhibits aforesaid respectively depict therein of Fracture L-1 with low I.Q constituting the injuries which befell upon the workman during the course of his performing employment under his employer. Both exhibits aforesaid respectively depict therein of Fracture L-1 with low I.Q constituting the injuries which befell upon the workman during the course of his performing employment under his employer. The injuries aforesaid as manifested in both the exhibits aforesaid remain unspecified in Part-II of Schedule-I. Consequently, with the injuries depicted respectively in Ext.P-2 and Ext.AW-3/1 not occurring in schedule-I rendered its attraction by the learned Commissioner to be inapt rather when the apt provision which holds workability occurs in Clause (c)(ii) of Section 4 of the Act enjoined the disability board concerned which assessed the percentum of disability entailed upon the workman to also on assessment thereof for theirs hence begetting compliance with the mandate of Clause (c)(ii) of Section 4 of the Act provisions whereof constitute the apt statutory method of computation of compensation hereat when Clause (c)(i) of Section 4 of the Act garners no attraction, as evident from the disability entailed upon the person of the workman remaining unspecified in Part II of Schedule 1, to with specificity enunciate therein the percentum of loss of earning capacity standing sequelled viz-a-viz the workman. However, both the aforesaid exhibits are reticent qua the percentum of loss of earning capacity standing encumbered upon the workman in sequel to his standing entailed with a disability as stands respectively portrayed therein. As a corollary, the mandate of Clause (c)(i) of Section 4 of the Act embodying the relevant statutory method to be employed by him for assessing compensation qua the workman gets infracted rendering hence the exhibits aforesaid to be unreadable also concomitantly rendering the rendition of the learned Commissioner to be vitiated, it employing an inapposite mode for computing compensation qua the workman. 3. 3. Though an order of remand is hence warranted for facilitating elicitation of evidence in portrayal of satiation of ingredients of Clause (c)(i) of Section 4 of the Act standing begotten, evidence whereof is amiss in the aforesaid exhibits, for enabling the Commissioner to thereupon employ the relevant statutory mode constituted in clause (c)(i) of Section 4 of the Act, for computing compensation qua the workman, yet for reiteration with his adopting the inapposite statutory mode for computing compensation qua the workman whereupon an order of remand being made upon him is warranted also for an order of remand standing permeated with legal efficacy warrants as its necessary precursor the quashing of the impugned rendition besides the discounting by this Court qua the inappropriate statutory mode employed by him for assessing compensation qua the disability entailed upon the workman in sequel to the injuries standing attained by him during the course of his rendering employment under the employer. Preponderantly, when the apparent beside imminent illegality which upsurges is of the learned Commissioner despite palpably holding/imputing validity qua Ext.P-2 besides palpably with injuries depicted therein not finding reference in Schedule-I nor in Schedule-II whereupon the method of computation of compensation to be employed by him was the one displayed in Clause (c)(ii) of Section 4 of the Act yet his proceeding to adopt the hereinafter inapposite mode for assessing compensation qua the workman, reinforcingly warrants its standing quashed and set-aside. 1. The age of the workmen at the time of accident=40 years. 2. Monthly salary of the workman Rs.4000/- 3. Relevant factor as per Schedule IV of Workmen Compensation Act, 1923=184.17 4. Compensation admissible as per Section 4(b) of the Act. 4000 x 60 x 42 x 184.17 100 100 100 100 4. 1. The age of the workmen at the time of accident=40 years. 2. Monthly salary of the workman Rs.4000/- 3. Relevant factor as per Schedule IV of Workmen Compensation Act, 1923=184.17 4. Compensation admissible as per Section 4(b) of the Act. 4000 x 60 x 42 x 184.17 100 100 100 100 4. Apparently also the method employed by the legislature in Schedule-IV was employable by him for assessing compensation qua the workman only when the statutory ingredient for its workability as embodied in its heading qua its attractability standing reared on the workman suffering evident death or his standing entailed with an evident permanent disablement whereas with both Ext.P-2 and Ext.AW-3/1 not making an apposite reflections therein of the disability incurred by the workman falling within the domain of permanent disablement rather both holding depictions therein of their being likelihood of improvement of the apposite disability also both recommending reassessment after three years of the condition of the workman are reflections which do not garner any conclusion of any permanent disablement standing incurred by the workman in sequel to his suffering injuries during the course of his performing employment under his employer. Since the invocation of Schedule-IV of the Act was arousable only on the workman standing encumbered with permanent disablement or his succumbing to the injuries entailed upon his person whereas when none of the aforesaid statutory ingredients for reasons aforesaid stand satiated, in sequel rendered its attraction to be grossly unwarranted. In aftermath the assessment of compensation by the learned Workmen Commissioner on anvil thereof suffers from his committing a gross illegality also with the workman as displayed by the reply to the petition filed by the employer yet rendering service under his employer wherefrom he is earning wages, constituted the disability entailed upon his person being construable to be not a permanent disability rendering also inefficacious the invocation of Schedule-IV by the learned Commissioner. 5. 5. Consequently, this Court is constrained to remand the matter to the learned Workmen’s Commissioner to after eliciting the requisite evidence from any member of the Medical Board who prepared Ext.P-2 and Ext.AW-3/1, the apposite communications by them qua the percentum of loss of earning capacity enjoined upon the workman in sequel to his standing encumbered with a percentum of disability as stands therebefore testified by them whereupon he shall proceed to assess compensation qua the workman by his employing the method constituted in Clause (c)(ii) of Section 4 of the Act. Also the learned Workmen’s Compensation Commissioner is directed to in accordance with law on the anvil of Section 4-A(1) of the Act levy penalty, if any, imposable upon the employer for his purportedly not defraying compensation to the workman in quick succession to his suffering injuries during the course of his rendering employment under his employer. Records be sent back alongwith Ext.AW-3/1.