Karnataka State Road Transport Corporation Vs. B.T. Somasekharaiah - Court Judgment

Excerpt:
- designs act, 2000 -- section 22(4): [n.kumar, j] transfer of suit - suit for declaration that defendants are not entitled to manufacture, sell pvc pipes which infringes rights - defendant contending that under section 19 that design registered in favour of plaintiff was not registrable -held, civil court has not been vested with jurisdiction to cancel registration of a design made under act. said power vests only with controller and high court . refusal to transfer suit to high court is therefore improper. indian designs act,2000 -- section 19 & 22: [n. kumar,j] remedies under sub-section (4) of section 22 defence set out by the defendant under section 19 trial court refusing to transfer the suit to the high court finding of the trial court, provisions of section 22(4) is not attracted held, though the civil court has been vested with the power and jurisdiction to decide the question of infringement, payment of damages and other reliefs, it has not been vested with the jurisdiction to cancel the registration of a design made under the act. the said power vests only with the controller and the high court. therefore, in a proceedings initiated by the registered proprietor for any of the reliefs to which he is entitled to under sub-section (2) of section 22 or in any suit claiming other reliefs to which he is entitled to in law, if the defendant set-up a defence and urges in addition to other grounds, grounds mentioned in section 19 for cancellation of a registered design, then the civil court shall transfer the suit or other proceeding for relief under sub-section (2) to the high court for decision. further, no discretion is left to the civil court in this matter, once the ground set-out in section 19 of the act is urged as a ground of defence. as the civil court has no jurisdiction to adjudicate the said grounds and has no jurisdiction to order for cancellation of a registered design, it shall transfer the suit or such other proceeding pending before it to the high court for decision. section 22 (2): [n. kumar, j] statutory remedy available under interpretation of the wordings in any suit or any other proceedings appearing in sub-section (2) of section 22 held, these are the legal proceedings provided under sub-section (2) of section 22. use of words any other proceeding for the relief under sub-section (2) referred to in sub-section necessarily refers to the aforesaid two types of remedies provided under the said sub-section. that is the statutory remedies. no other remedy is provided under the statute for such contraventions. further, the words any suit referred thereto refer to proceedings other than under sub-clause (b) which also include a suit. any suit referred to a suit other than the suit instituted under the act to enforce the statutory remedies provided under the act. it is a suit to enforce the common law remedies. therefore, the words in any suit or any other proceeding for relief under sub-section (2) has to be read disjunctively and not conjunctively, otherwise it leads to absurdity. when the legislature has consciously used the aforesaid two different phrases , they cannot be read to mean one and the same. each phrase has to be given its due weight and meaning. between the two phrases, all the remedies to which a registered proprietor would be entitled to is covered. in includes both the statutory remedies contained in section 22(2) of the act as well as the common law remedies. - in our view, there is no merit in this appeal and the same has to fail. 6. for reasons aforesaid, we dismiss this appeal as well as cross-objections.hiremath, j. 1. heard. the award of the commissioner is challenged by the appellant - k. s. r. t. c. contending that the commissioner has committed an error in awarding the compensation, that he has awarded ignoring the fact that the respondent-workman did accept rs. 6,635/- offered by the appellant and at any rate, the commissioner ought to have considered the fact that the workman still continues in service and has not suffered any loss in income or loss of service. 2. the workman has filed cross-objections contending that the award made by the commissioner is not adequate and that he is entitled to compensation treating the injuries suffered by him as a total disability. brief facts for the purpose of disposal of this appeal are, that the workmen respondent, a driver under the appellant - k. s. r. t. c. was driving the vehicle on 26.12.91 from tiptur to bullegatta and at about 6.00 p.m. when the driver sighted another vehicle coming opposite to him, he had to swerve it to the left side and at that time, the door near the driver's seat got itself opened and while closing it by stretching his hand, he got his thumb cut-off by one inch. the cut portion was not traced. the learned commissioner found that the injury fell under schedule i of part ii of the workman's compensation act, 1923 and awarded a total compensation of rs. 18,690/- applying the relevant table in calculating the amount of compensation. 3. on behalf of the appellant, it is urged that the learned commissioner ought to have taken into consideration the fact that the workman is still in service and has not suffered any loss of service or emoluments. she invited our attention to a decision of this court in the case of national insurance company ltd. v. vishnu 1991 ii clr 442 in which this court observed that the question as to whether a particular claimant has suffered partial disablement or total disablement should depend upon the nature of employment and further if in a given case an alternative employment is given by the same employer, that factor can be taken into account. in that case, before the court, it was not the case of the appellant that he had given any alternative employment to the respondent as he was a driver and there was amputation of his left leg. this court found that the commissioner was right in treating it as a total disablement and awarding compensation accordingly. this court also made it clear that the commissioner has power to award compensation more than what is claimed by the workman if the facts do warrant such an award. in our view, the facts of the case referred to above are not attracted in the instant case in as much as the injury now suffered by the workman in a schedule injury falling under schedule-i of part ii of the act. at item 10, the injury stated is 'loss of terminal phalanx of thumb' and the schedule says that it causes 20% loss of earning capacity. if this schedule is considered in the light of the factors to be applied for determination of compensation under section 4 of the act. what the learned commissioner has now awarded becomes the one awardable under the statute. there is absolutely no dispute over this fact. so far as the criterion laid down by this court regarding consideration of causing of permanent disability or otherwise, the same is not attracted in the instant case, though according to the respondent continues to work as a driver. 4. section 2 (g) of the act defines what is 'partial disablement' and further adds a deeming provision by stating that every injury specified in part-ii schedule-i shall be deemed to result in permanent partial disablement. hence, the commissioner has no jurisdiction to award less than what is prescribed by the statute treating a particular injury other than an injury causing permanent partial disablement. further, as rightly urged on behalf of the respondent, in considering whether a disability is partial or total the other factors may be considered to award a higher compensation but the commissioner cannot bring down the compensation and award less than what is prescribed by the statute as the minimum that is awardable. in our view, there is no merit in this appeal and the same has to fail. 5. it is the case of the respondent in the cross-objection that he must be deemed to have suffered permanent disablement and therefore commissioner ought to have awarded higher compensation as such. we find no merit in this contention either, in as much as admittedly the injury has not come in the way of workman performing his normal duties as a driver and has continued in service. 6. for reasons aforesaid, we dismiss this appeal as well as cross-objections. parties to bear their respective costs.