Surjit Singh vs Gospel Paper Board Mills

Gokal Chand Mital J.—Surjit Singh filed an application on 16th January, 1983, under the Workmen''s Compensation Act, against the Gospel Paper Board Mills, Industrial Estate, Patiala, for award of Rs. 12,936 as compensation for the loss of his left eye while working on the grinding machine on 20th September, 1981. He claimed that he was getting Rs. 650 per month, and had served a notice of the accident and claim on 15th May, 1982. The application was contested by the management and it denied that he was in its service. The receipt of the notice was admitted, but the same was stated to be false. No other plea worth noticing was raised. The learned Commissioner framed the following issues:

"1. Whether the applicant was a workman employed under the respondent on 20th September, 1981?

If issue above is proved, whether the applicant suffered personal injury during the course of his employment under the respondent on20th September, 1981 ?

To what amount is the applicant entitled on account of compensation and interest thereon against the respondent ?

Whether application is bad for non joinder of necessary parties ?

Whether the claim of the applicant is false and frivolous and the respondent is entitled to special costs ? If so, to what extent ?

Relief."

The material issues No. 1 and 2 were decided in favour of the workman and it was held that he was in the service of the respondent management on 20th September, 1981, when the accident took place and that it was during the course of employment that he lost his left eye. The Commissioner disbelieved the evidence of the management. However, under issue No. 3, it was held that the applicant admitted that the management was covered under the Employees'' State Insurance Scheme and to the same effect was the statement of Som Nath, AW-3. Therefore, it was held that he was entitled to compensation under the Scheme and Section 53 of the Employees'' State Insurance Act, 1948 (for short "the ESI Act"), prohibited the recovery of damages/compensation under the Workmen''s Compensation Act, in respect of an employment injury. Because of this finding, the claim petition was dismissed by order dated 24th April, 1986. This is the workman''s appeal.

Inspite of issue of notice, none has put in appearance on behalf of the respondent. Accordingly, I proceed to decide the appeal exparte. A reading of the findings recorded under issue Nos. 1 and 2 shows that there was variance between the defence set up and the evidence produced, and the evidence produced by the management-respondent was disbelieved. The management had not produced the record and on its behalf it was stated that the same was destroyed.

In the aforesaid background it has to be seen whether, in the absence of plea and issue, the Commissioner was justified in permitting the management to raise a new point at the time of argument. No plea was raised in the written statement that the management was paying contributions under the Employees'' State Insurance Act, and their workmen were covered under the Employees'' State Insurance Scheme, and, therefore, the application was not maintainable in view of Section 53 of the Employees'' State Insurance Act. For that reason no issue was framed in this behalf. It is a well known rule that in the absence of a plea and issue, no amount of evidence can be looked into. Hence, the court below should have awarded the compensation in these proceedings.

The statement of the workman and that of Som Nath has been misunderstood. There are certain ingredients on the fulfilment of which alone, the Employees'' State Insurance Act becomes applicable and the employees come within the ambit of the Scheme. These detailed facts have not come on the record and in the absence of the same, no definite finding can be recorded that the workman was governed by the Employees'' State Insurance Scheme and Section 53 of the Employees'' State Insurance Act was a bar to his petition. Accordingly, the finding of the court below recorded under issue No. 3 is hereby reversed.

Adverting to the quantum of compensation, Schedule I, Part II, item No. 25, shows that for loss of an eye, 40 per cent compensation is payable. Schedule IV shows that compensation payable to a workman earning between Rs. 600 and Rs. 700, is Rs. 32,340. 40 per cent of this amount comes to Rs. 12,936. Hence, the appellant is allowed compensation by way of damages amounting to Rs. 12,936 for loss of his left eye. Since payment has not been made, he is allowed 12 per cent per annum interest from the date of injury till payment. The appellant would be entitled to costs throughout.