Ramai Singh vs Bharamal Dairy Farm, Prop. Amrit Lal Makhija

Hon''ble Shri Justice A.K. Shrivastava

Feeling aggrieved by the order passed by learned Commissioner for Workmen''s Compensation Act in Case No. 60/98/Non Fatal this appeal u/s 30 of the Workmen''s Compensation Act (for short, the WC Act) has been filed at the instance of workman. No exhaustive statements of fact are required to be narrated for the purpose of disposal of this appeal since elaborately they have been mentioned in paras 2 and 3 of the impugned award. Suffice it to say that appellant is claiming to be the workman of respondent and according to him he was employed to cut the fodder for the animals by chopping machine. Further it has been pleaded that during the course of his employment an accident has arisen in which his right hand came in the machine and it was amputated below the elbow. Since the employer did not pay or deposited the compensation as required under the provisions of WC Act, the appellant submitted an application before the Commissioner.

The written statement was filed by the employer and the averments made in the application were denied. The employer has also denied the factum of employment and has categorically pleaded that appellant was never employed under his employment and hence it has been prayed that application be dismissed.

After framing necessary issues and recording the evidence of the parties the learned Commissioner has rejected the claim application holding that appellant has not proved that he is working under the employment of the respondent-employer and the accident has arisen during the course of his employment.

The contention of learned counsel for the appellant is that contrary to the evidence and by mis-interpreting the material piece of evidence, the claim of the appellant has been rejected.

On the other hand Smt. Shobha Menon, learned senior counsel argued in support of the impugned order and submitted that as per the findings recorded by learned Commissioner, appellant''s own father Swaroop Singh has categorically stated that appellant was not under the employment of the respondent and if that would be the position, certainly there is no necessity to interfere in the impugned order and this appeal be dismissed.

Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed.

On bare perusal of the pleadings of the appellant, it is gathered that categorically he has stated that he is under the employment of the respondent and was drawing monthly wages Rs. 1000/- per month. Further it is the case of the appellant that the work to chop the fodder for animals was being provided to the appellant which he was discharging. Categorically it was stated in his testimony by the appellant that he was under the employment of the respondent and on the fateful day, i.e. 21.10.1996 when he was chopping the fodder, his right hand wringled in the machine as a result of which his right hand was amputated and separated from his body below the elbow. It has also been categorically stated by him that he was drawing wages to the extent of Rs. 1000/- per month. The appellant has also proved his age to be 21 years on the date of accident. The appellant was cross examined at length but nothing carved out from his testimony in order to hold that he was not under the employment of the respondent or the accident has not arisen during the course of his employment. On the contrary, it is borne out from his testimony that after the accident had taken place, the employer carried him to the Hospital and provided medical facilities. According to me, if respondent was not the employer of the appellant and the accident did not occur during course of his employment, why he would have carried the appellant to the Hospital and was providing him medical aid. Thus, the conduct of the respondent itself shows that humanity in his heart is still there and in order to save the life of his employee (appellant) he carried him to the Hospital.

The evidence of the appellant is further corroborated by the evidence of his father Swaroop Singh who has also stated that appellant told him that accident has arisen during the course of his employment when he was chopping the fodder in the machine. This witness was also cross examined at length but nothing has been carved out in order to disbelieve him. This witness as well as the claimant/appellant himself has also stated that respondent was requesting and insisting not to lodge any report to the police and they will provide ex-gratia amount of Rs. 1,00,000/- and further told that he will not remove the appellant from his job. Despite the assurance was being given by the respondent, no amount of compensation has been paid to the appellant.

The evidence of the appellant is also corroborated by the evidence of another witness Chhote Yadav who was also present at the time of accident. Respondent Amrit Lal Makhija also examined himself. According to him, the dairy farm is in the name of his father who is now no more in the world, but the said dairy is still in his name. According to him, the owner of the dairy is his mother. He also says that he is not acquainted with the appellant and he is not carrying the business of dairy farm and, hence, he does not know whether appellant was employed in the said dairy or not. However, he has stated that a criminal case has been registered against him in which it is alleged by the appellant that while discharging his duties, his right hand has been amputated. The respondent has put his inability how and in what manner the hand of the appellant has been amputated. In cross examination he has admitted that business of dairy was carried out by his father who had died in the year 1982. Since respondent has admitted that the dairy was of his father, according to me, after the death of his father, being son he will jointly become the owner along with other heirs and, therefore, it cannot be said that respondent is not the owner of the said dairy in which appellant was in the employment. Since total ignorance has been made by the respondent in his testimony in regard to the employment of the appellant and whether the accident arose during the course of his employment and particularly when there is specific and very firm evidence of the appellant and his witnesses in this regard, I am of the view that the only inference which is to be drawn is that appellant is the workman of the respondent and he was drawing wages to the extent of Rs. 1000/- per month and during the course of his employment the accident arose in which his right hand was amputated below the elbow.

The appellant has also examined Dr. B.K. Dang who has given the certificate Ex. P/1. Thus, I am not having any scintilla of doubt in my mind that the appellant on the date of accident was under the employment of the respondent and the accident arose during the course of his employment in which his right hand was amputated below the elbow. It is also proved that appellant was drawing wages Rs. 1000/- per month.

Since the right hand below the elbow of the appellant has been amputated, according to Schedule IV, it would be a permanent disability. At this juncture, Smt. Menon, learned senior counsel submits that it cannot be said that appellant has become 100% disabled. However, I do not find any merit in the contention for the simple reason that earlier to the accident the appellant was a labour and was discharging the task of chopping the fodder. Since his right hand has been amputated now he cannot chope the fodder or could do any other work so as to earn his livelihood and for him such disablement would be 100%. My view is supported by two decisions of Supreme Court, they are Raj Kumar Vs. Ajay Kumar and Another, and S. Suresh Vs. Oriental Insurance Co. Ltd. and Another, . Recently, the Supreme Court in Mohan Soni Vs. Ram Avtar Tomar and Others, has also held and decided the same proposition. Hence, I am of the view that disablement of the appellant is 100%.

So far as the contention of learned senior counsel that finding of learned Commissioner that appellant''s own father has admitted that appellant was not under the employment of the respondent is concerned, suffice it to say that his evidence has been twisted and has been misread. I have gone through the testimony of father of the appellant namely Swaroop Singh. In cross examination he has simply stated that he did not see the appellant operating the fodder machine. According to me, this piece of evidence cannot be stretched to the extent that appellant was not under the employment of the respondent because father was not required to see for the whole day that how and in what manner his son is discharging his work.

For the reasons stated hereinabove, I am of the view that the impugned order passed by learned Commissioner dismissing the claim application of the appellant cannot be allowed to remain stand. The claim application of the appellant is hereby allowed. Further it is hereby held that appellant has sustained disability of 100%. The appellant shall also be entitled for the penalty to the extent of 10% and interest @ 9% per annum from the date of the accident. What should be the actual figure of compensation, for that limited purpose the case is sent back to learned Commissioner to compute the exact figure including the 10% penalty and 9% interest part. Parties are hereby directed to appear before the Commissioner on 17.12.2012. Registry is hereby directed to send the record posthaste so as to reach to the Commissioner much prior to 17.12.2012. The appeal is accordingly allowed with costs. Counsel fee Rs. 2000/-, if pre-certified.