The Management of Sree Lalithambika Enterprises, Salem vs S. Kailasam

Mohan, J.—Against the concurrent judgments of the additional Commissioner for Workmen''s Compensation, Coimbatore and a learned

single Judge of this Court, this Letters Patent Appeal has been preferred in so far as the respondent has been awarded compensation in a sum of

Rs. 11,020.80 under the Workmen''s Compensation Act, hereinafter referred as ''the Act''.

The respondent filed a petition u/s 10 of the Act, claiming compensation for the loss of four fingers in his left hand due to an accident which took

place on 17th August, 1978. The said accident took place in the course of the respondent''s employment in the appellant''s enterprises. The

workmen would state that he was getting a salary of Rs. 370 per mensem and he was also earning some amount by playing Veena.

The management opposed the claim inter alia on two grounds-(1) The accident took place on a day which was a holiday for the factory and (2)

In any event, by the loss of four fingers on the left hand the workman had not suffered any loss of earning capacity u/s 4(1)(c).

Both the above contentions have been negatived by the Additional Commissioner for Workmen''s Compensation and the compensation as

stated above was awarded. Aggrieved by the same A.A.O. No. 416 of 1979 was preferred to this Court. Before the learned single judge of this

Court the same points were reiterated and for the second proposition, reliance was placed on Sewa Singh v. Indian Hume Pipe Co, AIR 1964

Pun 512 where it has been held that if loss of earning power is not established the claim u/s 4(1)(c)(ii) of the Act is not maintainable and further so

long as the workmen continues in the employment in the factory and earns the same salary he could not get compensation The learned single Judge

did not agree with this ruling also and confirmed the award made by the Additional Commissioner. Hence this Letters Patent Appeal.

It is strenuously contended by Mr. Krishna Raju, learned Counsel for the appellant, that the evidence of the Manager of a Bank, who was a

disinterested witness, clearly established that the accident took place on 17th August, 1978 which was a holiday for the factory of the appellant

and the management did not ask for workman to clear the machinery. Therefore, in his submission, the accident was not ''in the course of

employment'' for the provisions of the Act to be attracted.

Secondly, it is urged that in any event, by loss of his four fingers in the left had the workman has not suffered loss of earning capacity which

alone will make the management liable for compensation u/s 4(1)(c)(ii) of the Act. Mere loss of four fingers without there being loss of earning

capacity will not be sufficient. It has been so laid down in the decision reported in Sewa Singh v. Indian Hume Pipe Co., (supra).

Mr. R. Ganesan, learned Counsel for the respondent workmen, would contend in opposition to this that in so far as a factual finding has been

rendered that the accident took place prior to the inspection of the factory by the bank officials at 11 a.m., that it would be evident from the fact

that the workman was admitted in the hospital at 9 a.m. and that, therefore, the accident was in the course of the employment.

As regards the second of the contentions, the earning capacity in future also is an important factor to be taken into consideration as has been

held by the learned Judge. Once there is loss, the statutory liability is attracted. Thus he would state that no case has been made out warranting

interference with the concurrent orders.

We have given our very careful consideration to the above arguments. We are of the view that both the points raised by the learned counsel for

the appellant are not sustainable. In this case, the evidence disclose that the accident took place round about 9:30 a.m. because by 9:40 a.m. a

medical officer by name Dr. Sundaramurthi had come to treat the workman when the latter was brought to the hospital of which due intimation was

given to the police. Therefore, though the management had examined the manager of State Bank of Travancore to the effect that he inspected the

factory at 11 a.m. on 17th August, 1978, and that it was a holiday, that will not advance the case of the appellant. Inasmuch as the accident took

place during the course of cleaning the machinery certainly it must be held to be ''in the course of employment.'' We see no reason to dislodge the

factual finding.

Coming to the scope of Section 4(1)(c)(ii) of the Act, we are of the view that the loss of earning power should not be confined only to the

present capacity because it is contended by the management that at the same salary the workman is continued in employment. That will be only

begging the question. If this were to be the law, the employer can easily evade the provision of the Act by continuing the employment of the same

terms as was enjoyed by the workmen prior to the accident. Therefore, we are unable to agree with the view taken by the Punjab high Court in

Sewa Singh v. Indian Hume Pipe Co., (supra). Nor again can it be said that if in future the workmen is compelled to seek employment at reduced

wages he can claim compensation. That would only result in the negation of the beneficial provisions of the Act which are intended to benefit

unfortunate workmen like the respondent herein. Added to this, should the management wind up its business, the workman will be in the lurch

because no person with his eyes open will give employment to a person who had suffered an injury of this kind. Therefore, this is clearly a case to

which Section 4(1)(c)(ii) of the Act would apply. Consequently, we agree with the judgment forming the subject-matter of the appeal.

In the result, the appeal is dismissed. No costs.