M/s Apex Plastic Thana & Another vs Deepak Kumar

Vivek Singh Thakur, J

This appeal has been preferred by employer against its employee/claimant, assailing award dated 31st July, 2013 passed in Claim Application No. 16/2 of 2011 titled Deepak Kumar vs. M/s Apex Plastics and another instituted on 8th June, 2011 under Employees/Workmen Compensation Act (in short ‘the Act’), whereby the Commissioner, Employee’s Compensation, Court No.2, Nalagarh District Solan H.P. has awarded compensation of Rs.6,38,392/- in favour of claimant/employee along with interest at the rate of 9% per annum from the date of accident till deposit of entire compensation amount.

2 Claim petition was preferred by the claimant/employee for receiving crushed injuries in his right hand on 17th July, 2009 at about 11 AM, when he was discharging his duty as a workman for the employer in the factory premises, resulting into amputation of thumb, fracture in bones and other fingers, cutting of skin and veins and partial loss of middle finger. According to claimant, on account of accident, he was not capable of working with right hand and therefore, he could neither write nor work with said hand for which plastic surgery was also conducted. The claimant, for his treatment, remained in PGI Chandigarh from 18.7.2009 to 28.7.2009 and his treatment was going on and till the filing of present petition, he had spent Rs.60,000/- for his treatment.

3 Claiming salary of Rs.4700/- per month along with other benefits under the Labour Law, claimant had claimed his entitlement for compensation of Rs.10 lacs along with interest at the rate of 9% per annum from the date of accident and also penalty to the tune of Rs.50,000/- for non-payment of the amount of compensation within time.

4 Claim of claimant was that he was 21 years old and was working as a Machine Operator with the employer. Though occurrence was not disputed, however it was contended that as injury was not caused during the course of employment, therefore, at the time of accident, there was no employer and employee relationship between claimant and appellant, because at the time of accident, claimant was not working under instructions and control of appellant, and accident took place on account of negligence on the part of claimant himself.

5 Engagement of claimant in the factory was admitted with denial that he was appointed as Machine Operator, however stating that he was working as Helper but salary amounting to Rs.4700/- per month was not disputed. It was also contended that after the accident, claimant was immediately taken to the nearest Sidhant Nursing Home Sai Road, Baddi, District Solan and after providing first aid, he was referred to PGI Chandigarh. The entire expenses of treatment of claimant were borne by the appellant on humanitarian ground and an attendant was also deputed by the appellant during his treatment at PGI Chandigarh.

6 Claimant has examined himself as PW1 and Dr. Amarjit Singh as PW2. Whereas, appellant has examined RW1 Rakesh Kumar Production Manager, RW2 Rajesh Kumar Accounts Executive and RW3 Om Parkash co-worker in the factory.

7 Claimant has relied upon photocopy of Out Patient Ticket treatment record and photographs Mark A to Mark-D, disability certificate Ext.PW2/A, whereas School Leaving Certificate, produced by appellant/employer during cross-examination of claimant as Ext.R1, has also been admitted by claimant to be correct indicating his date of birth 8.1.1991 depicting that on 1.1.2004 his age was 18 years. Respondents, to substantiate the help provided by employer to claimant, has relied upon documents related to treatment charges Ext.RW2/1 to Ext.RW2/83 and copies of labour charges Ext.RW2/A to Ext.RW2/N.

8 After taking into consideration material placed before the Commissioner and considering the provisions of law, the Commissioner has arrived at conclusion that claimant has become disabled having regard to the nature of employment he used to do earlier and though he can do labour work but not of the kind he used to do before the accident had taken place.

9 Being aggrieved by the impugned order 31st July, 2013 passed by the Commissioner, present appeal filed by appellant was admitted on 3rd January, 2014 on the following substantial question of law:-

Whether on account of mis-appreciation of the pleadings and misreading of the oral as well as documentary evidence available on record, the findings recorded by the Commissioner below are erroneous and as such the judgment and decree impugned in this appeal being perverse and vitiated is not legally sustainable?

10 I have heard learned counsel for parties and have gone through record.

11 Contention raised on behalf of appellant that ignoring self claim of age of 21 years by claimant, the Commissioner held the age of claimant as 18 years. This plea is not sustainable because claim of age of 21 years of claimant was disputed by appellant itself and appellant had produced the School Leaving Certificate Ext.R1 which was put to claimant during the cross-examination and claimant had admitted his date of birth as mentioned in School Leaving Certificate produced by appellant indicating that on 1.1.2004 claimant was of 18 years of age.

12 Learned counsel for appellant has contended that disability certificate Ext.PW2/A though indicates that claimant had suffered permanent disability to the extent of 45% but there is no mention with regard to loss of earning on account of such injury as is required to be certified by the Qualified Medical Practitioner under the provisions of Workmen Compensation Act/Employees Compensation Act, 1923. It has been contended that in case of loss of two phalanges of middle finger and guillotine amputation of tip of thumb without loss of bone, as per Part-II in Schedule I of the Act, loss of earning capacity has been provided at Sr. No. 32 and 10-A at the rate of 9% and 10% respectively. Therefore, it has been contended that considering the loss of earning capacity as 100% is in conflict with provisions of the Act and therefore there is an error of law apparent on the face of record in impugned award.

13 It has been contended that as per provisions of Section 4 of the Act, when injuries and loss of earning capacity has been specified in Part-II of Schedule-I of the Act, the compensation would be payable as per the percentage of loss of earning capacity provided in the said Schedule for such injury, whereas in the present case, ignoring the said provisions, compensation has been awarded on the basis of Section 4(1)(b) of the Act by taking the disability causing permanent total disablement on account of injuries in question, by awarding amount equal to 60% of the monthly wages of the injured employee multiplied by relevant factor. Therefore, it has been submitted that instead of considering 60% of monthly wages, loss of earning of 19% of monthly wages of injured employee was to be taken into consideration for determining the quantum of compensation.

14 It has been further submitted that Dr. Amarjeet Singh, examined as PW2 by claimant, in his statement, nowhere stated about percentage of loss of earning capacity of claimant on account of disability suffered by him. Further that in his cross-examination, PW2 Dr. Amarjeet Singh has categorically admitted that disability certificate Ext.PW2/A was not a certificate issued under the Employees Compensation Act, 1923 with further admission that there is Schedule of percentage of disability in the Employees Compensation Act, 1923.

15 It has been contended that in absence of quantification of loss of earning by producing relevant certificate in consonance with provisions of Employees Compensation Act, 1923 the loss of earning capacity is to be considered as per Part-II of Schedule-I of the Act, which becomes 9+10=19% for loss of two phalanges of middle finger and guillotine amputation of tip of thumb without loss of bone.

16 Learned counsel for claimant/employee has submitted that it has been rightly observed by the Commissioner that though claimant can do other small labour work but is not capable of doing the job which he was doing prior to receiving the injures and therefore loss of 100% earning capacity has been rightly considered by the Compensation Commissioner by applying 60% of monthly wages for quantification to be multiplied with relevant factor provided in Schedule-IV of the Act. It has been contended that Explanations I and II, of Section 4(1)(c) of the Act clearly indicate that where there are more than one injury caused by the same accident, the amount of compensation payable shall be aggregated but without exceeding the amount of compensation which would have been payable for permanent total disablement as provided under Section 4(i)(b) of the Act and, therefore, it has been submitted that compensation is not to be determined only on the basis of two injuries being referred by appellant but also for impact of extensor tenolysis which has been done on threshold side of the right hand suggesting that hand is not flexible as it used to be earlier. It has been further submitted that for aforesaid nature of injury, claimant, even if considered to be a Helper to Machine Operator, would not be able to mix the plastic granules for supplying to Machine Operator in the factory and, therefore, loss of earning capacity is not to be considered only on the basis of Schedule-I of the Act, but also taking into consideration the loss of earning capacity on account of stiffness of hand in the nature of permanent disability causing loss of earning amounting to 100%.

17 Learned counsel for appellant has submitted that at the time of taking into consideration the Explanation-I, Explanation-II is also relevant to be considered which provides that for assessing loss of earning capacity which is to be assessed by Qualified Medical Practitioner by giving due regard to the percentage of loss of earning capacity in relation to different injuries specified in Schedule-I and therefore, claim of loss of earning based on disability certificate Ext.PW2/A is erroneous and illegal.

18 Relevant provisions of Section 4 of the Act in present matter read as under:-

“4. Amount of compensation.—(1)Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:

(a) where death amount equal to fifty per cent. of the monthly results an from wages of the deceased employee multiplied by the injury the relevant factor;

or

an amount of one lakh and twenty thousand rupees, whichever is more;

(b) where permanent total an amount equal to sixty per cent. of the monthly disablement wages of the injured employee multiplied by the results from the relevant factor; injury

or

an amount of one lakh and forty thousand rupees, whichever is more;

Provided that the Central Government may, by notification in the Official Gazette, from time to time, enhance the amount of compensation mentioned in clauses (a) and (b).Explanation I.— For the purposes of clause (a) and clause (b), "relevant factor", in relation to a employee means the factor specified in the second column of Schedule IV against the entry in the first column of that Schedule specifying the number of years which are the same as the completed years of the age of the employee on his last birthday immediately preceding the date on which the compensation fell due.

(c) where permanent partial disablement result from the injury

(i) in the case of an injury specified in Part II of Schedule I such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that 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 I.— Where more injuries than one are caused by the same accident, the amount of compensation payable under this head shall be aggregated but not so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries.

Explanation II.— 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;…….”

19 For admitting the age of 18 years of claimant, factor 226.38, as provided in Schedule IV of the Act, has been rightly applied by the Compensation Commissioner.

20 Admittedly, there is no certificate or assessment of loss of earning capacity issued by the Qualified Medical Practitioner, on account of 45% permanent disability suffered by claimant in the accident in reference. For loss of two phalanges of middle finger and guillotine amputation of thumb without loss of bone, Schedule-I provides total 19% of loss of earning capacity. At Sr. No.4 of Part-II of Schedule-1 for loss of hand or thumb or four fingers of one hand or amputation from (11.43 Cms.) below tip of olecranon has been provided as 60% and in Sr. No.5 for loss of thumb, loss of earning capacity is 30%.

21 On perusal of Section 4 of the Act read with Schedule-I and Schedule-IV of the Act, I am of the considered opinion that Compensation Commissioner has committed a mistake by considering the present case as a case of total loss of earning capacity on account of total permanent disablement especially for want of assessment of loss of earning capacity by Qualified Medical Practitioner in terms of the Act.

22 In present case, apart from providing loss of earning capacity on account of loss of two phalanges and guillotine amputation of tip of thumb as 19%, there is no percentage of loss of earning capacity provided in Schedule-I on account of permanent stiffness of the hand which was subjected to extensor tenolysis.

23 Extensor tenolysis is a surgical procedure that involves releasing the tendons of the extensor muscles in the hand and wrist. Therefore, loss of earning capacity on account of this disability has also to be taken into consideration. For the loss of hand, loss of earning capacity has been indicated as 60%. However, in present case, there is no complete loss of hand, but there is a partial impact of injury on the hand leading to stiffness. In absence of assessment of loss of earning capacity by Qualified Medical Practitioner, but for admitted facts with respect to occurrence of accident, treatment of claimant, to do the substantial justice, it would be appropriate to take into consideration, in the given facts and circumstances of the present case, the loss of earning capacity resulting on account of stiffness of hand due to the injuries suffered in the accident by the claimant during the course of his employment. It may be appropriate to add 1/6th loss of earning capacity in comparison to the total loss of hand i.e. 10%. By adding 10% and 19%, total loss of earning capacity would be 29%.

24 It is an admitted fact that after the accident, claimant was taken to the nearest hospital and thereafter to PGI Chandigarh and an employee of the appellant was deputed as an attendant to claimant and entire medical expenses were borne by appellant. Therefore, appellant may not be liable for penalty to the claimant on this count, however, for delay in the payment of compensation, appellant is liable and claimant is entitled for interest at the rate of 9% per annum from one month after the occurrence of accident till final payment of compensation or deposit thereof with the Employees Compensation Commissioner/concerned Court.

25 In view of aforesaid discussion, claimant shall be entitled for compensation as under:-

Monthly wages as per provision of Act           =              4700/-

Age at the time of accident                               =              18 years.

Relevant Factor                                                   226.38

Total Compensation                           =(4700 X 29%)= 1363/-

1363X226.28 = 3,08,55/-.

26 It appears from the record that appellant has deposited Rs.6,38,392/- with the Employees Compensation Commissioner on 20.12.2013. Therefore, amount deposited by appellant in excess than entitlement of the claimant, shall be refunded to appellant. However, in case of deficiency, balance amount shall be paid by appellant on or before 30th June, 2025 with the Commissioner or in the Registry of this Court with information to the claimant. The amount, if any released already in favour of claimant, shall also be taken into consideration at the time of calculating excess or balance amount as the case may be.

Accordingly, the appeal is allowed in aforesaid terms and disposed of accordingly including all pending miscellaneous application(s), if any.