The Management, Sree Lalithambika Enterprises vs Kailasam

T. Sathiadev, J.—This appeal is preferred against the order of the Additional Commissioner for Workmen''s Compensation, Coimbatore in

W.C. Case No. 97 of 1978, in which he has ordered that the respondent-workmen, be paid a compensation of Rs. 11,020.80 for the injuries

suffered by him during the course of his employment.

The respondent filed the petition u/s 10 of the Workmen''s Compensation Act (VIII of 1923) (hereinafter will be referred to as the ''Act'') for

the loss of four fingers in his left hand on account of the accident that took place on 17th August, 1978, in the course of the employment under

Sree Lalithambika Enterprise, Salem. He was getting a salary of Rs. 370 per month and he was also earning some amount by playing veena and

therefore for loss of earning capacity, he has filed the petition for compensation. The Management/appellant herein claimed that on 17th August,

1978, the factory was not working because, on that day, there was an inspection by the Manager of the State Rank of Travancore, Salem, and

that whatever had happened on that day, was outside the scope of employment and mainly due to the carelessness and negligence of the

respondent and further for the treatment of the respondent, a sum of Rs. 2,000 has been already spent and lastly the claim itself is not maintainable

because he has been retained in employment on the same salary and there being no earning capacity lost, the petition deserves to be dismissed.

In support of their claim, the respondent examined another workman to prove that the accident occurred in the factory on 17th August, 1978,

which resulted in his losing four fingers in his left hand and he was hospitalised and ultimately, it is only after raising a dispute in the Labour Court,

he had been allowed to remain in service and the claim made by the management that on the date of the accident, it was not working is not correct;

whereas the Management examined the Manager of State Bank of Travancore, the Medical Officer and the Manager of the factory to show that

whatever had happened in the factory on the date of the accident, was solely due to the wilful disobedience of the respondent, that the factory was

not working on that day and that there being no loss of earning capacity, and merely because there is physical injury, compensation is not payable

under the Act.

On an assessment of the evidence tendered before the Additional Commissioner for Workmen''s Compensation, he held that admittedly the

accident took place inside the factory premises on 17th August, 1978 and that it was in the course of employment, and as far loss of earning

capacity is concerned, it took into account the nature of the injury and finally held that the respondent will be entitled to the compensation as

computed by him because the disablement is a permanent one and it, being schedule injury, had resulted in loss of earning capacity.

Mr. Arunagirinathan, counsel for the appellant-Management contends that on 17th August, 1978, it was inspection day for the Bank authorities

to inspect the factory and there was no need for respondent to clean the machines on that day, and whatever he had done, was only of his own

making and hence the statutory authority had not properly appreciated the evidence. Secondly he contends that the respondent, continues to be

employed in the establishment on the same salary and when he had not suffered any loss of earning capacity, merely because, he had suffered

physical injury, compensation is not payable under the Act. Thirdly he claims that the entire approach has been based on the nature of injury

suffered and not on what was the loss of earning capacity of the respondent. In support of his contention, he relies upon the decision in Sewa Singh

v. Indian Hume Pipe Company AIR 1964 P&H 512, wherein it has been held that if loss of earning is not established, a claim u/s 4(1)(c)(ii) of the

Act is not maintainable and that so long as the workman continues in the employment of the factory and earns the same salary, he cannot get

compensation; but, however, if he is discharged by the employer and is being compelled to seek employment elsewhere at reduced wages, then he

would be entitled to prefer his claim once again under the same section as against the concerned employer under whom he was working at the time

of the accident.

On the first point, there is ample evidence to accept the claim of the respondent that the accident took place between 10 A.M. and 11 A.M. on

17th August, 1978, and that it was in the factory premises belonging to the appellant. The Manager of the factory had spoken about the

respondent being hospitalised and it is claimed that a sum of Rs. 2,000 had been spent on him for treatment. What is claimed is that he was not

authorised to do work that day; whereas respondent claimed that he was cleaning the machine and in that process his four fingers got crushed.

Being an inspection day, it is not improbable to expect one or two workmen to be called upon to clean the machines and there being acceptable

evidence to hold that the accident took place inside the factory premises on the date of inspection, it cannot be said that the finding arrived at by

the statutory authority that the accident took place in the course of his employment is in any way erroneous.

On the second point that the respondent had not suffered any loss of earning capacity because he has been still retained by the appellant on the

same wages, it is seen that the respondent had to raise a dispute before the Labour Officer, Salem, and it is only thereafter on a settlement arrived

at he had been retained in service on the same wages. The mere fact that a workman, who had suffered a schedule injury under the Act, is retained

by the Management in the factory on the same scale of pay would not deprive the workman from getting compensation under the Act. If such an

interpretation is to be given to a beneficial enactment of this nature, it would deprive the workman from deriving any compensation for injuries

suffered in the course of his employment. Only if it be shown that the resultant injury is due to the negligence of the workman and outside the scope

of employment, the entitlement to get compensation under the Act will not he available to him. For loss of injury suffered in the course of his

employment, but for the provisions of the Act, the affected worker could have maintained a claim for damages in a civil Court and it is to enable

such workman to secure compensation quickly and on a fixed basis a statutory imposition had been conceived of in the Act. Hence, to contend

that if the workman is enabled to earn the same salary, he would not be entitled to any compensation suffered during the course of his employment

would defeat the main object intended to be achieved under this enactment.

It is the third point on which Mr. Arunagirinathan, laid considerable emphasis to contend that in matters of this nature, it is not the nature of

physical injury which is the primary factor to be taken into account in awarding compensation, but the emphasis should be laid only on loss of

earning capacity of the workman. It may be that a workman may suffer certain types of injuries partial or permanent in nature, but inspite of it, if he

is allowed to be retained in service and the nature of work he discharges is not affected and his wages are not reduced, such a workman cannot

claim compensation, under the Act. It is for this contention, he relied upon the decision in Sewa Singh v. Indian Hume Pipe Company AIR 1964

P.& H. 512.

In this case, the respondent had lost his four left hand fingers and it was in the course of his employment. ''Partial disablement'' is defined u/s 2(1)

(g) of the Act to mean where the disablement is of a temporary nature, such disablement as reduces the earning capacity of a workman in any

employment in which he was engaged at the time of the accident resulting in the disablement, and where the disablement is of a permanent nature,

such disablement as reduces his earning capacity in every employment which he was capable of undertaking at that time: provided that every injury

specified in Part II of Schedule I shall be deemed to result in permanent partial disablement.

In this case, the respondent has suffered a partial disablement of permanent nature and the percentage of disability had been fixed at 41%.

Section 4(1)(c) of the Act enables the workman to claim a compensation for an injury of this nature where it is provided as follows:

(c) where permanent partial disablement results 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.

Under the Act in dealing with partial disablement of temporary nature, it has been provided that the disablement must be such as to reduce the

earning capacity of a workman in the employment ''in which'' he was engaged at the time of the accident, whereas for a disablement of permanent

nature, it is the loss of earning capacity of that workman in ''every'' employment which he was capable of undertaking at that time. In Section 4(1)

(c) of the Act, it is the percentage of loss of earning capacity caused by that injury. Hence, initially it must be found out as to what nature of injury

had been suffered by the workman. Unless the physical injury is established, he cannot get compensation. After classification of the nature of

injuries suffered, as provided in Schedule I, part I of the Act, the percentage of loss of earning capacity provided under the Act will be fixed

accordingly. When the percentage of loss of earning capacity has been statutorily provided for, it cannot still be claimed that in respect of the

injuries which are listed in Schedule I, Part I of the Act, the workman does not suffer any loss of earning capacity. In fact, it means that when a

workman is able to establish that he had suffered the injuries which are classified in Schedule I of the Act, the percentage of loss of earning

capacity as statutorily contemplated, has set in. Thereafter, on the basis of his monthly wages, the compensation amount is to be worked out as in

Schedule IV of the Act. In spite of the statute determining the loss of earning capacity, for the listed injuries which are suffered, can it still be

contended by a Management that the workman has not suffered actually loss of earning capacity? It is no doubt true that in the Act, the basis of

compensation is not on the physical injury suffered, but only on loss of earning capacity. At the same time the percentage of loss of earning

capacity is also provided under the Act. When such is the position, why should a workman be called upon to establish that he has in fact suffered

loss of earning capacity? In my view, in a beneficial enactment of this nature, wherein, an exhaustive list of nature of injuries has been incorporated

in the schedule to the Act and the percentage of loss of earning capacity is also fixed in the Act, itself, and all these aspects having been provided

for to enable the workman to get compensation under the Act, should his relief still be dependent on the further factor of his actually proving that he

will suffer or he has suffered loss of earning capacity? If a workman is not to be awarded compensation for injuries suffered in the course of his

employment merely because he is still retained in the same job, it will be the most unjust manner of depriving such a workman of getting any

compensation for what he had suffered at a time when he had contributed his labour in the factory. Emphasis laid on the words ""loss of earning

capacity in every establishment which he was capable of undertaking at that time"" is for the purpose of computing compensation by fixing a crucial

date for its determination and further the wages derived by him at the time of the accident will be the basis for compensation of compensation if he

is not able to show how much will be loss in case he was capable to carry out avocations other than that in which he was then engaged. To further

amplify, as far as the loss of his earning capacity in every employment which he was capable of undertaking at that time, it would take into account

the nature of the jobs which he was capable of carrying out on the date of the accident, irrespective of what was the nature of job he was

discharging in the concerned employment at the time of the accident. I could see no justification to hold as contended by Mr. Arunagirinathan, that

when the workman is paid the same wages, in spite of the accident, he will not be entitled to any compensation under the Act. When the intention

is to compensate the workman for the loss of injury suffered by him during the course of his employment taking into account his earning capacity, it

will be preposterous to hold that he will not get any compensation whatsoever; provided he continues to discharge the same type of job and also

continues to earn the same wages.

For compensating for the injury suffered in the course of employment, a yardstick for working out compensation has been conceived of, and

which depends on the loss of earning capacity of the workman in every establishment which he was capable of undertaking at the time of the

accident, which in turn would be referable to the nature of injuries suffered by him. What is conceived of under the Act as to form the yardstick for

computation of compensation should not be so interpreted to hold that no compensation is payable to a workman who had suffered the injuries

contemplated under the Act, on showing that he is continued to be kept in employment on the same wages.

Reliance placed on Sewa Singh v. Indian Hume Pipe Company AIR 1964 P.&H. 512, wherein it has been held that as and when later on the

workman is compelled to seek the employment elsewhere at reduced wages, he can once again claim compensation under the Act against the

previous employer would result in uncertainties for the workman to get compensation; if the establishment is closed and thereafter the injured

workman, because of the nature of injury suffered is forced to take a job at reduced wages and thereafter to maintain a petition under the Act. He

would not be able to get compensation from a defunct or a liquidated establishment. Conversely it would mean in a case wherein compensation is

secured, and later on he gets promoted or secures even a better job in another establishment after leaving the concerned establishment that the

establishment can demand return of the compensation amount. Therefore, the approach in awarding compensation under the Act, can never

depend on the injured workman continuing to get the same wages or even better wages after the injuries which may be due to his right to get

promotion or other factors. After the loss of four fingers in his left-hand, if the workman is promoted as a Foreman or as a Supervisor to a better

promoted job in the same establishment, can it be held that for the loss of the left-hand fingers, four in number, in the course of his employment, he

would not get even a single pie as compensation? The entitlement to get compensation which is statutorily ensured to him cannot be deprived of or

postponed depending on present or future earning. No workman who had suffered an accident in the course of his employment, can be told to

wait for a future development, by which time, the establishment which is liable to pay compensation may cease to exist. It is in this context, this

Court is of the opinion that in computing compensation based on the nature of physical injury, the concept of loss of earning capacity resulting out

of a physical injury had been adopted as basis, and what is conceived of as basis, cannot deprive the workman to get compensation by pleading

that he had not suffered loss of earning capacity immediately or in the near future or in any event on the date when he files the petition.

As held in Ball v. William Hunt & Sons (1912) A.C. 496, the incapacity for work would include inability to get work or in other words ""there

is incapacity for work when a man has a physical defect which makes his work unsaleable in any market"". After the loss of his four fingers in his

left-hand, if this workman is to seek his employment elsewhere at the time of the accident, to what extent, it would reduce earning capacity is the

factor to be taken into account, and in this case it has been held that ""even at the present state, his level of performance cannot be the same as his

performance as a worker in the factory before the accident"" and therefore the Additional Commissioner for Workmen Compensation has taken

into account the loss of earning capacity and has not based his conclusion solely on the physical injury suffered by the workman.

It should also not be overlooked that the respondent had to go to Labour Court, Salem and thereafter enabled himself to be retained in

service. The fact that he is at present paid the same wages as he was paid before the accident, cannot deprive him of claiming the compensation as

provided under the Act.

Compensation payable u/s 3 of the Act is not to be looked upon as an obligation being discharged by the employer as if it will be a liability

fastened on him and to be borne from and out of his assets or income or funds. The concept of compensating workmen who suffer injuries during

the course of their contribution of their labour for the purpose of employer''s trade or business is conceived of to ensure that whatever accident

arises out of or in the course of his employment, would be adequately met by the establishment.

The compensation amount is necessarily paid from and out of the earnings and assets of the establishment by the management, which is in

charge of its financial affairs. In fact and in reality, it is the contribution made by all who are associated with the establishment and who come

forward to compensate the injured co-workman. For example where bonus is paid beyond statutory limits, the surplus arrived at will be, after

deduction of such compensation paid under the Act, as one of the many deductible items. Looked at from this point of view, it is a contribution by

co-owners to those who have suffered injury, when they have worked with them. Hence, it would not be correct to approach the aspect of award

of compensation under Workmen''s Compensation Act, as if it is to come only out of the earnings of the employer or management, which claim

should be resisted by resorting to such unreasonable contentions or that an interpretation is to be adopted on the definition of ""partial disablement

u/s 2(1)(g) of the Act"", as to affect the object to be achieved by the Act.

Therefore for all the reasons stated above, this appeal is dismissed.