JUDGMENT
Hari Nath Tilhari, J.
1. This appeal arises from the judgment and order dated 27.10.1992 delivered by the Workmen’s Compensation Commissioner, Bangalore, Sub-Division II, in case No. 16 of 1989, Kaveri v. G. Markanda Naidu whereby the Workmen’s Compensation Commissioner has awarded a sum of Rs. 15,200/- as the lump sum compensation with interest at the rate of 6 per cent per annum from the date of accident till the date of deposit.
2. The facts of the case in brief are that Kaveri, present appellant, was working as a labourer for crushing stones in Rajeshwari Granites. The claimant, in the application originally made, had stated that he was getting monthly wages to the tune of Rs. 300/-. It may be mentioned here that the admitted position between the parties is that at a later stage an application was made for amendment in the claim petition by substituting the figure of Rs. 600/- per month as salary instead of Rs. 300/- as mentioned originally in the claim petition. In other words, the amendment was allowed and the claim of the petitioner as per amendment is that he was getting Rs. 600 per month as salary at the time of occurrence. The claimant’s case is that on 16.2.1984 at 4.00 p.m. while he was working in the quarry, the explosive, which was already placed by another workman Kuppuswamy, did not explode and the applicant was directed to remove the same. The applicant further averred that while he was removing the explosive, it exploded and applicant lost all his five fingers, i.e., the thumb and the four fingers of his right hand. The claimant, as such, had claimed compensation to the tune of Rs. 15,200/- originally which was later enhanced to Rs. 55.000/-. It may be mentioned that in the original application loss was mentioned as 60 per cent loss and so applicant did claim Rs. 15,200/- as compensation basing his claim on salary of Rs. 300/- per month but after amendment his salary was asserted to be Rs. 600/- per month and the compensation of Rs. 55,000/- was claimed. On the notice being issued, respondent filed his objections to the claim petition on 26.5.88. As stated in the written objections, the defence taken was that Rajeshwari Granite was not a proprietary concern but was a partnership firm, and that applicant and Kuppuswamy were not its employees. Respondent denied the applicant to be his employee or worker. It alleged that there was no master and servant relationship between the claimant and the respondent. It may be mentioned that to the amendment also, objections were filed. On the basis of the pleadings of the parties, Workmen’s Compensation Commissioner framed the following issues:
(1) Whether the applicant proves that he was a workman under the respondent’s establishment? If so, did the accident arise during the course of and out of employment?
(2) Whether the applicant proves the age and wage of the applicant?
(3) To what quantum of compensation the applicant is entitled?
On consideration of the material evidence on record, the Workmen’s Compensation Commissioner held that:
(a) Applicant was a workman under the respondent’s establishment and accident did arise during the course and out of employment.
(b) That there was no authentic evidence about the age of the appellant-applicant. The Commissioner did not accept the plea that the claimant’s monthly wages were Rs. 600/- p.m. He appears to have taken that the monthly wages of the appellant/applicant were Rs. 300/- p.m. His observations read:
The applicant has stated that his monthly wage was Rs. 300/-. But in the amended application he mentioned that his wage was Rs. 600/- p.m. This cannot be accepted as every worker is conscious of what he is getting daily or monthly as wages.
Though I find from the order the finding has not been specifically recorded as to the wages, the Workmen’s Compensation Commissioner has also opined that the revised Schedule/substituted Schedule which has been substituted by Act 22 of 1984 would not have been applicable as the accident did take place in February 1984 while the Schedule amendment came into effect from July 1984 and on this ground he opined that age and wage criteria will not apply. He took the view that old Schedule IV might be applicable and determined the compensation to be Rs. 15,200/- and as such awarded it.
3. The workman-appellant not being satisfied with the amount so awarded by the Workmen’s Compensation Commissioner has come up in appeal under Section 30 of the Workmen’s Compensation Act.
4. I have heard Mr. S. Rathnasabhapathi, counsel for appellant and Mr. A.V. Srinivas, counsel for respondent at great length.
5. Learned counsel for the appellant firstly contended that the loss was 100 per cent. There was total disability. It was a case of total disablement and not of partial disablement and disablement was 100 per cent. Learned counsel in support of his contention made reference to the decision of their Lordships of the Supreme Court in the case of Pratap Narain Singh Deo v. Shrinivas Sabata 1976 ACJ 141 (SC) and he also made reference to the decision of the High Court of Mysore in the case of Hani Gold Mines v. Rathnam 1964 Mysore Law Journal 85. Learned counsel further contended that taking injuries, if disablement is partial, into account, Workmen’s Compensation Commissioner has awarded the compensation too low than what appellant-applicant is entitled to. He further contended that the Workmen’s Compensation Commissioner (WCC) committed jurisdictional error or error of law of substantial nature in the process of determining the compensation to the effect that he had not applied his mind to the question of quantum of monthly wages of the applicant-appellant, i.e., workman. He actually made a mistake. He did not record any specific finding and he ignored from considering the evidence of workman’s witness Kumaraswamy, PW 3, on the question of quantum of wages of the applicant-appellant. Learned counsel for the appellant contended that Kumaraswamy in his deposition has supported the statement of the appellant-applicant which he had made as a witness and has stated that at the time of accident, appellant was getting a monthly salary of Rs. 600/-. Learned counsel contended that applicant’s evidence coupled with that of Kumaraswamy’s really establishes that his monthly wages were Rs. 600/- per month and not Rs. 300/- per month. He submitted that Kumaraswamy’s statement was unchallenged as he was not cross-examined. He further contended that assumption of the Workmen’s Compensation Commissioner without recording any finding that the wages were Rs. 300/- per month and fixation of compensation on the basis thereof suffers from substantial error of law. Learned counsel for the appellant further contended that the Workmen’s Compensation Commissioner has committed an error of law in not imposing and realising penalty to the extent of 50 per cent as required by law from the respondent.
6. On behalf of the respondent, these contentions made by the appellant have been hotly contested. Learned counsel for the respondent contended that so far as the first contention of the appellant is concerned it is based on non-consideration of a part of proviso to Section 2(1)(g) of the Workmen’s Compensation Act. Learned counsel contended that the disablement in this case could not but be partial disablement. He further contended that in view of the proviso to Section 2(1)(g) and Part II of Schedule I, the injury could be deemed to have resulted in permanent partial disablement. He further contended that in the case referred to by the counsel for the appellant above, the same was not raised at the time of trial and so Supreme Court did not permit it to be raised as will appear from the perusal in para 5. Learned counsel further contended that Haiti Gold Mines case 1964 Mysore Law Journal 85, is also not applicable to the facts of the present case. As regards the second contention of the learned Counsel for the appellant, respondent’s learned Counsel contended that the Commissioner had disbelieved the evidence in the case of applicant, i.e., of monthly salary of Rs. 600/-, as a person will know his monthly salary or wages which he would get. Learned counsel further contended that no question of undue delay did arise. He submitted that respondents had never really admitted their liability to pay any compensation. Learned counsel contended that the case of the respondents had been that the appellant-applicant was not their employee, so the question of imposing penalty did not arise and it could arise only in spite of his admitted liability if the employer failed to pay.
7. I have applied my mind to the contentions made by the parties.
8. As regards the question whether there was total disablement or partial disablement, there is no dispute on one point between the parties that as a result of accident, the appellant has lost his four fingers and the thumb. Now, the question is whether such injury can be said to result in total disablement. Learned counsel urged that it is a case of total disablement as appellant cannot carry on his daily work. What is total disablement and what is partial disablement has been defined in the Act. Section 2 of the Workmen’s Compensation Act provides that “Unless there is anything repugnant in the subject”, in the Act the expressions shall be interpreted as defined thereunder.
Section 2(1)(g) defines ‘partial disablement’ as:
‘Partial disablement’ means, 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.
(Emphasis added)
Section 2(1)(1) defines ‘total disablement’ which reads:
‘Total disablement’ means such disablement, whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement; Provided that permanent total disablement shall be deemed to result from every injury specified in Part I of Schedule I or from any combination of injuries specified in Part II thereof where the aggregate percentage of the loss of earning capacity, as specified in the said Part II against those injuries, amounts, to one hundred per cent or more;
A reading of the two provisos contained in the Clauses (g) and (1) per se carves out something from main Clauses (g) and (1) and specifically it is provided that the injuries which are specified in Part II of Schedule I shall be deemed to result in permanent partial disablement, while with reference to injuries specified in Part I of Schedule I or with reference to the disablement arising out of combination of injuries of Part II of First Schedule it is provided if the aggregate percentage of loss of earning capacity from those injuries specified in Part II comes to 100 per cent or more then they have to be deemed to result in total disablement. That with reference to the injuries specified in the Schedule the definition clause itself very clearly provides that the injuries referred to in Part II of Schedule I shall be deemed to result only in partial disablement and those contained and specified in Part I of Schedule I shall be deemed to result in total disablement or a combination of injuries in Part II resulting in 100 per cent of disablement may be taken to be total disablement. The deeming clause has got its own importance in the matter of consideration of the Schedule. The effect of deeming clause is that legislature creates a legal fiction saying that something shall be deemed to have been done or to be deemed to be in existence then after ascertaining the purpose for which it has been resorted full effect must be given to the deeming clause and the legal fiction created thereby. But the deeming provision has to be confined to the matters to which it refers. Deeming clause is used also to put beyond doubt the meaning which otherwise would be uncertain and to give a statutory thing a comprehensive description. So with respect to injuries specified in the Schedule, law specifically provides that injuries in Part II shall be always deemed to be resulting in permanent partial disablement and there is no question of any further examination or investigation. When I so observe and hold, I find support from very many decisions of their Lordships of Supreme Court including its decision in the case of Voltas Ltd. v. Union of India AIR 1995 SC 1882.
9. Their Lordships of the Supreme Court in the case of Voltas Ltd. v. Union of India AIR 1995 SC 1882, have observed in para 7 as under:
(7) The effect of a statute containing a legal fiction is by now well settled. The legislature by a statute may create a legal fiction saying that something shall be deemed to have been done which in fact and truth has not been done, but even then Court has to give full effect to such statutory fiction after examining and ascertaining as to for what purpose and between what parties such statutory fiction has been resorted to. In the well-known case of East End Dwellings Co. Ltd. v. Finsbury Borough Council (1952) AC 109 B, Lord Asquith has said:
‘If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it…. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.’
This Court in the cases of State of Bombay v. Pandurang Vinayak ; Chief Inspector of Mines v. Karam Chand Thapar ; J.K. Cotton Spinning and Weaving Mills Ltd. v. Union of India ; M. Venugopal v. Divisional Manager, Life Insurance Corporation of India, Machilipatanam ; and recently in the case of Harish Tandon v. Addl. Magistrate, Allahabad 1995 AIR SCW 453, has dealt with in detail the effect of a statutory fiction and limitation of the Court to ignore the mandate of legislature unless it is violative of any provision of the Constitution.
So far Sub-section (1) of Section 33 is concerned, it mandates that agreement covered under different clauses of Sub-section (1) of Section 33, shall be deemed for the purposes of the Act to be agreements relating to restrictive trade practices….
To keep such trade practices beyond controversy in any proceeding, a deeming clause has been introduced in Sub-section (1) of Section 33, saying that they shall be deemed to be restrictive trade practices. In this background, according to us, there is not much scope for argument that although a particular agreement is covered by one or the other clauses of Sub-section (1) of Section 33, still it shall not amount to an agreement containing conditions which can be held to be restrictive trade practices within the meaning of the Act.
These observations of their Lordships of Supreme Court very aptly apply to the matter of ‘partial injury’ or ‘total injury’ under Sections 2(1)(g) and 2(1)(1) of the Act in context with two provisos in Sections 2(1)(g) and 2(1)(1) of the Act which contain deeming clause with reference to ‘injuries’ covered by Part I or Part II of Schedule I.
10. That as regards the injuries which have been caused to the applicant in the Schedule I to the Act which has been framed with reference to Sections 2(1) and 4 of the Act in Part II of that Schedule it has been mentioned as item No. 4 indicating that loss of a hand or loss of the thumb and four fingers of one hand. The percentage of loss of earning capacity is to be deemed to be 60 per cent and the list of injuries also provides that these injuries shall be deemed to result in permanent partial disablement. When the legislature itself has so provided specifically, we have to take it that injury like the one in the present case, i.e., loss of one thumb and four fingers of one hand has resulted in partial permanent disablement to the extent of 60 per cent. That being so, the compensation that could be awarded and could be assessed under Section 4(1)(c) as it then existed, i.e., prior to its amendment by Act 22 of 1984, which reads as under:
Where permanent partial disablement results from injuries in case of an injury specified in Part II of Schedule I, such percentage of compensation which would have been payable in case of permanent total disablement as is specified therein as being percentage of loss of earning capacity caused by that injury.
Schedule 4 of the Act as it then existed provided compensation payable in case of permanent disability, with reference to the monthly wages of the workman.
11. In the present case, I am of the opinion that the Workmen’s Compensation Commissioner committed illegality in not recording a specific finding as regards monthly wages. Secondly, it committed an error of law of substantial nature in ignoring the uncontroverted testimony of the appellant’s witness Kumaraswamy. The deposition of the applicant/appellant along with deposition of Kumaraswamy clearly establishes that the wages of the workman were Rs. 600/- per month. No contrary documentary evidence has been produced by the respondents. I prefer to rely on the statement of applicant supported by Kumaraswamy and I hold that the wages of the appellant were Rs. 600/- per month. In case of a workman getting monthly wages of Rs. 600/-, in case of permanent total disablement under the 4th Schedule as it then existed, a sum of Rs. 30,240/- would have been payable as compensation. As mentioned earlier that injury in the case in hand has resulted in partial permanent disablement and is deemed to have resulted in partial permanent disablement and the percentage of disablement as indicated in Schedule I has to be deemed to be 60 per cent, the claimant could have no doubt been entitled to 60 per cent of Rs. 30,240/- which may come to a sum of Rs. 18,144/-. In my opinion, the compensation that has been awarded to the appellant to the tune of Rs. 15,200/- is less. The claimant has really been entitled at that time to compensation to the tune of Rs, 18,144/- in lump sum, i.e., Rs. 18,150 with interest at the rate of 6 per cent per annum. Statutory interest payable is 6 per cent per annum. As regards the last contention of the learned Counsel for the appellant that penalty to the tune of 50 per cent of the compensation should have been awarded, this plea should have been raised at the time of the trial. Apart from that, it has been the defence case that the claimant is not a workman with the respondent. The Commissioner’s finding is that he was an employee which has not been challenged by filing cross-objections. This point should have been pressed before the original authority. Since it has not been seriously pressed, I feel penalty need not be imposed. Appeal is allowed in part. Amount of compensation is enhanced from Rs. 15,200/- to Rs. 18, 150/- with interest payable thereon from the date of accident up-to-date at the rate of 6 per cent per annum. The amount which if has already been paid interest will not be chargeable thereon since after the date of payment. I must clarify that on the enhanced amount interest will have to be paid at the rate of 6 per cent per annum from the date of accident till the date of payment.
12. Thus, appeal succeeds in part with cost.