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Abdul Sattar v/s Venkatesh

    M.F.A. No.2602 of 2016 (WC)
    Decided On, 23 May 2022
    At, High Court of Karnataka
    By, THE HONOURABLE MR. JUSTICE RAVI V. HOSMANI
    For the Appellant: M.V. Maheswarappa, Advocate. For the Respondent: S. Rajendra for S.V. Prakash, Advocates.


Judgment Text
1. Challenging Judgment and Order, dated 25.2.2016 passed by II Additional Senior Civil Judge and Employees Compensation Commissioner, Shivamogga, in ECA No.75 of 2014, this Appeal is filed by Claimant against dismissal of his Claim Petition.

2. Brief facts as stated are that Claimant (hereinafter referred to as 'Workman' for short) was a permanent Employee of Respondent ('Employer' for short), as carpenter since 24 years, in Sanathana Wood Industries belonging to Respondent. That on 31.12.2008 at 4.30 p.m., when he was working as per instructions of Employer, he suffered permanent physical disability when four fingers of his left hand got cut in planing machine. Immediately after accident, one Dhananjaya-Uncle of Employer, got Workman admitted to Nanjappa Hospital, where he was given inpatient treatment for two days and discharged.

3. It was stated that as on date of accident, Workman was 42 years of age, worked from 8:30 a.m. to 1:00 p.m. and from 2:00 p.m. to 6:00 p.m. and was paid Rs. 1,400 per week. And accident occurred while he was working on the planing machine as per instructions of Employer. Therefore, accident occurred during course of employment and out of employment. Since Claimant lost four fingers in accident, he became permanently disabled and lost earning capacity. Therefore, he filed application claiming Compensation under Sections 3, 4 & 10 of Employees Compensation Act (hereinafter referred to as 'E.C. Act' for short).

4. Upon service of Summons, Employer filed objections, denying Claim Petition averments in toto. It was contended that Claimant was not employed by Respondent and was not on duty, on date of accident. Therefore, occurrence of accident during course of employment and out of employment, admission to hospital and taking treatment as well as Claimant suffering loss of earning capacity were denied. It was specifically asserted that Respondent's father-Sri Virupakshappa was Owner of Sanathana Wood Industry, who died about four years earlier and since his death, industry remained closed. Therefore, there was no provision for work and possibility of Claimant being on duty as on date of accident. It was also specifically asserted that none of machines were running at time of accident and there was no consumption of power by any of them. It was further stated that Workman had no right to enter industrial premises without permission of Owner and if Workman got injured while claiming to work illegally, Employer was not liable to pay any Compensation.

5. Based on pleadings, Trial Court framed following issues:

[Vernacular Omitted]

6. To substantiate his claim, Workman examined himself as PW1. Exhibits P1 to P12 were marked. No evidence was led by Employer. On consideration, Trail Court answered Issue No.1 in affirmative holding that relationship of Employer and Employee was established; Issue No.2 in affirmative holding that accident occurred during course of employment and arose out of employment; Issue No.3 in affirmative holding that Workman had sustained loss of earning capacity of 28%; Issue No.4 by holding monthly income of Workman was Rs. 4,000, Issue No.5 by determining his age as 42 years and entitlement of compensation of Rs. 1,19,945 by applying factor of 178.49 and Issue No.6 by holding Employer liable to pay same with interest at 12% per annum from 31.1.2009.

7. Aggrieved by award, Employer preferred Appeal before this Court in M.F.A. No.2702 of 2014. By Order, dated 26.6.2014, Appeal was allowed matter remanded back with a direction to provide an opportunity to Employer to lead evidence. Upon remand, following issues were framed in E.C.A. No. 75 of 2014:

Issues:

(1) Whether petitioner proves that he was an Employee under Respondent as on the date of alleged accident?

(2) Whether Petitioner proves that he sustained injury in accident arising out and in the course of employment?

(3) Whether Petitioner is entitled for Compensation as prayed for? So, how much at what interest? From whom?

(4) What order or reward?

8. In discharge of burden cast under issues, Workman examined himself as PW1. Dr. Umesh Kamath was examined as PW2. Exhibits P1 to P16 were marked. On behalf of Respondents Employer was examined as RW1; Sri. D. Mohan Girimaji was examined as RW2. Exhibits R1 to R10 were marked.

9. On consideration, Trial Court answered Issues No.1 & 2 in negative, Issue No.3 as not surviving for consideration and Issue No.4 by dismissing Claim Petition. Aggrieved thereby, Workman is in Appeal.

10. Sri. M.V. Maheshwarappa, learned Counsel for Appellant submitted that Workman was employed as Carpenter and working as such for past 24 years. On 31.12.2008, while working with planning machine as per instructions of Employer, Workman met with accident and left hand fingers of Workman got chopped off by machine. Immediately after accident, Workman was admitted to Nanjappa Hospital for treatment, where he was inpatient for two days as established by Ex.P2. Learned Counsel further submitted that Ex.P1-statement was recorded at 8:45 p.m. on 31.12.2008, wherein Workman had clearly stated about accident and his admission to hospital by Employer. Learned Counsel submitted that Ex.P2-wound Certificate issued by Nanjappa Hospital corroborated Claimant's assertion about accident. Ex.P5-acknowledgement of receipt of Complaint issued by Vinobha Nagar Police Station on 31.12.2008, Ex.P6-Legal Notice got issued by Workman against Employer claiming Compensation and Ex.P7-intimation sent by Nanjappa Hospital to Vinobha Nagar Police Station and Ex.P9-letter issued by Employer acknowledging Claimant as Workman and medical records Ex.P9 & P12 etc., established that Workman was employed by Respondent and he sustained injuries during course of employment resulting loss of earning capacity. Therefore, dismissal of Claim Petition would not be justified.

11. In support of his submission, learned Counsel relied upon Judgment of this Court passed in case of Sandeep B.N. v. New India Assurance Company Ltd., Bengaluru and another,ILR 2020 KAR 2602 and sought allowing Appeal awarding Compensation.

12. On other hand, Sri Rajendra S. Advocate appearing for Sri S.V. Prakash, learned Counsel for Respondent supported award and opposed Appeal. He submitted that Appellant was not a Workman and therefore not entitled for Compensation. Learned Counsel submitted that though documents produced may establish that Workman sustained injuries, but there is no evidence to establish that injuries occurred during course of employment and arose out of employment. Ex.P9-letter head of Sanathana Wood Industries was dated 6.11.1996, wherein it was stated that Appellant was doing piece work since two years and letter was issued for obtaining ration card. Learned Counsel further submitted that Sanathana Wood Industries was owned by his father, who died on 29.7.2005 and thereafter industry was closed. Documents produced by Respondent viz., Exs.R1 & R2 would indicate that electricity consumption was a bare minimum. Exs.R5 to R10-Value Added Tax Returns would also indicate 'nil' transactions thereby substantiating specific defence of Employer. Trial Court on due appreciation of evidence on record had arrived at a finding of fact that Appellant had failed to establish that he had sustained injuries in an accident occurred during course of employment and out of employment and that Appellant had failed to establish relationship of Employer and Employee. While arriving at such a conclusion, Trial Court had also drawn adverse inference against Appellant for non-examination of other Workers, who had witnessed accident. Learned Counsel therefore submitted that no substantial question of law arose for consideration and sought for dismissal of Appeal.

13. From above submissions, it is not in dispute that Appellant sustained injuries to his left hand. While Appellant contends that injuries and consequent disability sustained while he was in employment under Respondent and therefore injuries were sustained during the course of employment and out of employment. Respondent contends that there was no relationship of Employee and Employer between Appellant and Respondent and accident did not occur during course of or out of employment. Trial Court dismissed claim on the ground that Appellant failed to establish relationship of Employer and Employee.

14. Appeal was admitted on 26.6.2019 to consider following substantial questions of law:

(1) Whether Tribunal was justified in dismissing Claim Petition, ignoring oral evidence of PW1 and material documents Ex.P1 & P2?

(2) Whether Tribunal is justified in holding that there is no relationship of Employer and Employee ignoring oral evidence and material documents produced by Claimant to prove relationship between parties?

15. Above substantial questions of law, require examination of pleadings and evidence led by Appellant would establish relationship of Employer and Employee and whether he would be entitled for Compensation. In Claim Petition, Appellant had stated that he was working as a Carpenter in Sanathana Wood Industries owned by Respondent since 24 years. And on 31.12.2008 while working on planning machine at 4:30 p.m., four fingers of his left hand got cut. He was admitted by Respondent's Uncle Dhananjaya to Nanjappa Hospital for treatment. He has also stated that he was 42 years of age and was paid Rs. 200 per day. He had also stated that Complaint C. Misc. No.104 of 2008 was given to Vinobha Nagar Police Station, Shivamogga about incident. Lawyer's notice was also issued to respondent for Compensation, which was not responded to.

16. Objections of Respondent unequivocally denies relationship of Employer and Employee. There is an emphatic assertion that he was not concerned with Sanathana Wood Industry, that Respondent was neither Owner nor running any industry. It was contended that his father Virupakshappa-Owner of Sanathana Wood Industries died four years earlier and from date of his death, industry was closed. There is also a specific assertion that closure of industry was verifiable from non-usage of electricity. In his examination-in-chief, in addition to assertions in Claim Petition, Appellant stated that he was the only earning member in family and lost earning capacity due to injury sustained in accident. During cross-examination, he admits that there are no documents to establish receipt of payment. He denies that industry belonged to Virupakshappa. Though he admits that to run machineries in industry, consumption of electricity was required, he denies suggestion that from beginning of 2008, electricity board was issuing bill for minimum charge.

It is also elicited that at the time of drawing of mahazar by the police, after accident, along with him Venkatesh and Indrappa were also present. He admits that Ex.P9 was obtained while he was working in Sanathana Wood Industries. Respondent had suggested that as Appellant knew the place where key of industry was available and Appellant sustained injuries while he was carrying out his personal work in industry. Said suggestion, however, is denied.

17. Ex.P1 is Statement recorded by police on 31.12.2008, while Appellant was in hospital. In Complaint, it is stated that on 31.12.2008, while he was carrying out planning work at about 4:30 p.m. his left hand got cut in planning machine leading to four fingers being cut off. And immediately after accident Employer-Dhananjay had taken him to Nanjappa Hospital for treatment. It is also stated that as injuries sustained was accidental, no legal action should be taken against anyone.

18. Ex.P2 is wound Certificate issued by Nanjappa Hospital, which indicates date of admission, date of discharge, injuries sustained and history of injuries. Though, it is stated that injuries were sustained while working on wood planning machine, but there is no mention of Sanathana Wood Industries in Ex.P2. However, in Ex.P.3-discharge summary, there is reference to Sanathana Wood Industries. Ex.P.5-acknowledgment for having received Complaint. Ex.P6 is Legal Notice issued to Respondent-Employer which is served on Respondent as indicated in Ex.P4-RPAD acknowledgment. Intimation given by Nanjappa Hospital to Police Station is marked as Ex.P7. Ex.P9 is letter head. Ex. P9(a)-disability Certificate. Exs. P10 & P11 are photographs of Appellant while Ex.P12 is X-ray film. Ex. P13 is Letter, dated 10.7.2014 addressed by Appellant to Deputy Commissioner, Shivamogga, seeking for handing over possession of Sanathana Wood Industries to Respondent, consequent upon remand of Claim Petition under Workmen's Compensation Act. Ex.P14 is also a Letter, dated 5.7.2014 written by Respondent to Tahsildar for similar purpose. Ex. P15 is Letter, dated 22.2.2014 by Deputy Commissioner, Shivamogga to Tahsildar issuing clarification regarding measures to be taken up for recovery of award amount. Ex.P16 is seizure mahazar drawn on 2.4.2014 by Revenue Inspector. One of the machinery seized under Ex.P16 is a planning machine. In Ex.P13 & P14, Respondent has stated that he was earning livelihood by running industry and if possession of industry and machinery was not delivered back to him, machineries would be spoiled and he would be deprived of livelihood.

19. Exs.P1 & P2 indicate that accident occurred on 31.12.2008. During cross-examination of PW1, there is a specific suggestion that as Workman knew where keys of industry was available, he had taken same and while carrying out piece work, he sustained injuries. From above suggestion as well as contents of Exs.P1 to P3 indicate that Workman sustained injuries in an accident occurred on 31.12.2008. Trial Court has also held that Workman established that he had sustained injuries. From contents of Exs.P13 to P16, it is revealed that Respondent was running industry upto date of seizure. There is no denial that Dhananjaya was his Uncle. Said Dhananjaya has not been examined by Respondent. Such examination would have revealed all particulars about accident, such as place and manner of occurrence. Non-examination of Dhananjaya would entail drawing adverse inference against Respondent.

20. Provisions of Workmen's Compensation Act (now the Employees Compensation Act), is a piece of beneficial legislation providing for Compensation for Workmen sustaining injury/partial or permanent physical disability during employment. Workmen cannot be expected to establish all the facts with mathematical precision. Exs.P1 to P3 establish that Workmen sustained injuries while working in wood planning machine in Sanathana Wood industries on 31.12.2008 at 4.30 p.m., wherein Workmen sustained dismemberment of fingers of his left hand. As per Ex.P2 and deposition of PW2, Workmen lost middle and distal phalanges of index, middle, ring and little fingers. Injuries are corroborated by Exs.P10 & P11-photographs as well as Ex.P12-X-ray film. Entry 28 of Schedule-I prescribes loss of earning capacity of 11% for loss of two phalanges of index finger, while it is 9% in respect of middle finger; 6% in respect of ring or little finger i.e., 11+9+6+6 = 32%. PW2 has assessed loss of earning capacity at 40% in respect of left hand. Admittedly, Workman in this case is a Carpenter, who requires fingers for grasping tools for performing his work. Though there is no evidence regarding level of expertise or skill, Workman would be sufficiently experienced even if his period of

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experience is calculated from date mentioned in Ex.P9 i.e., two years prior to 1.11.1996. Accident occurred on 31.12.2008, which should mean he was having about 14 years of experience. In view of above and in absence of any evidence to contrary, it would not be reasonable to accept Assessment by PW2 about loss of earning capacity. In my view it would be just and proper to assess loss of earning capacity at 25%. 21. Insofar as wages, Workman has claimed that he was paid Rs. 200 per day and Rs. 1,400 per week. There is no serious dispute about wages and age of Workman as 42 years on date of accident. As on date of accident, Act prescribed ceiling limit of Rs. 4,000 per month, therefore, same has to be considered as monthly income of Workman. As per Schedule-IV, factor applicable would be 178.49. Therefore, Assessment of loss of earning capacity would be as follows: Rs. 4,000 x 60% x 178.49 x 25% = Rs. 1,07,094 In view of above, substantial questions of law are answered in negative. It is held that Trial Court was not justified in dismissing Claim Petition. Workman established relationship of Employer and Employee and also that he sustained injuries during course of employment and out of employment and entitled for Compensation as above. 22. In the result, I pass following: Order: Appeal is allowed in part. Impugned Judgment and Decree passed by II Additional Senior Civil Judge and Employees Compensation Commissioner, Shivamogga, is set aside. E.C.A. No.75 of 2014 is allowed in part assessing Compensation of Rs. 1,07,094 with simple interest at 12% per annum from one month after date of accident till date of deposit. No order as to costs.
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