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2018 DIGILAW 1246 (GAU)

Lalchhuanawma v. State of Mizoram

2018-08-23

NELSON SAILO

body2018
JUDGMENT : NELSON SAILO, J. 1. Heard Mr. Zochhuana, learned counsel appearing for the appellant and Mr. Rosangzuala Ralte, learned Govt. Advocate appearing for the State respondents. 2. This is an appeal against the Judgment & Award dated 12.04.2018, passed by the Commissioner, Employees Compensation, Aizawl in W.C. No. 15/2016, dismissing the claim of the appellant. 3. The appeal was admitted on 13.6.2018 and the following substantial questions of law were formulated:- "1. Whether an "Employee" who is covered by the Employee's Compensation Act, 1923 and who suffered Permanent disablement due to the injuries sustained by him in the course of his employment can be denied compensation under the Act because his medical bills for the treatments of the injuries suffered by him have been paid for and because he has been engaged in another employment subsequent to the accident? 2. Whether an "Employee" within the meaning of the Employee's Compensation Act, 1923 who sustained Permanent disablement due to the injuries sustained by him in the course of his employment can be denied compensation for reasons besides the exemptions provided under the Act." 4. In order to appreciate the case of the appellant, brief facts of the case may be noticed at the outset. The appellant was appointed as Driver (Grade-Ill) in the Pay Scale of Rs. 5,830 + GP Rs. 1900 with effect from the date of joining vide office order dated 16.04.2012. The appointment order was made co-terminus with default of one Sh. R. Lalpianmawia, Deputy Government Chief Whip. On 28.03.2015 while the appellant was driving a Bolero vehicle, bearing registration No. MZ01/K-4834 belonging to the State respondents carrying Sh. R. Lalpianmawia, MLA and members of the Government Assurance Committee, militants belonging to the HPC (D) launched an ambush upon them as they were proceeding towards Zokhawthiang from Sakawrdai. In the ambush, the appellant sustained bullet injury on his right lower thigh. He was sent for medical examination on 09.04.2015 in the Civil Hospital at Aizawl. As per the medical report, the nature of injury sustained by him was grievous i.e., fracture of femur due to gun shot. The appellant was admitted in the hospital, w.e.f. 20.5.2015 and he was discharged on 11.06.2015. As a result of the injury, the appellant was issued a disability certificate by the Board of Medical Examination, Aizawl, Mizoram and the percentage of his disability was declared as 40%. The appellant was admitted in the hospital, w.e.f. 20.5.2015 and he was discharged on 11.06.2015. As a result of the injury, the appellant was issued a disability certificate by the Board of Medical Examination, Aizawl, Mizoram and the percentage of his disability was declared as 40%. Consequently, the appellant filed a claim application before the Commissioner, Employees Compensation, Aizawl wherein, WC No. 15/2016 was registered against his claim, in his claim application, the appellant on account of the injury sustained by him claimed a sum of Rs. 37,66,896/- with interest @ 12% from the date of the incident i.e., 28.03.2015 till full payment is made to him. Alongwith his claim application, the appellant annexed his Medical Certificate, Disability Certificate, Birth Certificate, Police Report, Last Pay Certificate etc., in support of his claim. 5. Against the claim, the respondents as opposite parties filed their written statement contending inter alia that a total sum of Rs. 1,79,610/- was sanctioned towards the expenses incurred by the appellant and that the appellant was also appointed to a Grade-IV post under the Secretariat Administration Department against the reservation made for persons with disability vide office vide order 21.12.2015 and since then, he had joined the post. Furthermore, the assessment made by the Medical Board can only be regarded as a temporary disability, inasmuch as, a remark was given that the appellant was likely to improve and an assessment be made after a period of 6(six) months. Under such circumstances, the appellant was therefore not entitled to any compensation from the respondents. 6. The appellant in order to establish his claim examined 2 witnesses including himself while the respondents examined 1 witness in their defence. Consequently, the Commissioner vide the impugned Judgment & Award dated 12.04.2018 dismissed the claim of the appellant. 7. Assailing the impugned Judgment Award, Mr. Zochhuana learned counsel for the appellant submits that the Commissioner while deciding the claim framed as many as 4 issues. The first 2 issues were decided in favour of the appellant. The Commissioner in deciding the same came to a finding that the appellant was a workman as defined under the Employees Compensation Act, 1923 (The Act) and that the accident occurred in the course of performing his duty. The first 2 issues were decided in favour of the appellant. The Commissioner in deciding the same came to a finding that the appellant was a workman as defined under the Employees Compensation Act, 1923 (The Act) and that the accident occurred in the course of performing his duty. However, in so far as the liability of the respondents in compensating the appellant for the accident as was dealt with in the subsequent 2 issues framed by the Commissioner, the Commissioner was of the view that since the appellant secured employment and that all his medical bills were taken care of by the respondents, he was not entitled to any compensation from the respondents. 8. Mr. Zochhuana, learned counsel submits that the finding of the Commissioner cannot be sustained, inasmuch as, the appellant is a workman as defined under the Act and has the right to be compensated for the injury sustained while performing his duty. Merely because the medical bills were paid by the respondents, the same will not disentitle the appellant from claiming compensation under the Act. By referring to Sub-Section (2-A) of Section 4 of the Act, he submits that in addition to the compensation entitled to an employee, the actual medical expenditure incurred by him for treatment of injuries sustained during the course of his employment is to be reimbursed. The said entitlement is besides the compensation awarded by the Commissioner other than towards medical expense. In the instant case, since the medical expense has been paid by the respondents, the appellant will be entitled to compensation in terms of the Act, less the medical bills. Therefore, the finding and the impugned decision of the Commissioner is misconceived and therefore, should be set aside. The learned counsel further submits that in addition to the compensation entitled to the appellant, the respondents are also liable to pay the appellant a penalty for default in paying him compensation under the provisions of Section 4-A of the Act. He submits that as per the aforesaid provision, compensation will be due to the appellant with effect from the date of the accident i.e., 28.03.2015 and failure to pay such compensation will attract a penalty in terms of Section 4-A of the Act. To support his submission, Mr. Zochhuana has placed his reliance upon the following decision rendered by the Apex Court:- (i) Praveenbhai S. Khambhayata Vs. To support his submission, Mr. Zochhuana has placed his reliance upon the following decision rendered by the Apex Court:- (i) Praveenbhai S. Khambhayata Vs. United India Insurance Company Ltd. & Ors., 2015 Legal Eagle (SC) 283. (ii) Pratap Narain Singh Deo Vs. Srinivas Sabata & Ors., reported in 1976 (1) SCC 289 . 9. Mr. Zochhuana, learned counsel further submits that the appellant being appointed to another post after the accident occurred cannot be the ground to dismiss his claim for compensation. He submits that the Medical Board concerned after carefully examining his condition had duly certified that he was 40% disabled. After suffering such injury, the appellant is not able to carry out the normal function and activity, which he could do prior to the accident. Therefore, the Commissioner could not have dismissed the claim of the appellant on the ground that the appellant secured employment after the accident. Thus, he submits that under the facts and circumstances, the impugned judgment & award should be set aside and the appellant be awarded compensation as per Section 4 of the Act along with a penalty as per Section 4-A of the Act. 10. Mr. Rosangzuala Ralte, the learned Govt. Advocate appearing for the respondents submits that the impugned Judgment & Award was rightly passed by the Commissioner and the same calls for no interference. He submits that all the medical bills of the appellant was paid by the respondents and furthermore, he was given an employment under the Secretariat Administration Department in a Grade-IV post and therefore, the appellant did not sustain any loss on account of the accident. His appointment as Driver initially was only co-terminus with the MLA concerned and therefore, the same cannot be the basis to calculate his monthly emoluments for granting him compensation under the Act. He further submits that the earlier appointment was temporary in nature while the present employment under the Secretariat Administration Department is a regular post under the reservation made for persons with disability. The appellant therefore has not sustained any loss of earning warranting award of compensation to him as per the Act. The learned Govt. He further submits that the earlier appointment was temporary in nature while the present employment under the Secretariat Administration Department is a regular post under the reservation made for persons with disability. The appellant therefore has not sustained any loss of earning warranting award of compensation to him as per the Act. The learned Govt. Advocate by referring to the disability certificate issued to the appellant by the Medical Board submits that the condition of the appellant was found likely to improve in future and that is why a recommendation was made that an assessment of his case be done after a period of 6(six) months. Therefore, he submits that the disability itself shows the progressive nature of the health of the appellant and therefore, the Commissioner rightly did not consider the disability certificate issued on 26.05.2015 when it passed the judgment & award on 12.04.2018. He submits that admittedly, the appellant is gainfully employed under the Secretariat Administration Department since his appointment vide order dated 21.12.2015 and therefore, the question of payment of compensation to him does not arise. The appellant on being appointed as a Grade-IV employee is given all the benefits of a Government employee and therefore, the judgment & award be upheld by this Court and the appeal be dismissed. 11. I have considered the submissions made by the learned counsels for the rival parties and I have perused the materials available on record, including the LCR that was requisitioned from the Commissioner. 12. The proviso to Section 30 of the Act provides that an appeal shall not lie against any order of the Commissioner unless substantial questions of law are involved. As may be noticed in the present appeal, 2(two) substantial questions of law were formulated on 13.06.2018. Therefore, the 2(two) formulated substantial question of law will now be adverted to. 13. Coming to the first substantial questions of law, it may be noticed that as per sub-section (2-A) of Section 4 of the Act, the employee in addition to the amount of compensation entitled to him under the Act is also entitled to reimbursement of the actual medical expenses incurred by him for the injury sustained during the course of his employment. The Commissioner while adjudicating upon the claim of the appellant had framed 4(four) issues. The Commissioner while adjudicating upon the claim of the appellant had framed 4(four) issues. The first issue was whether the appellant is a workman within the meaning of the Act and the second issue was whether the accident occurred out of or during the course of his employment. The 2(two) issues as may be noticed were decided in favour of the appellant and therefore, in absence of any appeal by the respondents, it will not be necessary to re-examined the same at this stage. The appellant with such finding will definitely be entitled to reimbursement of medical expenses as per the provision of sub-section (2-A) of Section 4 of the Act. As can be seen, the said provision is only in addition to the amount of compensation that can be awarded to an employee such as the appellant in the instant case. Therefore, merely on account of the medical expenses having already been paid, the appellant cannot be denied compensation otherwise entitled to him under the Act. Therefore, I am of the considered view that the Commissioner could not have denied appropriate compensation to the appellant by dismissing his claim. Therefore, the first substantial question of law is answered accordingly in favour of the appellant. 14. Coming to the second substantial question of law, it will be gainful to peruse the proviso of Section 3 of the Act to answer the same. For ready perusal, the same may be abstracted as below:- "3. Therefore, the first substantial question of law is answered accordingly in favour of the appellant. 14. Coming to the second substantial question of law, it will be gainful to peruse the proviso of Section 3 of the Act to answer the same. For ready perusal, the same may be abstracted as below:- "3. Employer's liability for compensation.-(1) If personal injury is caused to a [employee] by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter: Provided that the employer shall not be so liable- (a) In respect of any injury which does not result in the total or partial disablement of the [employee] for a period exceeding [three] days; (b) in respect of any [injury, not resulting in death [or permanent total disablement], caused by ] an accident which is directly attributable to- (i) the [employee] having been at the time thereof under the influence of drink or drugs, or (ii) the willful disobedience of the [employee] to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of [employees], or (iii) the willful removal or disregard by the [employee] of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of [employees]". 15. From what has been abstracted above, it can be seen that none of the provisions for exemption are attracted to the instant case since fault is not attributable to the appellant for the accident. Therefore, in my considered opinion, no exemption can be claimed by the respondents from compensating the appellant under the Act, more particularly under Section 3(1) of the Act. 16. As for the authorities relied upon by the learned counsel for the appellant, it may be noticed that the Apex Court in the case of Praveenbhai S. Khambhayata (Supra) has held that imposition of 10% penalty and 6% interest per annum on the awarded compensation by the Labor Court was justified. However, in the instant case no award for payment of compensation has been made in favour of the appellant so as to attract imposition of penalty on delayed payment of the compensation. However, in the instant case no award for payment of compensation has been made in favour of the appellant so as to attract imposition of penalty on delayed payment of the compensation. The case of Pratap Narain Singh Deo (Supra) relied upon by the learned counsel for the appellant is also not found to be applicable to the instant case, inasmuch as, an amendment of the Act was made by Act 30 of 1995 w.e.f. 15.09.1995 incorporating Section 4-A(3) in the Act, whereby the payment of compensation alongwith interest can be imposed when the employer is in default in paying the compensation due under the Act within 1 (one) month from the date it fell due. Therefore, when compensation is yet to be awarded to the employee such as the present case, the question of imposition of a penalty for default in payment of compensation will not arise. As such, the authorities relied upon by the learned counsel for the appellant is not found to be applicable to the appellant. 17. The appellant met with an accident on 28.3.2015 and thereafter, he was hospitalized w.e.f. 20.5.2015 to 11.6.2015. The disability certificate was issued to him on 26.5.2015. Consequently, he was appointed to the Grade-IV post under the Secretariat Administration Department vide Order dated 21.12.2015. As may be noticed from the date of the accident upto the date he joint in the Grade-IV post, there are no materials on record to show that the appellant was given his pay or salary and therefore, he will be entitled to appropriate compensation in terms of the Act. 18. The Apex Court in the case of Golla Raj anna & Ors. Vs. Divisional Manager & Anr., reported in (2017) 1 SCC 45 held that the Workmen Compensation Commissioner is the last authority on facts and therefore, the scope of an appeal under Section 30 of the Act is restricted only to the substantial questions of law. Therefore, without embarking upon the amount of compensation that will be entitled to the appellant, I am of the view that the same should be considered and decided by the Commissioner in accordance with the Act. The case is therefore remanded back to the Commissioner, Employees Compensation, Aizawl to determine the amount of compensation as may be entitled to the appellant. The case is therefore remanded back to the Commissioner, Employees Compensation, Aizawl to determine the amount of compensation as may be entitled to the appellant. Although the respondents have pointed out the fact that the disability certificate issued to the appellant recommended a review of the medical condition of the appellant as he was likely to improve, the respondents have not seriously contested the same as can be seen from the cross-examination of the appellant before the Commissioner. Therefore, the Commissioner shall make the assessment of compensation as per the exhibited materials available on record. The Commissioner shall undertake the process as directed as expeditiously as possible and within a period of 8 (eight) weeks from the date of receipt of a certified copy of this order. 19. With the above observations and directions, the appeal stands allowed. LCRs be sent back forthwith.