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Judgment
The present appellant, who was the original respondent No.1 before the learned Commissioner in an application preferred by the employee under the Workmen's Compensation Act, 1923 has challenged the order passed by the learned Commissioner directing him to pay Rs.75,164/-with simple interest @ 12% from the date of filing of the application by the employee within a period of 30 days from the receipt of the order as well as to pay the amount of penalty at 50% i.e. Rs.37,582/- within a period of 30 days from the receipt of the order.
Short facts of the present case may be referred as under:
2.1 That, the respondent No.1 - original applicant preferred an application (i.e. non-fatal) Application No.7 of 1996 under the Workmen's Compensation Act stating that during the course of employment with the respondent No.1 while he was working on a machine he had received injuries of left hand four fingers. That, he was admitted in the Hospital of Dr.Dholakia as indoor patient and operation was performed, and therefore, all the four fingers of the left hand were amputated. That, he had received permanent disablement of 50%, and therefore, the respondents were liable to pay the compensation of Rs.67,200/- along with the interest and penalty.
2.2 The respondent No.1 - present appellant filed its written statement vide Exhibit 8 contending that the applicant was working with the respondent No.1 since last 15 days only and he was paid Rs.45 per day. It was admitted that on 9th January, 1996, the applicant was working on a machine, at that time his left hand was injured on account of accident and four fingers were cut off. That, if any care would be taken by the applicant, the accident might have been avoided. That, this accident was occurred on account of bare negligency on the part of the applicant himself. That, the compensation of Rs.25,000/- was paid to the applicant towards treatment from 09th January, 1996 to 8th February, 1996. That, insurance was covered on account of injuries sustained by the applicant with the respondent No.2. That, the applicant was informed to provide medical certificate frequently, however no documents were produced or handed over to the respondent. That, there was sheer negligency on the part of the applicant, and therefore, insurance company was not informed for claiming compensation for this accident. That, respondent was not liable to pay the compensation, interest and/or penalty. Hence, it was requested by this respondent to dismiss the application.
2.3 The respondent No.2 filed its written statement vide Exhibit 17 denying the averments made by the applicant in his claim application submitting that a letter was written by the insurance company to the respondent No.1 on 21st August, 1996 to produce necessary documents. That, it was replied on 26th August, 1996 that medical report was available with the workman and he refused to submit the medical report. That, in absence of any medical report, the insurance company was not in a position to make an assessment of compensation or to deposit the amount. That, medical report was not submitted with the respondent No.2 and therefore, no compensation was paid to the workman-applicant. That, the applicant himself was negligent and therefore, the insurance company was not liable to pay the amount, or interest as well as penalty. Hence, it was requested by respondent No.2 to dismiss the application.
2.4 Learned Commissioner was pleased to frame issues vide Exhibit 21. After recording the evidence of the either side, by an Order dated 31st August, 2004 the application No.7 of 1996 was allowed by the Ld. Commissioner, directing the respondent No.2 to deposit the amount of compensation of Rs.75,164/- within a period of 30 days from the receipt of the order. The present appellant-respondent No.1 was directed to pay the amount of simple interest @12% and 50% penalty amount i.e. Rs.37,582/- within a period of 30 days from the date of receipt of the order.
2.5 Present appellant, being dissatisfied with the judgment and award passed against the appellant of directing to pay the amount of interest as well as penalty, has challenged the order by preferring this appeal under Section 30(1)(aa) of the Workmen's Compensation Act, 1923.
Heard Mr.Prabhakar Upadhyay, learned Advocate for the appellant and Mr.Vishal P. Thakker for the respondent No.1.
It was submitted by the learned Counsel for the appellant that the impugned award passed against the present appellant is contrary to law and settled principle of law, and therefore, requires to be quashed and set aside. It was further submitted that written evidence was not properly considered by the learned Commissioner. Inviting attention to certain documents produced on record vide Exhibit 9 dated 27th February, 1997, Exhibit 12 dated 9th July, 1997 and Exhibit 14 dated 24th September, 1997, it was argued that three times written request was made before the Commissioner that no medical disability certificate was provided to the employer-appellant by the workman-respondent No.1-original applicant, and therefore, there was delay to file the claim before the insurance company. That, upto September, 1997, no documents showing the disability suffered by the applicant was submitted by the applicant to the respondent No.1 and therefore, the employer was not in a position to file the claim before the insurance company. It was further submitted that the learned Commissioner was pleased to pass an order on 24th September, 1997 directing the applicant to produce the permanent disablement certificate on or before the next date of hearing so that the insurance company can deposit the amount. It was further submitted that this order was passed by the learned Commissioner on 24th September, 1997. The documentary list was produced vide Exhibit 20 by the applicant on 9th April, 2003 along with certain documents of bills, prescription, laboratory report, x-ray of the treatment taken by the applicant. The delay was sufficiently explained by the present appellant-original respondent No.1 of not depositing the amount as required under Section 4A.(3) within 1 month from the date it fell due. There was no fault on the part of the present appellant to deposit the amount as the medical disablement certificate was not received by this respondent or was provided by the applicant, however frequently request was made. Hence, it was requested by the learned Counsel for the appellant to quash and set aside the impugned judgment and award passed by the learned Commissioner holding the liability of the present appellant to pay the interest and penalty amount.
From the other side, Mr.Vishal P. Thakker, learned Counsel for the respondent No.1 supported the judgment and award passed by the learned Commissioner submitting that apparently there is no mistake committed by the learned Commissioner in passing the award against the appellant-original respondent No.1. That, four fingers were injured and were cut off on account of injuries received by the workman during the course of employment on 9th January, 1996. That, no disability certificate was required to be produced by the applicant before the respondent No.1-employer. Inviting attention to Schedule I, Part - II, Item No.7, it was submitted that in the present case there was loss of four fingers on one hand and percentage of loss of earning capacity was fixed at 50% by the statute itself. That, the learned Commissioner has committed no error in assessing the amount of compensation as per Schedule I, Part-II, Entry No.7 on account of loss of four fingers and disability of 50% under the Act as per Entry No.7 of Part-II of Schedule I. That, the amount was deposited by the present appellant before the Commissioner on 17th June, 2006 after long period of 10 years. As there is no substance in the arguments advanced by the appellant, it was requested by the learned Counsel for the respondent No.1 to dismiss the appeal.
Having considered the facts of the case, the submissions made by the learned Counsel for the respective parties, undisputedly, the accident was occurred to the original applicant on 09th January, 1996 while he was working under the employment of respondent No.1. He met with an accident and received injuries and lost his four fingers of his left hand. Before the Workmen Commissioner, the applicant deposed on oath supporting his contents that on 09th January, 1996, he was working on a machine under the employment of respondent No.1, he met with an accident and he had lost his four fingers. His age was 21 years. On account of his medical treatment, he was paid Rs.5,000/- to Rs.6,000/- by the respondent No.1. In his cross examination, he has admitted that the employer shifted him to the Hospital for his treatment. The total medical expenses was Rs.25,000/-. He has admitted that permanent disability certificate was not handed over to the employer as it was not received by him from the Doctor. He has further admitted that the same certificate of disablement was not supplied to the insurance company nor any notice was issued by him to the insurance company.
Vide Exhibit 9 an application was submitted by the appellant-respondent No.1 declaring that by filing of the application i.e. on 27th February, 1997 no disability certificate was supplied to the appellant-respondent No.1 and therefore the claim papers were not forwarded to the insurance company. A request was made before the learned Commissioner to direct the applicant to produce the disability certificate before the Court. Again, on 09th July, 1997 vide Exhibit 12, second request was repeated by the appellant-respondent No.1 stating that there was a delay without any reason on the part of this respondent as medical disability certificate was not supplied by the applicant and therefore, the claim papers were not filed before the insurance company. Third request was made vide Exhibit 14 before the learned Commissioner on 24th September, 1997 repeating the previous two requests of not supplying the disability certificate however frequently informed to the applicant and suffering difficulties in filing the claim papers before the insurance company. The Learned Commissioner was pleased to pass an order on 24th September, 1997, directing the applicant to produce the disability certificate on next date of hearing so that the insurance company can deposit the amount.
It appears that on 9th April, 2003, vide Exhibit 20 a documentary list was produced by the applicant consisting five documents i.e. a bill of Rs.600, receipt of medical store, prescription of the orthopedic Dr. Dholakia, laboratory report as well as x-ray. That, no disability certificate was incorporated or produced in the documentary list Exhibit 20 by the applicant.
Now, if we consider the relevant provisions of the Act, under Section 4A, compensation under Section 4 shall be paid as soon as it falls due. Under sub-section (3) of Section 4A., where any employer is in default in paying the compensation due under this Act within one month from the date it fell due, the commissioner shall - (a) direct that the employer shall, in addition to the amount of the arrears, pay simple interest thereon at the rate of twelve percent per annum or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified by the Central Government, by notification in the Official Gazette, on the amount due; and (b) if, in his opinion, there is no justification for the delay, direct that the employer shall, in addition to the amount of the arrears and interest thereon, pay a further sum not exceeding fifty percent of such amount by way of penalty.
If we consider and interpret sub-Section (3) of Section 4A., it was the liability of the employer to pay the amount of compensation due under this Act within a period of one month from the date it fell due. The date of accident was, undisputedly, 9th January, 1996. The appellant-employer has deposited the amount of penalty and interest before the learned Commissioner on 17th June, 2006. The main submission made by the learned Counsel for the appellant that the disability certificate was not produced by the applicant, cannot be sustained for the reasons, passed hereinafter.
If we consider Section 4(1)(c) where permanent partial disablement result from the 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 II provides that in assessing the loss of earning capacity for the purpose 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.
Now, if we refer the Schedule I, Part I - list of injuries deemed to result in permanent total disablement was provided while in Part II - list of injuries deemed to result in permanent partial disablement was provided. At Serial No.7, in case of loss of four fingers of one hand, the percentage of loss of earning capacity was fixed at 50%.
If we again consider Section 4(1)(c)(ii), the word used are - "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." This provision would be applicable in a case where injuries are not specified in Schedule I.
If we again refer Explanation II of Section 4(1)(c) of the Act, which provides that - "in assessing the loss of earning capacity for the purpose 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." Here also it is relating to sub-clause (ii) where injuries are not specified in Schedule I. Here in the instant case, injury is specifically provided under Schedule I, Part II - list of injuries deemed to result in permanent partial disablement. At Serial No.7 in the description of injury in case of loss of four fingers of one hand percentage of loss of earning capacity is clearly provided as 50%. If this injury was not shown in Schedule I, certainly Section 4(1)(c)(ii) as well as Explanation II would be applicable and would be required to be considered by the Court. Here, specific injury was shown as sustained by the applicant under Schedule I, Part II and therefore, there was no applicability of Section 4(1)(c)(ii) or Explanation II as argued by learned Counsel for the appellant.
Under Section 4A.(3), the employer was required to pay the compensation due under this Act within a period of one month from the date it fell due. There was no need to produce the disability certificate in the instant case, as the percentage of loss of earning capacity on account of loss of four fingers of one hand was prescribed under Schedule I, Part II and therefore, the employer was liable to pay the compensation relying upon the Schedule and the injuries caused to the applicant within the period as prescribed under the provision as referred.
Learned Counsel for the appellant has relied upon the judgment delivered in the case of Beni Agro Products Pvt. Ltd V/s. Hiren Jitendra Pandya - First Appeal No.2605 of 2014, wherein considering the facts of the case, the employee was injured and an amount of Rs.1,00,000/- was already paid to the claimant. The claimant has already admitted in his deposition that he had received such amount and therefore, it was observed that it cannot be said or presumed that the employer has failed to pay the amount of compensation as and when it was due.
Here, in the present case, the claimant-workman has admitted that he has received Rs.5,000/- to Rs.6,000/- on account of treatment. After the accident, the amount of Rs.25,000/- was argued by the appellant, no evidence was produced of paying the amount to the workman-applicant. The facts of the cited case is rather different with the facts of the present case and therefore, the said judgment would not be applicable in the present case.
Under the circumstances, this Court is of the view that learned Commissioner has committed no error in passing the impugned judgment and award against the present appellant, and therefore, this appeal requires to be dismissed. Accordingly, this appeal is hereby ordered to be dismissed.
The impugned judgment and award passed by the learned Commissioner is hereby confirmed.