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FA/5004/2007 2/ 10 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 5004 of 2007
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.B.ANTANI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
============================================+=============
DY.
DIRECTOR, GUJARAT STATE LAND DEVELOPMENT CORPN. LTD & ANR
Versus
GANPATSINH
DABHIBHAI PATEL
===============================================================
Appearance :
MR
HS MUNSHAW for Appellants.
MR DIPAK R DAVE for
Respondent.
==========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 28/03/2008
ORAL
JUDGMENT
This appeal is
directed against the judgment and order dated 30.11.2006 passed by
the Workmen Commissioner under the Workmen Compensation Act in
Workmen Compensation Application No. 50 of 2000 by which the learned
Commissioner has directed the appellants to pay the respondent
compensation of Rs.67,126-00 with 9% interest, penalty of Rs.33,563/-
and costs of Rs.3500/-.
Mr. Munshaw,
learned advocate appearing for the appellants submitted that the
respondent was not at all a regular or permanent employee of the
appellant Gujarat State Land Development Corporation [hereinafter
referred to as the Corporation] and the respondent was working as a
bulldozer operator as a daily wager depending upon the availability
of work and funds. The respondent met with an accident on 18.04.2000
while repairing the bulldozer and he has suffered permanent
disability to the extent of 22% as his left hand was crushed in the
accident. The learned Commissioner ought to have considered the
aforesaid fact before awarding compensation to the tune of
Rs.67,126/- to the respondent. Learned advocate submitted that there
was no employer-employee relationship between the appellant and the
respondent and that fact was also ignored by the learned
Commissioner. He further submitted that eventhough there was no
instructions from the higher authorities, the respondent on his own
has tried to repair the bulldozer and he met with the accident. He
further submitted that the learned Commissioner ought to have
appreciated that it was not part of the duty of the respondent and he
himself was responsible for the accident, and, therefore, the learned
Commissioner ought not to have awarded the compensation as claimed by
the respondent. Learned advocate further submitted that even the
Doctor who assessed disability to the extent of 22%has not been
examined and therefore also, the order passed by the learned
Commissioner suffers from infirmity and it requires to be quashed and
set aside. Learned advocate emphatically submitted that the amount
of penalty to the tune of Rs.33,563/- is on the higher side. He
submitted that it is true that discretion is given to the learned
Commissioner to award penalty, but as there was no relationship of
employer-employee between the appellant and respondent, the amount of
compensation as well as the amount of penalty imposed on the
appellant is required to be quashed and set aside. Learned advocate
has placed reliance on the deposition adduced by the respondent at
Exh. 13, Dineshbhai Revandas Panchal, Ex. 23 who was working as Field
Supervisor with the appellant Corporation, Amit Ramanlal Pancholi
Exh.24 who was working as Wheel Operator with the appellant
Corporation in support of the submission that on a bare perusal of
the deposition adduced by these witnesses, it becomes clear that the
respondent was working as a daily wager and he, on his own, attempted
to repair the bulldozer, as a result of which he met with the
accident and suffered serious injuries. Learned advocate submitted
that in view of the overwhelming evidence adduced in the present
case, the Commissioner has committed an error in awarding
compensation to the tune of Rs.67,126/- and penalty to the tune of
Rs.33,563/- to the respondent, and, therefore, the same requires to
be quashed and set aside.
On the other
hand, Mr. Dipak Dave, learned advocate for the respondent submitted
that there is no infirmity in the order passed by the learned
Commissioner. He submitted that there is no dispute about the fact
that the accident in question took place on 18.04.2000 while the
respondent was on duty, and, therefore, the contention raised by the
learned advocate that there was no relationship of employer-employee
between the appellant and respondent requires to be rejected. The
learned advocate further submitted that section 3 of the Workmen’s
Compensation Act, 1923 [hereinafter referred to as the Act], which is
in respect of employer’s liability for compensation wherein
sub-section (1) provides that if personal injury is caused to a
workman by accident arising out of and in the course of his
employment, his employer shall be liable to pay compensation in
accordance with the provisions of this chapter. It further provides
that the employer shall not be so liable
(a). in respect of
any injury which does not result in the total or partial disablement
of the workman for a period exceeding three days;
(b). in respect of
any injury, not resulting in death or permanent total disablement
caused by an accident which is directly attributable to-
(i). the workman
having been at the time thereof under the influence of drink or
drugs, or
(ii). the willful
disobedience of the workman to an order expressly given, or to a rule
expressly framed, for the purpose of security the safety of workmen.
Learned advocate
submitted that the case of the respondent would fall in category
(ii), i.e. willful disobedience of the workman to an order expressly
given, or to a rule expressly framed because in the present case,
there was no express order given to the respondent not to do a
particular work, and there was no willful disobedience of an order
or instruction given to the respondent. He further submitted that the
respondent, with bonafide intention, attempted to repair the
bulldozer which ultimately resulted in the accident and he suffered
serious injuries on his left hand. Learned advocate submitted that
even on perusal of section 4 of the Act, it becomes clear that the
amount which is awarded by the learned Commissioner is a measly
amount of Rs.67,126/- while as per section 4 of the Act, he was
eligible to get an amount to the extent of Rs.90,000/-, and,
therefore, even on that ground, the award does not call for any
interference by this Court. He submitted that it is true that the
respondent has not filed any appeal for enhancement against the order
passed by the learned Commissioner but considering the fact that
section 4 provides for compensation to the extent of Rs.90,000/-, the
present award does not call for any interference and the appeal
preferred by the appellant deserves to be dismissed. The learned
advocate has placed reliance on the following judgments in support of
his submissions:
(i) (2006) II SCC
692 ? Jilla Sahakari Kendrya Bank Maryadit v/s. Shahjadi Begum and
others;
(ii) (2005) 12 SCC
217 ? Shyama Devi v/s. Union of India and Another.
In the case of
Jilla Sahakari Kendrya Bank Maryadit [supra], in paragraph 12, the
Apex Court held that the definition of employer embraces within its
fold not only a person who employs another either permanently or on
temporary basis but also those who are in control of the workman
temporarily lent or let on hire to them by the person within whom the
workman has entered into a contract of service. Learned advocate for
the respondent therefore submitted that the respondent was a workman
and there was employer-employee relationship between the appellant
and the respondent.
In the case of
Shyama Devi [supra], the appellant’s husband was employed as a
switchman at Rajhara Railway Station. A group of anti-social
elements armed with deadly weapons trespassed the office of the
station master and damaged railway property. The deceased, after his
duty hours, reached his quarters but on hearing the commotion and
finding that the office of the station master was attacked by a mob,
he went out to pacify the mob, he sustained lathi-blow on his head
and ultimately died as a result of the said head injury. The Apex
Court held that the deceased was acting in the interest of the
employer outside his duty hours. He was courageous enough to come out
of his quarters even after his duty hours to save railway property
and hence entitled to compensation. In the facts of the present case,
learned advocate submitted that though the repairing work was not
entrusted to him, the respondent was acting in the interest of the
employer and, therefore, the learned Commissioner has rightly awarded
compensation to the respondent and it does not call for any
interference in the appeal, and the appeal is liable to be dismissed.
This
Court has heard Mr. Munshaw, learned Counsel of the appellant and Mr.
Dave, learned advocate for the respondent, at length and in great
detail. This Court has also undertaken a complete and comprehensive
appreciation of all vital features of the case as well as the entire
evidence on record. I have also perused the reasons assigned by the
learned Commissioner while awarding compensation to the respondent to
the tune of Rs.67,126/-, the deposition adduced by both the parties
and produced on record of the case.
The
respondent was working with the appellant Corporation as a bulldozer
operator. The appellant sustained injuries on 18.04.2000 when he was
on duty. Doctor has assessed disability of the respondent to the tune
of 22%. The learned Commissioner has considered the depositions
adduced by by the respondent at Exh. 13, Dineshbhai Revandas
Panchal, Ex. 23, Amit Ramanlal Pancholi Exh.24 and Rangitsinh
Balusinh Parmar Exh. 28 and after considering the same, the learned
Commissioner has come to the conclusion there was relationship of
employer and employee between the appellant and the respondent and
the accident took place during the course of employment and
eventhough he was not working as a Mechanic, in a bonafide manner, he
made an attempt to repair the vehicle and in the said process, he
sustained serious injuries on left hand. In view of the observations
of the Apex Court in the case of Shyama Devi [supra], whereby the
Apex Court held that the deceased is entitled to compensation because
he was acting in the interest of the employer outside his duty hours,
the contention raised by the appellant has no merit. The learned
Commissioner has, therefore, rightly come to the conclusion that
injury was caused during the course of employment and there was
employer-employee relationship between the appellant and the
respondent.
It
has been contended by Mr. Munshaw, learned advocate for the appellant
that the respondent was working as a daily wager and not in the
regular employment of the appellant. However, considering the
deposition adduced by the respondent vide Exh.13 and the deposition
of Dineshbhai Revandas Panchal, Ex. 23 and Amit Ramanlal Pancholi
Exh.24 it becomes clear that the respondent was working with the
Corporation as a bulldozer operator. It has been strenuously
contended on behalf of the appellant that the respondent was engaged
only on contract basis for a particular season. However, the
appellant could not produce any documentary evidence in support
thereof. On the contrary in the deposition of the aforesaid
witnesses, it has been clearly stated that the respondent was working
as a bulldozer operator. Therefore, the learned Commissioner has
rightly held that the respondent falls within the definition of
‘workman’ as provided in section 2 (1) (n) of the Act, and,
therefore, the contention raised by the learned counsel for the
appellant requires to be rejected and it is hereby rejected.
The
accident in question took place on 18.04.2000 and it occurred during
the course of employment. In view of the observations of the Apex
Court in the case of Jilla Sahakari Kendrya Bank Maryadit [supra] in
paragraph 12 and in view of the fact that the respondent was on his
duty and in the course of employment with the appellant when the
accident occurred, the contention raised by the appellant that there
was no relationship of employer and employee between the appellant
and respondent required to be rejected, and the findings recorded by
the learned Commissioner is hereby upheld.
The
third contention raised by the learned advocate for the appellant is
that the Doctor who had assessed the disability to the extent of 22%
has not been examined. Considering the provisions of the Act, the
learned Commissioner has rightly held that there was no need to
examine the expert to prove the disability. It was also incumbent
upon the appellant to press for medical examination of the respondent
who has sustained injuries. The appellant also failed to avail of
that opportunity before the learned Commissioner and, therefore, the
contention raised by the appellant that the Doctor was not examined
by the respondent has no merit, and is liable to be rejected.
Thus,
considering the overwhelming evidence on record of the case, even the
amount of compensation awarded to the respondent to the tune of
Rs.67,126/- is a measly amount and considering section 4 of the Act,
the respondent could have claimed compensation to the extent of
Rs.90,000/- if an appeal was preferred against the order passed by
the learned Commissioner. Be that as it may, the fact remains that
the amount of compensation passed by the learned Commissioner does
not call for any interference as the same is passed by the learned
Commissioner after going through the entire gamut of oral deposition
and documentary evidence. As regards the penalty awarded by the
learned Commissioner, the learned Commissioner has rightly exercised
his discretion and this Court is not inclined to interfere with the
same.
That
apart, proviso to section 30 of the Act provides that no appeal shall
lie against any order unless a substantial question of law is
involved in the appeal. In the fact and circumstances of the present
case, it cannot be said that the appeal involves a substantial
question of law.
In
view of the foregoing discussions, the appeal is liable to fail, and
is hereby dismissed.
mathew [H.B.ANTANI,
J.]
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