Smt. Kamlabai Khare vs Rajiv Acharya

P.C. Agarwal, J.—By impugned order dated 14.6.2001 Commissioner for the workmen compensation-cum-Labour Court, Dewns (Labour Court for short) has dismissed the claim of the appellant for compensation.

The appellant had claimed to be a workman employed in Shivam Textiles of which Rajiv Acharya (the respondent) has been the proprietor or employer. As per claim on 15.6.1997 appellant feeding was wool to the blue machine when her right hand was caught in the machine resulting in loss of her little finger and two pharynges of the ring finger with pulling off the skin from palm to elbow causing to her permanent disability and total loss of earning capacity. A claim for Rs. 2,00,000/- as compensation and Rs. 2,500/- for medical expenses had been submitted. The respondent had denied that the appellant had been workman employed in the unit and had sustained injury while working therein.

Before the Labour Court Smt. Kamlabai (AW 1-the appellant) herself, Smt. Shantabai (AW 2) and Devendra Singh (AW 3) were examined in support of the case of the appellant. All of them had deposed that the appellant had been working in the unit of the respondent and was injured while working there in the house of her employment. Smt. Kamlabai (AW 1) had claimed that no appointment letter had been given to her yet her attendance was being marked in the attendance register of the unit and she used to get Rs. 750/- as wages per month. Smt. Shantabai (AW 2) had also claimed that no slip for payment of wages is being given to her though her signatures are being taken in, the register maintained for payment of wages to the labours. It is noteworthy that the appellant had submitted the copies of record of criminal case started against Rajiv Acharya (the respondent) under Sections 279 and 338 of the Indian Penal Code an FIR lodged by the appellant after due investigation by the police. Among such papers, medical reports given by Government doctor had also been there. On the other hand, Rajiv Acharya (the respondent) examined as NAW 1 had denied that the appellant had been employed in his unit or was injured while working there. The learned Labour Court surprisingly has believed Rajiv Acharya (NAW 1) and has dismissed the claim of the appellant on the ground that she had failed to produce or call the attendance register and other records maintained by Rajiv Acharya (the respondent) to prove that she had been working in his unit. Certainly, the approach of the Labour Court had been faulty. Such record was in possession and custody of Rajiv Archarya (the respondent) and he should have himself produced the same before the Labour Court to substantiate his rebuttal or denial. On evidence on record it was well proved that the appellant had been employed in the unit of Rajiv Acharya (the respondent) as a workman and had been injured in an accident arising out of or in course of her employment. Thus, the claim of the appellant should have been allowed.

As per Schedule I to the Act of 1923 loss of little finger meant 7% of loss of earning capacity while of two fellingam of ring finger meant 6% loss of earning capacity. Appellant had been about 30 years of age and thus, factor of 207.98 was applicable in her case under the schedule IV of the Act. Her monthly wages had been Rs. 750/-. Thus, she is entitled to Rs. 750 � 207.98 � 13/100 = Rs. 20,278 = 05 or Rs. 20,300/- plus Rs. 250/- i.e. Rs. 22,800/- (Rupees Twenty Two Thousand Eight Hundred Only) in lump-sum with interest @ 12% per annum since 15/7/1997 and 25% of penalty u/s 4-A of the Act. Appeal is allowed to that extent.