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 against 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 @ 6% p.a. from the date of accident till the date of deposit.
2. The facts of the case in brief are that Sri Kaveri, present appellant was working as a labourer in crushing stones in Rajeshwari Granites. According to the claimant, the claimant, in the application originally made stated, that he was getting monthly wages to the tune of Rs. 300/-per month. It may be mentioned here that the admitted position between the parties is that at a later stage an application was made for amendment amending the claim petition and 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 claimants 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 other workman Sri Kuppuswamy did explode and the applicant was directed to remove the same. The applicants 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 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% 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 26-5-1988. 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 Sri Kuppuswamy were not their employees. Respondent denied the applicant to be their employee or workman. They 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 res pendents-establishment? If so, the accident arose 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 to?
On consideration of the material evidences on record, the Workmen'sCompensation Commissioner held that.--
(a) Applicant was a workman under the respondents-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 claimants monthly wages were Rs. 600/- p.m. He appears to have been 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/-. 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 Officer 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 May 1984 and on this ground he opined that age and wage criteria will not apply. He took the view that old Schedule 4 might be applicable and determined the compensation to be Rs. 15,200/- and as such awarded it.
3. The workmen/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 Sri S. Ratnasabapathi, Counsel for appellant and Sri A.V. Srinivas, learned Counsel for respondent at great length.
5. Learned Counsel for the appellant firstly contended that the loss was 100%. There was total disability. It was a case of total disablement and not of partial disablement and disablement was 100%. 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 Srinivas Sabata and Another, and he also made reference to the decision of the High Court of Mysore in the case of Hutti Gold Mines Company v Ratnam . Learned Counsel further contended thattaking 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., workmen. He actually made a mistake. He did not record any specific finding and he ignored from considering the evidences of workmen's witnesses P.W. 3-Kumaraswamy 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 applicants evidence coupled with that of Kumaraswamy's really establishes that his monthly wages was Rs. 600/- p.m. and not Rs. 300/- p.m. 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/- p.m. 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% as required by law from the respondents.
6. On behalf of the respondent these contentions made by the appellant has 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 the case of Hutti Gold Mines, supra, is also not applicable to the facts of the present case. As regards the second contention of the learned Counsel for the appellant-applicant, 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 really respondents had never 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 expression shall be interpreted as defined thereunder and they may be defined as thereunder'.
Section 2(1)(g) defines partial disablement as:
'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;'.
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 for 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, amount to one hundred percent 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 I Schedule, it is provided if the aggregate percentage of loss of earning capacity from those injuries specified in Part II comes 100% 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 are 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% 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 some thing shall be deemed to have been done or to be deemed to be in existence then after ascertaining thepurpose for which it have been resorted, full effect must be given to the deeming clauses and the legal fiction created thereby. But the deeming provisions has to be confined to the matters to which it refers. Deeming clauses is used also to put beyond doubt the meaning which otherwise 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 M/s. Voltas Limited, Bombay v Union of India and Others.
9. Their Lordships of the Supreme Court in the case of M/s. Voltas Limited, supra, has 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 Dwelling Company Limited v Finsbury Borough Council, 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 Limited v Union of India, M. Venugopal v Divisional Manager, Life Insurance Corporation of India, Machilipatnam, Andhra Pradesh and recently in the case of Harish Tandon v Additional Magistrate, Allahabad, 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 Section33, 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 RestrictiveTrade Practices.....
To keep such trade practice beyond controversy in any proceedings, a deeming clause has been introduced in such sub-section (1) of Section 33, saying that they shall be deemed to 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 Section 2(1)(g) and 2(1)(j) of the Act in context the two provisos in Sections 2(1)(g) and 2(1)(j) 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 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 and one hand and 1/2 an inch of palm. The percentage of loss of earning capacity is to be deemed to be 60% and the list of injuries also provided 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%. That being so, the compensation that could be awarded and could be assessed under Section 4(1)(c) as then existed i.e., prior to its amendment by Act 22 of 1984 which read as under:
Whether permanent partial disablement result 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 workmen.
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 alongwith deposition of Kumaraswamy clearly establishes that the monthly wages of the workmen were Rs. 600/- per month. No contrary documentary evidence has been produced by the respondents. I prefer to rely on the statement of applicant's supportedby Kumaraswamy and I hold that the monthly wages of the appellant were Rs. 600/- p.m. In case of a workman getting monthly wages of Rs. 600/- p.m., in case of permanent total disablement under the Schedule IV as it then existed a sum of Rs. 30,240/- would have been payable as compensation. As mentioned earlier that injury in 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%, the claimant could have no doubt been entitled to 60% 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 lesser. Really, the claimant has been entitled at that time to compensation to the tune of Rs. 18,144/- in lump sum i.e., Rs. 18,150/- with interest @ 6% p.a. Statutory interest payable is 6% p.a. As regards the last contention of the learned Counsel for the appellant that penalty to the tune of 15% 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 appellant or not. The Commissioner's finding is that he was a employer 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 15,220/- to Rs. 18,150/-with interest payable thereon from the date of accident up-to-date @ 6%. The amount which has already been paid and 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 @ 6% p.a. from the date of accident till the date of payment.
12. Thus, appeal succeeds in part with cost.