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Himachal Pradesh High Court · body

2016 DIGILAW 2067 (HP)

Rajinder Kumar v. Mehak Chemicals (P) Ltd.

2016-09-23

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. 1. Petitioner-claimant is in appeal before this Court. He is aggrieved by an order passed on 07.02.2005 by Sub Divisional Officer (Civil), Una exercising the powers of Commissioner under the Workmen Compensation Act, whereby the application for award of compensation on account of injuries he received during the course of employment has been dismissed. 2. In reply to the application, it is denied that the petitioner was shift in-charge or drawing salary as alleged in the petition. He allegedly did not receive any injury during the course of his employment. The application as such, was sought to be dismissed. The insurer, the 3rd respondent has also denied the claim as laid by the petitioner for award of compensation on the ground that neither he nor the employer, respondents No. 1 and 2 have supplied the documents required for processing the claim so laid in terms of insurance policy. The information regarding the petitioner having received injuries was allegedly given by the employer, respondents No. 1 and 2 after two weeks. 3. The rejoinder to the reply filed by the respondents was also filed. The Commissioner below has framed the following issues: 1. Whether the applicant was under the employment of respondent No. 1 and 2 at the relevant time as alleged. .OPA. 2. What was the salary of applicant at the time of accident and at what rate he is entitled. OPA. 3. Whether the applicant suffered injuries during the course of employment as alleged. OPA. 4. Whether the applicant is entitled to any compensation if so to what amount and from whom. ..OPA. 5. Relief. 4. The petitioner in order to prove his claim has examined Dr. Pawan Kumar PW-1, Head Constable Onkar Singh PW-2 and Shri Kaman Singh Thakur, Manager of respondent No. 1 as PW-3. He himself has stepped in the witness box as PW-4. The employer of respondents No. 1 and 2 and the insurer, respondent No. 3, however, have not produced any evidence. 5. Pawan Kumar PW-1, Head Constable Onkar Singh PW-2 and Shri Kaman Singh Thakur, Manager of respondent No. 1 as PW-3. He himself has stepped in the witness box as PW-4. The employer of respondents No. 1 and 2 and the insurer, respondent No. 3, however, have not produced any evidence. 5. The perusal of impugned order reveals that learned Commissioner below while taking into consideration the provisions contained under Section 53 of the Employees State Insurance Act, 1948 and the submissions made on behalf of the insurer, respondent No. 3 in this regard has dismissed the application on the ground of maintainability, irrespective of there being no objection to this effect raised either by the employer or the insurer, respondent No. 3. Even no such issue was also framed. The Commissioner, no doubt, has placed reliance on the judgment of a Division Bench of this Court in Shivalik Steel and Alloys (P) Limited v. Workmen's Compensation Commissioner and others, 2000 ACJ 944 to arrive at a conclusion that Section 53 of the Act ibid disentitles the petitioner from receiving or claiming compensation under the Workmen Compensation Act or any other law for the time being in force. 6. Be it stated that in view of specific and express provisions contained under Section 53 of the Employees State Insurance Act, 1948, a workman of an industrial unit insured under the Employees State Insurance Act in the event of having received injury during the course of employment, is entitled to seek compensation only under the scheme formulated for the workman on the establishment of such industrial unit under the act ibid. However, in order to infer that the industrial unit is covered by a scheme formulated under the act there must be some proof such as the copy of scheme etc., on record. In the case in hand, respondents No. 1 and 2, the employer and the insurer, respondent No. 3 have not raised any plea in this regard during the course of proceedings in the application. It is at the fag end, that too, during the course of arguments, learned counsel representing the insurer seems to have raised the issue of non-maintainability of the application under the Workmen Compensation Act in view of barred under Section 53 of the Employees State Insurance Act. It is at the fag end, that too, during the course of arguments, learned counsel representing the insurer seems to have raised the issue of non-maintainability of the application under the Workmen Compensation Act in view of barred under Section 53 of the Employees State Insurance Act. Learned Commissioner below has believed the plea so raised as gospel truth and without caring to hold any inquiry qua existence of any such scheme, under the Employees Compensation Act for the employees of respondent No. 1, Industrial unit has dismissed the application mechanically and in a cursory manner. Had there been any scheme under the Act formulated by the employer and the contribution being made thereunder, the employer or for that matter, the insurer, respondent No. 3 should have produced the same on record of the application. The poor workman is concerned with the compensation. It is immaterial for him as to whether the same is given under the so called scheme formulated by the employer or under the insurance policy. Therefore, irrespective of the law laid down by our own High Court in Shivalik Steel and Alloys (P) Limited supra, the application could have not been dismissed for the reason that the said judgment is distinguishable on facts. 7. As noticed herein above, it is established on record that the petitioner is a workman within the meaning of Workman Compensation Act. It is admitted so by PW-3, the Manager of respondent No. 1. Not only this but this witness has also admitted that the wages of the petitioner at the relevant time was Rs. 5400/- per month. He received injury on his person during the course of employment also stands established from the testimony of PW-3 and also that of the doctor PW-1. The accident has occurred on 14.04.2000 around 5.45 a.m on account of the injury received by the petitioner on his proximal phalanx middle finger which got fractured and proximal phalanx ring finger left side got burnt. The proximal phalanx middle finger had to be amputated. The disability as per the medical certificate Ext. PW-1/A is to the extent of over left thigh and leg 20% and right knee about 10%. The present, therefore, is a case where the petitioner as workman has received injury during the course of his employment. The proximal phalanx middle finger had to be amputated. The disability as per the medical certificate Ext. PW-1/A is to the extent of over left thigh and leg 20% and right knee about 10%. The present, therefore, is a case where the petitioner as workman has received injury during the course of his employment. The compensation for want of any scheme and for that matter any evidence that the industrial unit of respondent No. 1 was covered under the scheme formulated within the meaning of provisions contained under the Employees State Insurance Act should have not been dismissed and rather processed for the purpose of assessment of compensation. The petitioner workman admittedly was drawing his salary @ Rs. 5400/- per month. The same in terms of Section 44 has to be restricted to Rs. 4,000/- per month. Taking into consideration the disability 20%, the loss of earning capacity would be Rs. 800/- per month. The age of the petitioner workman at the time of accident was 29 years. The relevant factor, therefore, would be 209.92. The total compensation if works out would be Rs. 800 X 209.92 = 1,67,936/- This amount is payable as compensation to the petitioner together with interest @12% per annum from the date of accident till the same is deposited in the Registry of this Court by the insurer i.e. respondent No. 3. Besides, on the amount of Rs. 1,67,936/- the insured, respondent No. 1 who failed to pay the compensation within one month of the accident is liable to penalty i.e. 25% of the award amount Rs. 1,67,936/- which comes to (1,67,936 X 25/100)= 41,984/-. 8. The appeal stands disposed of accordingly, so also the pending applications, if any.