Chief Engineer and another vs Ab.Majid Mir and another

This appeal is directed against the award and judgment dated 24.05.2005 passed by Commissioner under Workmen's Compensation Act

(Kashmir Division) Srinagar, in claim petition titled as Abdul Majid Mir Vs. Chief Engineer and another, which shall be hereinafter, referred to as

impugned award, whereby and whereunder an award of Rs.2,47,854/ came to be passed in favour of respondent No.1 (claimant).

In order to maintain appeal against the award passed by Commissioner under Workmen's Compensation Act, a substantial question of law must

be involved in the memo of appeal, otherwise appeal is not maintainable. It is profitable to reproduce proviso to Section 30 of the Workmen's

Compensation Act, herein, which reads as under:

Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal, and in the case of an order other

than an order such as is referred to in clause(b), unless the amount in dispute in the appeal is not less than three hundred rupees:

The question is whether any substantial question of law is involved in the lis or not?

In order to appreciate the controversy, it is necessary to notice the facts of the case herein.

Respondent No.l filed a claim petition on 10""' August, 2004 with the averments that he was performing his duties as assigned to him in the

Jawahar Nagar area and due to electric shock he sustained multiple burn injuries which resulted in amputation of his left hand and forearm. FIR

came to be lodged.

Appellant and other respondent, i.e. nonapplicants in the claim petition filed objections in opposition to the claim and following two issues were

framed in the case by the Commissioner:

/. Whether accident arose during and in the course of petitioners employment with the respondents? (OPP/OPD). 2) What were the wages of the

petitioner and age at the time of accident? (OPP/ OPD).

Following facts are admitted.

The claimant was in the employment of the appellant and other respondent i.e. nonapplicants in the claim petition at the relevant point of time

when he sustained injuries.

The sustaining of multiple burn injuries had resulted into amputation of left hand and forearm of respondent No.l.

Keeping in view the above said facts, the finding returned on issue no. 1 is legally correct.

It was for the appellant to prove that the accident was not outcome of the negligence of the State but was due to negligence of the

claimant/respondent No. 1.

While going through objections, it appears that appellants had not raised such objection in the memo of objections but raised this plea in the

memo of appeal. Thus, it is not a substantial question of law. However, the appellants had not led any evidence to prove the said facts. Thus,

keeping in view the admitted facts, the claimant sustained injuries while performing his duty as a lineman.

It appears that the appellants have raised plea in the memo of objections that lineman does not fall within the definition of workman. Though,

the appellant has not raised the said plea in this memo of appeal, however, I deem it proper to deal with this aspect of the matter also.

Section 2 (l)(n) defines the workman. Serial (ix) and (xix) of Schedule II reads as under;

The following persons are workmen within the meaning of section 2(1) (n) and subject to the provisions of that section, that is to say, any person

who is

(ix) employed in setting up, maintaining repairing or taking down any telegraph or telephone line or post or any overhead electric line or cable or

standard or fittings and fixtures for the same;

(xix) employed, otherwise than in a clerical capacity, in the generating, transforming transmitting or distribution of electrical energy or in generation

or supply of gas;

While reading the sr. no. ix and xix of the Schedule (2) of the Act, the lineman is an employee of the appellants.

Section 2(1 )(n) and Schedule II of the Act nowhere mandates that lineman who is a permanent government employee is not a workman.

Appellants have admitted that he is a lineman and is in their employment. Thus, is a workman in terms of the definition reproduced hereinabove.

Appellants have raised a plea that notice under Section 10 of the Workmen's Compensation Act was not issued to the appellant. Thus, the

claim petition was not maintainable. While going through the objections, no such plea was taken by the appellants in the memo of objections but

appears to have been taken first time in the memo of appeal.

It is profitable to reproduce relevant proviso 4 to Section 10 clauses (a) and (b) herein, which reads as under:

Notice and claim.(1) [No claim for compensation shall be entertained by a Commissioner unless notice of the accident has been given in the

manner hereinafter provided as soon as practicable after the happening thereof and unless the claim is preferred before him within [two years] of

the occurrence of the accident or in case of death within [two years] from the date of death:]

[Provided further that the want of or any defect or irregularity in a notice shall not be a bar to the [entertainment of a claim]

(a) if the claim is [preferred] in respect of the death of a workman resulting from an accident which occurred on the premises of the employer, or at

any place where the workman at the time of the accident was working under the control of the employer or of any person employed by him, and

the workman died on such premises or at such place, or on any premises belonging to the employer, or died without having left the vicinity of the

premises or place were the accident occurred, or

(b) if the employer [or any one of several employers or any person responsible to the employer for the management of any branch of the trade or

business in which the injured workman was employed] had knowledge of the accident from any other source at or about the time when it

occurred:]

This provision of law mandates that notice is must but defect or irregularity in a notice shall not be a bar. If the employer had the knowledge of

the accident, notice in terms of proviso 4 to Section 10 clause (a) and (b) of the Act is not required.

It is profitable to reproduce para3 of the objections, herein, which reads as under:

That the above titled claim petition is not maintainable in view of the fact that the case of the plaintiff for paying him the compensation as

provided under rules has been referred to the higher authorities and therefore the applicant has no cause to maintain the above titled claim.

Appellant had the knowledge of the occurrence because it had recommended the case of the claimant to the higher authorities. Thus, it cannot

lie in the mouth of the appellants that they had no notice of accident.

It is also worthwhile to mention herein that appellant No.2 had sent a letter No.ED2nd/ 123435 dated 3rd June, 2004 to the Medical

Superintendent, Block Health Care, India Pvt. Limited, Mumbai, wherein it was admitted that claimant was working as lineman and got

electrocuted on 01.02.2004 the mention of which is made in the impugned order.

The amount of compensation awarded is not excessive in any way.

At this stage Mr. Beigh stated that amount received by the claimant from the department be deducted from the awarded amount.

In view of the above stated facts, appeal is dismissed along with all connected CMP(s). However, any amount received by the claimant during the

pendency of the lis be deducted and the rest amount be released and disbursed in favour of the claimant.

Appeal is dismissed, accordingly.