Siddappa Vs. General Manager, Ksrtc - Court Judgment

Excerpt:
workmens compensation act, 1923 (central act no. 8 of 1923) - section 4(c)(i) & 4(1)(b) - permanent total disablement - though injury falls under part ii if proved that having regard to employment there is permanent total disablement, compensation payable as per iv schedule.;all that section 4(c)(i) read with part it of schedule i is that in the case of injury specified therein, the percentage of permanent total disablement to the extent specified therein must be deemed to have occurred without any further proof. that provision does not debar the payment of compensation under section 4(1)(b) if, in a given case, it is proved that though the injury suffered by a workman falls under one of the items specified in part ii, having regard to the nature of the employment in which the workman concerned was employed, there has been permanent total disablement. if such a fact is proved, notwithstanding the fact that the injury suffered by a workman is one of those specified in part ii of schedule l, he would be entitled to the compensation in accordance with the iv schedule. - karnataka rent act, 1999.[k.a. no. 34/2001]. section 3(1) :[n. kumar, j] suit for ejectment non-residential premises - maintainability - plinth area of the schedule premises being in excess of 14 sq. meters and the carpet area being less than 14 sq. meters held, plinth means the portion of a structure between the surface of the surrounding ground and surface of the floor immediately above the ground. plinth area of a premises includes the area of space beneath the walls of a building. therefore, in finding out the measurement of the non-residential premises not only the actual space available between the walls, but also the area covered by the walls has to be taken into consideration. if the space or area beneath the walls is excluded, and only the space between the walls are taken into consideration, then it is commonly called as carpet area. it means actual usable space, where one can put a carpet. therefore, plinth area and carpet area has a definite connotation and there is no ambiguity in the meaning of these words. but the legislature has not used word carpet area. they have advisedly used the word plinth area. therefore, the court has to necessarily take into consideration not only what has not been said but also what has been said in the statute. if that aspect is borne in mind, the legislature never meant to prescribe the carpet area for deciding the exclusion of the non-residential premises used for commercial purpose from the application of the karnataka rent act, 1999. it is not open to the court to substitute the word carpet area in place of plinth area used by the parliament in interpreting the aforesaid statutory provisions. if such a thing is permitted, it would amount to court re-writing the section and the reading carpet area in place of plinth area which is not permissible in law. - the commissioner has totally overlooked the fact that the best estimate of loss of earning capacity can be given by the employer himself who had the opportunity of seeing the workman at work before the accident and his capacity after the accident. mukundlal, it was held that 'in a welfare state which is being progressively industrialised, legislative measures like the act should be construed in a more liberal sense in favour of the workmen so that deserving workman gets full and speedy benefit and advantage of these beneficiary measures.balakrishna, j.1. heard. appeal admitted.2. by consent of the learned counsel on both sides, the matter is taken up for final hearing, heard and disposed of by this judgment.3. this appeal is preferred by the appellant who was a workman employed as a driver in the karnataka state road transport corporation, bangalore (herein after called 'the corporation') against the award passed by the commissioner for workmen's compensation and labour officer, hubli sub-division, hubli (hereinafter called 'the commissioner') on 16-8-1985 in no. wca/nf - 28/1983 wherein he held that the appellant is entitled to receive compensation at 60% of the permanent total disablement compensation which works out to a sum of rs. 20,160/-, put of the total claim of rs. 33,600/- together with simple interest at 6% per annum commencing from one month after the date of accident and also a penalty of 20% of the compensation awarded on account of default of the corporation in depositing the compensation awarded within 30 days of the date of accident. the grievance of the appellant is that he ought to have been awarded 100% of the permanent total disablement compensation.4. the undisputed facts of the case, briefly stated, are these :the appellant was an employee of the corporation and on 16-7-1983 while he was driving bus bearing registration no. myf 8830 from a place called byadgi to hirekerur, an on-coming luxury bus bearing registration no. tnj 7599 driven rashly and negligently collided against his vehicle at motebennur village as a consequence of which the appellant sustained severe injuries on his right leg which necessitated amputation of the right leg at its junction of middle and lower third (guilotine) in july 1983 and subsequently a revision amputation below the knee was performed by the doctorate k.m.c.hospital, hubli. at the relevant period of accident, the appellant was drawing wages of rs. 707-55 per month in the range of rs. 700-800 per month. the wage slip produced by the appellant in evidence is ex.p-1. the commissioner determined that the description of the injury fell under sl.no. 19 of schedule i and part ii of the workmen's compensation act, 1923 (hereinafter called 'the act') and that percentage of loss of earning capacity was 60% and awarded a compensation of rs. 20,160/- as against the claim of rs. 33,600/-. the corporation did not appeal against the award.5. at the time of hearina, we asked the learned counsel for the corporation as to whether the appellant has been or could be provided with any alternative employment learned counsel submitted that as a matter of fact question of finding an alternative employment to the appellant was examined and as there was no job which the appellant could do, the corporation found no alternative than to remove the appellant from service.6. the short point for consideration before us is whether the commissioner was justified in estimating the loss of earning capacity at 60% and whether the commissioner has adopted the proper basis for estimating the loss of earning capacity and whether the appellant suffered a total loss of earning as distinguished from partial loss of physical capacity and is therefore entitled to a total compensation of rs. 33,600/- instead of rs. 20,160/-.7. in order to find the answer to the question we have to look to clauses of section 4(a),(b),(c) of the act and the relevant part of schedule ii and schedule iv. they read : --4.(1) subject to the provisions of this act, the amount of compensation shall be as follows, namely : --(a) where death results from the injury and the deceased workman has been in receipt of monthly wages falling within limits shown in the first column of schedule iv-the amount shown against such limits in the second column thereof;(b) where permanent total disablement results from the injury and the injured workman has been in receipt of monthly wages falling within, limits shown in the first column of schedule iv-the amount shown against such limits in the third column thereof :(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, and(ii) in the case of an injury not specified in schedule i, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity permanently caused by the injury.part-11 list of injuries deemed to result in permanent partial disablement xxxxxxamputation cases -- lower limbs sl. no.description of injurypercentage of loss ofearning capacity 19.amputation below middlethigh to 3-1/2' below knee60 schedule iv compensation payable in certain cases monthly wagesof theworkmeninjuredamount of compensationforhalf monthly payment ascompensation for temporary disablement deathpermanent total disablement. 1234more thanbut notmore than rs.700/-rs.800/-rs.24000/-rs. 33,600160-00according to clause (b), where on account of an injury permanent disablement results, the compensation payable to the workman concerned is in accordance with iv schedule. as the monthly wages of the appellant was between rs. 700-800, the compensation payable is rs. 33,600/-.but what the commissioner did was to apply clause (c)(i). as the injury caused to the appellant resulted in amputation of appellant's right leg, he held there must be deemed to be a permanent partial disablement at 60% accordingly he held that 60% of the amount of rs. 33,600/- payable in the case of permanent total disablement was payable to the appellant. what he missed to notice was that, all that section 4(c)(i) read with part i! of schedule i is that in the case of injury specified therein, the percentage of permanent total disablement to the extent specified therein must be deemed to have occurred, without any further proof. that provision does not debar the payment of compensation under section 4(1)(b) if, in a given case, it is proved that though the injury suffered by a workman falls under one of the item specified in part ii, having regard to the nature of employment in which the workman concerned was employed, there has been permanent total disablement. if such a fact is proved, not withstanding the fact that the injury suffered by a workman is one of those specified in part ii of schedule i, he would be entitled to the compensation in accordance with the iv schedule. this point has been lost sight of by the commissioner.8. now, the next question for consideration is whether in fact the appellant has suffered permanent total disablement. the commissioner has totally overlooked the fact that the best estimate of loss of earning capacity can be given by the employer himself who had the opportunity of seeing the workman at work before the accident and his capacity after the accident. as already pointed out, the learned counsel for the corporation submitted that the appellant was found unfit for work in the corporation in any class of service after the accident and, therefore removed him from service. this established conclusively that the appellant had suffered total permanent disablement.9. the act is a beneficial legislation. in 1966(2) l.l.j. 12, m.s.e.b. v. a.i. umma it was held that 'it is desirable and in accordance with the general rule that the act should be broadly and liberally construed in order to effectuate its evident interest and purpose in the application of the provisions which govern the nature and determination of injuries for which compensation may be had'. in sarup singh v. mukundlal, it was held that 'in a welfare state which is being progressively industrialised, legislative measures like the act should be construed in a more liberal sense in favour of the workmen so that deserving workman gets full and speedy benefit and advantage of these beneficiary measures. such liberal interpretation would accomplish the human and beneficial purpose of this legislation the provisions of which have been recognised by our society and by our constitution'. as far as this case is concerned apart from liberal construction, in our opinion, even the literal construction yields the same result.10. in the result, we allow this appeal, we modify the impugned award by enhancing the compensation to rs. 33,600/- towards personal injury caused to the appellant in the accident which occurred on 16-7-83 in the course of employment. the interest shall be calculated on the sum of rs. 33,600/- at 6% per annum as awarded by the commissioner instead of on the sum of rs. 20,160/-all other reliefs granted by the commissioner are confirmed. the parties are directed to bear their own costs.