K. Gopal vs Management, Pandian Roadways Corporation Ltd.

M. Karpagavinayagam, J.—Gopal, the appellant herein was employed as a conductor under the Management, Pandian Roadways

Corporation Ltd., Madurai, the respondent No. 2 herein.

On 22.3.1986, the bus belonging to the respondent No. 2 met with an accident, as a result of which the conductor, the appellant herein during

the course of his employment sustained serious injuries. He was hospitalised in Government Rajaji Hospital, Madurai initially and, thereafter, an

operation was conducted in Christian Mission Hospital, Madurai, where his left patella was removed.

On finding that he became unfit to work as a conductor, he was discharged from the service. Thereafter, he was employed as a junior attender.

After joining the said post, the appellant filed a petition before the Deputy Commissioner of Labour, Madurai seeking for compensation of Rs.

80,059.80, since he became totally disabled from working as a conductor due to the injuries sustained in the accident during the course of his

employment.

The learned Commissioner for Workmen''s Compensation, after enquiry held that the appellant neither suffered total disablement nor permanent

partial disablement but, however, he would be entitled to a compensation of 25 per cent of the monthly wages from 28.3.86 to 7.1.1987, as he

suffered only temporary partial disablement, u/s 4(1)(d) of the Workmen''s Compensation Act.

This is the order impugned, which is the subject-matter of challenge before this court in this appeal.

The submission made by Mr. Rathinadurai, the counsel for the appellant is this:

The appellant is entitled to the compensation u/s 4(1)(b) of the Act, as the injury sustained by him had resulted in the total disablement and,

consequently, he would be entitled to an amount equal to 50 per cent of the monthly wages multiplied by the relevant factor. The definition of 2 (1)

(1) would squarely apply to the appellant as the term ''total disablement'' would indicate that the disability of permanent nature to incapacitate a

workman for all work which he was capable of performing at the time of the accident resulting in such disablement. Since he became unfit to do the

work as conductor, he must be considered to be a totally disabled. The mere fact that he was provided with some other job with the lesser status

and with lesser pay would not disentitle the appellant to approach the authority seeking for the compensation and, as such, the employer also

cannot escape from liability for making payment of compensation u/s 3 of the Act. So, the appellant is entitled to the compensation of Rs.

80,059.80 claimed in his application u/s 4(1)(b) of the Act.

On the other hand, Mr. Parthiban, the counsel for the respondent would make the following submission:

The order of the Commissioner for Workmen''s Compensation is legally sound. Immediately after the accident, the appellant was taken to hospital

and treatment was given in Christian Mission Hospital, Madurai. The operation was conducted upon him, since his left patella suffered fracture.

After recovery, the Management found that he was not fit to be a conductor on the basis of the medical opinion. Therefore, he was discharged

from service. During the period between 22.3.1986 and 1.5.1986 he was paid 50 per cent of wages and from 2.5.1986 to 28.9.1986 he was

paid 100 per cent wages. As such, he has already received a considerable benefit from the Management.

In the light of the rival contentions, let us now go into the question, whether the order impugned holding that even though he became unfit and

was removed from the conductor post, he cannot be called to be totally disabled, as he was given an alternative job as junior attender in the same

Management, is sustainable in law?

Before dealing with this question, let us now go into the chronological events that took place in the present case.

The appellant was working as a conductor in the respondent Management. On 22.3.1986, the bus in which the appellant was on duty as

conductor came from Trichy to Madurai. On the way, at about 12.15 midnight, the bus met with an accident near Thuvarankurichy. The appellant

sustained injuries on his left leg. He was taken to the Government Rajaji Hospital, Madurai. From there he was removed to the Christian Mission

Hospital. Since there was a fracture on the patella, the operation was conducted and kneecap was removed.

After discharge from the hospital, he received a show cause notice dated 8.8.1986 from the Management for giving explanation as to why he

should not be discharged from service, as he became unfit to work as conductor on the basis of the medical certificate issued on 1.8.1986, since

his left patella was removed.

On receipt of the said notice, he sent a reply on 16.8.1986 requesting the Management to provide alternative job like timekeeper, etc., in the

event of medical discharge from service, as otherwise his entire family would be put to untold suffering.

Despite the receipt of the above reply, by the order dated 28.8.1986 the Management discharged him from service on the ground of medical

unfitness, as he was found unfit to work as a conductor, with effect from 29.8.86 and he would be paid one month''s salary in lieu of notice as per

the standing orders. However, no alternative job was provided.

On 6.9.1986 the appellant sent a mercy petition to the Management as a reminder to consider his case sympathetically and provide an

alternative job. Ultimately, by the order dated 8.1.1987 he was employed in the Management as a junior attender with lesser pay. After joining the

said post, the appellant filed application seeking for compensation.

The claim of the appellant is that he is entitled to the compensation of Rs. 80,059.80 u/s 4(1)(b) of the Act being the amount equal to 50 per

cent of the monthly wages of the appellant multiplied by the relevant factor, as his case relates to the permanent total disablement.

The finding in the order impugned is that the appellant would be entitled to the compensation as per Section 4(1)(d), that is, the half-monthly

payment of the sum equivalent to 25 per cent of monthly wages of the workman, since it is the case of the temporary disablement.

In this context, it would be appropriate to refer some of the provisions of the Act to resolve the riddle posed before this court.

Section 3 of the Workmen''s Compensation Act deals with the employer''s liability for compensation. Sub-section (1) of that section provides

that the employer shall be liable to pay compensation in respect of any injury which results in the total or partial disablement of the workman by

accident arising out of and in the course of his employment. However, as per the proviso, the employer is not liable in respect of any injury, caused

by an accident which is directly attributable to the workman''s negligence, etc.

In the instant case, it is not disputed that the workman/appellant had sustained injury during the course of his employment and not due to his

negligence. Therefore, it is the duty of the Management, u/s 4-A(1) of the Act, to pay the compensation at the rate provided by Section 4 as soon

as the personal injury was caused to the workman.

The learned Commissioner in the impugned order held that the disablement of the appellant was of only temporary nature and so, the same

cannot be termed to be total disablement.

In this context, it would be proper to refer the definition of ''total disablement'' as provided in Section 2(1)(1) of the Act:

Total disablement'' means such disablement, whether of a temporary or permanent nature, as incapacitates a workman for all work which he was

capable of performing at the time of the accident resulting in such disablement.

The reason for holding that there was no total disablement given in the order impugned is that he was given alternative job as a junior attender

and, as such, he cannot be said to be totally disabled. This approach, in my view, is totally wrong, as the meaning of the term ''total disablement''

has not been understood by the learned Commissioner in the proper perspective.

The appellant was working as a conductor at the time of the accident. He was discharged from service only when he became unfit to work as

conductor. This is not disputed either by the Management or the worker. It is also not disputed that he was given only a job as junior attender, a

lesser status with lesser pay. This would clearly show that he was totally disabled to work as conductor.

As per the definition, the ''total disablement'' means such disablement which would incapacitate the workman for all work which he was

capable of performing at the time of the accident. The words ""all work which he was capable of performing""would indicate that all the work that he

had to perform as a conductor. The total disablement, thus, should be assessed only with reference to the work the worker was carrying on at the

time of the accident.

If the workman became disabled to perform all the work he was engaged to perform, it amounts to total disablement. This means that the

workman being conductor due to the injury sustained by him, loses the capacity to perform the work as a conductor, which capacity earned him

the status of a conductor under the employer. If so, the disablement that he suffers should be understood in respect of the work he carried on or

for which he was employed.

In other words, due to the accident, if the worker becomes totally disabled to carry on a particular work, namely, the conductor''s work as far

as he is concerned, it is a total disablement. A conductor employed is employed to do the work of a conductor. He is not to work as an attender,

sweeper or a manual labourer.

After the accident, if the conductor becomes incapable of performing his duty as a conductor, it could be certainly said that there is a total

disablement as far as he is concerned. He would cease to be a conductor under his employer and, consequently, a workman under that employer.

It may be that he was given some other job later. Admittedly, the job is not of an equal status or of an equal pay. The fact that he is now doing

some other work in the same Management can never be a ground to hold that he is not totally disabled for performing the work as a conductor,

since he was not reinstated as a conductor.

At the risk of repetition, it could be said that his disablement should be assessed with reference to the work he was engaged to perform at the

time of accident. His capacity to do some other type of work did not earn him the same status or the same nature of the work or with same salary

even though the employer is the same.

It has to be remembered that a skilled worker, namely, the conductor, due to the accident, is disabled to do the said skilled work, is not in a

position to get the same skilled work, but on the other hand, he is employed now as an unskilled worker in the same Management. Hence, with the

employee being disabled to carry the work as conductor for which he was originally employed, it is a virtual exit from the establishment.

In such a situation, we cannot hold that there is no total disablement for the employee merely because he was admitted subsequently as a junior

attender. Thus, this is a case of disablement which incapacitated the appellant herein from performing the work as conductor, that is, the work

which he was capable of performing at the time of accident. Therefore, such disablement comes within the purview of total disablement as defined

in Section 2(1)(i) of the Act.

In other words, to understand the meaning of the term ''total disablement'', the nature of the work which the workman was capable of

performing at the time of the accident was material to consider whether it is a case of total disablement or not, in view of the injury sustained in the

accident.

It may be that in view of the above injuries, the appellant is capable enough to render some other sort of work as a junior attender as he is

employed now, but still when there is incapacity to do all the work which he was capable of performing on the date of accident, it is a case of total

disablement.

To hold such a view, I find support from the decisions in Hanumantha Gowda Vs. Devaraju, ; Pratap Narain Singh Deo v. Srinivas Sabata

1976 ACJ 141 ; and Punam-bhai Khodabhai Parmar v. G. Kenel Construction 1984 ACJ 739 .

In view of the above discussion, I find that the learned Commissioner for Workmen''s Compensation is not right in holding that the appellant

would not be entitled to the compensation as per Section 4(1)(b), as his case would not come under total disablement.

It is argued by the counsel for the respondent that before he was discharged from service, 50 per cent of wages was given towards the portion

of the period and for other period till the date of discharge he was given 100 per cent wages.

The above submission, in my view, cannot be countenanced, since even as per the counter filed before the Tribunal, the said amount was given

as terminal benefits like provident fund, gratuity, etc. Admittedly, the said amount was not given as compensation.

The question which is arising for consideration is whether he is entitled to compensation either u/s 4(1)(b) or 4(1)(d).

As discussed earlier, the Tribunal is wrong in saying that the appellant is entitled to only a half-monthly payment of the sum equivalent to 25 per

cent of monthly wages of the workman, as he suffered only temporary disablement.

In this context, the Explanation provided u/s 4(2) is quite appropriate:

Any payment or allowance which the workman has received from the employer towards his medical treatment shall not be deemed to be a

payment or allowance received by him by way of compensation within the meaning of clause (a) of the proviso.

In the light of the Explanation, whatever the amount given towards other benefits including medical treatment to the workman, it cannot be

deemed to be the compensation as provided u/s 4(1)of the Act.

The observation made by this court in Sree Lalithambika Enterprises, Salem v. Kailasam 1980 ACJ 321 , in this contest, is quite relevant:

Compensation payable u/s 3 of the Act is not to be looked upon as an obligation being discharged by the employer as if it will be a liability

fastened on him and to be borne from and out of his assets or income or funds. The concept of compensating workmen who suffer injuries during

the course of their contribution of their labour for the purpose of employer''s trade or business is conceived of to ensure that whatever accident

arises out of or in the course of his employment, would be adequately met by the establishment.

In the instant case, admittedly, the appellant has suffered injury during the course of his employment and a part of the body was removed which

incapacitated him to continue his work as a conductor and, consequently, he was removed from the job also.

In this situation, refusal to award compensation would make the victim again a victim. If a workman is not to be awarded a suitable

compensation for injuries suffered in the course of his employment by simply stating that he has been taken back as a junior attender, it would be

the most injustice of depriving such a workman of getting the required compensation for what he had suffered at a time when he had contributed his

labour as a conductor in the bus.

When the intention to compensate the workman for the cause of injury suffered by him during the course of his employment and, consequently,

he became unfit to continue his employment, it would be strange to state that he will not be entitled to get compensation on the mere ground that he

has been presently employed as junior attender, as if it is only a temporary disablement.

As indicated earlier, once the kneecap was removed by conducting operation and, consequently, he became unfit to work as a conductor and

when the Management removed him from service on the same ground, it shall definitely be said that he is permanently disabled for doing the work

as a conductor and his present employment as junior attender will not cure the total disablement which he suffered.

Therefore, he would be entitled to compensation u/s 4(1)(b), namely, an amount equal to 50 per cent of his monthly wages multiplied by the

relevant factor.

In the present case, at the time of the accident he was of 48 years. As per the Schedule IV, for the person aged about 48, the relevant factor

to be multiplied is 159.80. If it is calculated as per the relevant factor, the appellant would be entitled to Rs. 80,059.80 along with interest at the

rate of 6 per cent per annum from the date of petition till the date of realisation.

Even though he has been given employment as junior attender, since the Management did not heed to his request dated 16.8.1986 in the reply

to show cause notice to give an alternative job and simply discharged him from service with effect from 29.8.1986 and even the present

employment was given reluctantly only on 8.1.1987, that too, after the mercy petition dated 6.9.1986 sent by the appellant and there is a

considerable delay without any justification, in my view, the Management is liable to pay the penalty as well. In addition to the sum mentioned

above, the Management is further directed to pay a sum of Rs. 5,000 (Rupees five thousand only) by way of penalty as provided u/s 4-A(3) of the

Act.

In the result, the appeal is allowed with costs throughout.