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2021 DIGILAW 106 (GAU)

Chief Secretary v. Lalsangliana

2021-02-10

NELSON SAILO

body2021
JUDGMENT Nelson Sailo, J. - Heard Ms. Mary L. Khiangte, the learned Government Advocate for the appellants. As for the respondent applicant, he is represented by Mr. Johny L. Tochhawng. 2. This is an appeal against the Judgment & Award dated 12.12.2017, passed by the Commissioner under the Employee's Compensation Act, 1923 (Compensation Act) in WC Case No. 15/2015 preferred by the State appellants. By the said Judgment & Award, the respondent applicant was awarded a sum of Rs. 2,93,819/- alongwith 12% interest per annum from the date of the accident as compensation. It is seen from the records that prior to filing the instant appeal, the appellants have already deposited the final award of Rs. 4,49,543/- (inclusive of interest) before the Commissioner, as mandated by Section 30 of the Compensation Act. 3. Facts of the case as projected by the respondent applicant is that on 25.07.2013, the applicant was detailed to repair electric line of College Veng Feeder at Arhuan, Salem Veng, while he was on top of the electric pole, the electric current passed through the line and as a result, he was caught by the electric current. He got severe burnt injuries on the both sides of his hand as well as in his legs. The injuries sustained by him has left him with 40% functional disability causing great hardship in the discharge of his work as a Muster Roll employee under the Power & Electricity Department. As such, the applicant has claimed for maximum compensation as admissible in law for having suffered 40% functional disability. 4. The Power & Electricity Department as opposite party, contested the claim by filing written statement stating that the claim application suffered from non-joinder and misjoinder of parties and that the applicant being an unskilled Muster Roll laborer under the Department, he was not an employee as defined under the Compensation Act. The opposite party further stated that although the claimant could not perform his duty properly, he was not discharged from the Department and was being paid his wages regularly. As such, the claim application should be dismissed. 5. In support of his claim, the respondent applicant examined himself and the case IO as claimants' witness, while the opposite party examined Smt. Lalthakimi, Under Secretary to the Government of Mizoram, Power & Electricity Department as defence witness. As such, the claim application should be dismissed. 5. In support of his claim, the respondent applicant examined himself and the case IO as claimants' witness, while the opposite party examined Smt. Lalthakimi, Under Secretary to the Government of Mizoram, Power & Electricity Department as defence witness. The Commissioner framed 3 (three) issues namely; (1) Whether the deceased is a Workmen within the meaning of the Act? (2) Whether the accident arose out of or in the course of the deceased's employment? (3) Whether the amount of compensation claimed is due, or any part of that amount? (4) Whether the Opposite Party is liable to pay such compensation as is due?. After the parties led their respective evidence, the Commissioner decided all the issues in favour of the claimant and awarded compensation to the respondent claimant as already indicated hereinabove. 6. In order to consider the appeal of the appellants, this Court has formulated the following substantial question of law; (1) Is a Muster Roll employee, an employee under the Employee's Compensation Act? (2) Is the Judgment of the Commissioner perverse in as much as the same is rendered without framing of issue in respect of whether the respondent suffered loss of income when the same is denied by the appellant in their written statements? (3) Is the finding of the Commissioner regarding employer and employee relationship between the appellant and the respondent perverse in as much as the same is not based on evidence? 7. The learned counsels for the rival parties at the outset has drawn the attention of this Court to the Judgment & Order dated 02.08.2019 passed in MFA No. 1/2019 (The Secretary to the Government of Mizoram, Tourism Department, Aizawl Vs. Smt. Sita Karki), wherein a Coordinate Bench of this Court has held that Muster Roll employees are covered by the scheme of the Compensation Act and therefore, they will be entitled to compensation as prescribed by the Compensation Act. This Court had also held that for the act of an employee, the employer would also be vicariously liable. The applicant in that case was a Muster Roll employee under the Tourism Department and this Court for the reasons given in the Judgment, declined to interfere with the award passed by the Commissioner under the Compensation Act. This Court had also held that for the act of an employee, the employer would also be vicariously liable. The applicant in that case was a Muster Roll employee under the Tourism Department and this Court for the reasons given in the Judgment, declined to interfere with the award passed by the Commissioner under the Compensation Act. The learned counsels for the rival parties in the instant case therefore submit that in so far as the first and the third substantial question of law is concerned, the same needs no further examination as it is covered. 8. Ms. Mary L. Khiangte, the learned Government Advocate however submits that in respect of the second substantial question of law formulated by this Court, the same may be examined and considered by this Court. She submits that the appellants as opposite party before the Commissioner had filed their written objection clearly stating that the respondent applicant even after the accident was being paid his wages @ Rs. 6100/- per month regularly and therefore, there being no loss of income, his claim for compensation was not tenable. Despite such objection being raised, the Commissioner failed to frame an issue on this point. The learned Government Advocate further refers to Section 2(g) of the Compensation Act to contend that as per the definition of partial disablement, one would be entitled to compensation if such disablement reduced the earning capacity. She submits that in so far as the present case is concerned, there is no dispute that the respondent applicant was regularly getting his monthly wages and therefore, there being no loss of income, the Commissioner could not have awarded compensation to him. She therefore submits that in that view of the matter, the Judgment & Award of the Commissioner on this issue in particular, cannot be sustained and should be suitably interfered with by this Court. 9. Mr. Johny L. Tochhawng, the learned counsel for the respondent applicant, on the other hand submits that due to the accident, the respondent applicant suffered grievous injuries and was being treated for burnt injuries in both his hands and on his legs. As a result of the accident, the respondent applicant has sustained impaired reach and weakness of grip in both his arms. In view of his disability, the respondent applicant has faced great difficulty in carrying out his day to day function under his employer. As a result of the accident, the respondent applicant has sustained impaired reach and weakness of grip in both his arms. In view of his disability, the respondent applicant has faced great difficulty in carrying out his day to day function under his employer. The respondent applicant was also issued a disability certificate by the Medical Board, Civil Hospital Aizawl, wherein the percentage of his disability is shown as 40%. The learned counsel therefore submits that there is no dispute with regard to the accident as well as the disability suffered by the respondent applicant because of the accident and therefore, the Commissioner was fully justified in passing the impugned Judgment & Award. The learned counsel also refers to Section 3 of the Compensation Act and contends that if personal injury was caused to an 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 Chapter II of the Compensation Act. He submits that from the evidence led by the respondent applicant, it is clear that the respondent applicant sustained injury while discharging his duty as assigned by his employer. 10. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record including the Lower Court Records. 11. In view of the submissions made by the rival parties, the only issue which remains to be considered and decided is as to whether the Commissioner committed error in not framing an issue as to whether the respondent applicant suffered loss of income since it was denied by the appellants in their written objection. From the records, it is seen that on 15.07.2016, the Commissioner framed 3 (three) issues and which has already been abstracted hereinabove. Upon framing the 3 (three) issues, the next date fixed was 17.08.2016 for claimant's evidence. From a perusal of the subsequent dates after 17.08.2016, it is nowhere seen that the appellants as opposite party had made any prayer for framing an issue as to whether the respondent applicant suffered any loss of income. Therefore, in my considered view such ground cannot be raised at this stage. It is also noticed that in the written objection filed by the appellants, the appellants have admitted that the respondent applicant could not perform his duty properly. Therefore, in my considered view such ground cannot be raised at this stage. It is also noticed that in the written objection filed by the appellants, the appellants have admitted that the respondent applicant could not perform his duty properly. Nevertheless, he was not discharged from the Department but he was paid his wages regularly. Therefore, it is seen that despite the injuries or disability suffered, the respondent applicant was still and somehow attending his duties. It is heartening to see that the employer has not discharged the respondent applicant despite his disability but at the same time, the same cannot be the ground to disentitle him from getting compensation under the Compensation Act. Section 3 of the Compensation Act clearly provides that if personal injury is caused to an employee by accident arising out of and in the course of his employment, the employer would be liable to pay compensation in accordance with the provisions of the Compensation Act. Therefore, upon due consideration of the materials available on record, I do not find any good ground to interfere with the impugned Judgment & Award. However, one aspect to the matter which requires modification is the rate of interest given by the Commissioner. Having regard to the prevailing interest rates and also the decision of this Court in Smt. Sita Karki (Supra), the interest to be paid to the respondent applicant shall be 8% per annum instead of 12% per annum. The respondent applicant shall approach the Commissioner alongwith a copy of this order and the amount deposited by the appellants shall be disbursed without delay after adjustments are made if the same is necessary in view of the rate of interest being modified. 12. But for the above modification, the appeal stands dismissed. Office to send back the Lower Court Records.