Mysore Sugar Co. Ltd. Vs. Siddaramaiah B.G. - Court Judgment

Excerpt:
- income tax act,1961[c.a.no.43/1961] -- sections 158-ba & 143: [v.gopala gowda & arali nagaraj, jj] assessment same income which was assessed as undisclosed income for block period in block assessment - held, the assessment of undisclosed income relating to block period shall have to be made only in accordance with the provisions of chapter xiv-b of income-tax act, 1961; which provide special procedure for such assessment and that the total undisclosed income relating to the block period which is assessed under the said chapter shall not be included in the regular assessment of any previous year included in the block period. hence, the same income which was assessed as the undisclosed income for the block period could not be assessed even on protective basis. 1. this appeal by the employer sugar company at mandya is directed against the judgment and award dated july 20, 1992 made by the commissioner for workmen's compensation ('the commissioner' for short) granting compensation of rs. 18,469/- to the respondent under the workmen's compensation act ('the act' for short). 2. the appellant has challenged the impugned award of the commissioner on three grounds; namely, the commissioner had erred in holding that : (i) the respondent was workman of the appellant; (ii) he suffered the injury from an accident arising out of and in course of his employment; and '(iii) he is entitled to compensation for the non-schedule injury in the absence of any loss in his earning capacity. 3. heard. 4. as regards the first two objections raised by the learned counsel for the appellant that the respondent was not a workman under the appellant and that the fracture injury caused to his left hand in the accident occurred on may 8, 1991 5 within the premises of the appellant factory due to the fall which appellant had from his scooter while riding it, did not arise out of and in course of employment, 1 do not find much substance. there is the evidence of respondent given be fore the commissioner that he had been working under the appellant as assistant cane superintendent and that at the time of accident, after inspecting the sugarcane lands at different spots in the factory premises in due course of is performance of his duty he was going towards the factory, guest house to attend some meeting which was convened by his superior to discuss on the sub'ect of procurement of sugarcane to i the factory it is further in his evidence that as 20 assistant sugarcane superintendent of appellant factory his duty was of executive nature to carry on supervision and inspection of the sugarcane procured for the factory. this evidence of respondent has been believed and acted upon 25 by the commissioner who rightly answered the material points raised by him in respondent's favour holding that the latter was a worker under the appellant and he did suffer fractured injury in his left hand due to fall from his scooter 30 which occurred out of and in course of his employment. 5. as regards the next objection of appellant directed against the validity of award of compensation to respondent by the commissioner, there is the evidence of dr. rajanna of mandya hospital on the nature of disablement in the respondent's injured left hand as a result of its fracture injury. the commissioner has justifiably held that his evidence coupled with the undisputed medical record of ex. p2 case-sheet and ex. ps x-ray film of the said hospital establish that in the said accident respondent did sustain cornmunated fracture of radius in his left 45 hand which was healed completely leaving slight deformity of mal-union. dr.raianna has estimated this disability at 1 5 %. on the basis of this medical evidence the commissioner further reached his conclusion that respondent suffers 5o loss of earning capacity to the extent of 20% and 1 1 17 accordingly he has calculated and granted the said compensation to him. 6. it was vehemently contended by the appellant's learned counsel that indisputably the said injury suffered by the respondent was non-schedule injury inasmuch as it does not find place in the list of injuries specified in part 11 of schedule 1 to the act, and there being no proof 0 of any loss of earning capacity suffered by respondent the commissioner has seriously erred in law in estimating the loss of earning capacity in respondent at 20% and thereby awarding him the said compensation. of course, as rightly 5 submitted by him there is n(i definite evidence, whatever, available on record for the commissioner specifically in proof of respondent suffering any loss in his earning capacity in his present employment or in relation to any other 10 employment which he was capable of undertaking. 7. therefore, the material question which calls for determination is : whether the grant of compensation by the commissioner to the respondent-claimant for mere physical disability in his left hand resulting from the said injury is legally justified indisputably, the said injury caused to the left hand of the respondent is non-schedule injury in the sense it does not find mention in part 11 of schedule 1 to the act. therefore it falls is within the purview of clause (ii) section 4(1)(c) of act which deals with payment of compensation in respect of non-schedule injury caused to a workman. section 4(1)(c)(ii) runs thus : '4. amount of compensation : (1) subject to the provisions this act, the amount of compensation shall be as follows, namely : (a) .............. (b) .............. (c) where permanent partial disablement results from the injury (i) ............ (ii) in the case of an injury not specified in schedule 1, such percentage of the compensation payable in the case of permanent total disablement as proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury : explanation : i................. explanation : ii ................' the 'partial disablement' resulting from an employment injury contemplated under section 4(1)(c) is definition by section 2(1)(g) of the act, thus : ''partial disablement means where the disablement is of a temporary nature, such disablement as reduces the earning capacity of 2i 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 2,, in every employment which he was capable of undertaking at that time; provided that every injury specified in part 11 of schedule 1 shall be deemed to result in permanent partial disablement.' 8. a plain reading of material provisions under section 4(1)(c)(ii) and section 2(1)(g) makes the legal position crystal clear that mere physical disability caused to a workman resulting from an employment injury without in any manner affecting his earning capacity in any employment in which he was engaged at the time of accident, or in every employment which he was capable of undertaking at that time is not by itself a sufficient ground entitling him to claim compensation under the act. wis legal proposition finds support from a division bench decision of the calcutta high court in calcutta elec. supply corporation v. habul 4,, chandra dass (1968-11-llj-769). their lordships have held in that case that in case of non-schedule injury suffered by the workman out of and in course of employment resulting in his physical disability no compensation can be si granted for any such physical disability unless it is further proved that by reason of the disablement the workman suffered loss of earning capacity as a matter of fact. it is observed therein that, proof must he furnished by the evidence, 'which establishes that the workman is as a result of the injury unable to earn as such he did before'. in that case, referring to the definition of 'partial disablement' contained in section 2(1)(g) of the act, their lordships made the fol) lowing pertinent observation at para 4 of the judgment : 'it is difficult to understand what the commissioner means, by saying that according 5 to this definition the workman was suffering from some permanent partial disablement. ' the definition itself shows that 'partial disablement' of a permanent nature must be such as reduces the earning capacity of the 3 workman in every employment which he was capable of undertaking. it is not a scheduled injury and therefore, the reduction in earning capacity will have to be proved as a fact. we have repeatedly pointed out that the s loss of earning capacity is not necessarily coextensive with the loss of physical capacity-even if we assume that there was physical disability or 'permanent partial disablement' as the commissioner calls it, still we have 3 repeatedly pointed out that the workmen's compensation act is not interested in mere physical disability. no compensation can be granted for any physical disability unless there was also loss of earning capacity. 9. the claimant's case for compensation is required to be examined in the light of the above legal position. admittedly, at the time of accident the respondent-claimant had been working 3 under the appellant as asst. cane superintendent and he continues to work as such on the same terms and conditions of his service without suffering any pecuniary disadvantage, whatsoever, by reason of his said non-schedule 5 injury. it is not even his case pleaded in his claim application that by reason of disablement in his left hand resulting from the said injury he experiences any difficulty in doing his work of cane superintendent or for that matter he is ina capacitated to any degree whatever from earning in every other employment which he was capable of undertaking at the time of accident let alone by furnishing convincing proof thereof before the commissioner. thus, there is absolutely no evidence on record, oral or documentary, in proof of the material fact that as a result of the said disablement in his left hand the earning capacity of the respondent-claimant, either in his present employment as the assistant cane superintendent or in any other employment which he was capable of undertaking is reduced to any degree whatsoever. therefore, as rightly contended by learned counsel for appellant, the assessment of loss of his earning capacity made by the commissioner at 20% is without any legal basis and as such the same is 1 not sustainable in law. it, therefore, logically follows that the respondent-claimant is disentitled to grant of compensation under the act merely on the basis of the physical disablement in his hand resulting from the said injury and that the commissioner has erred in law in granting the same to him. therefore, 1 find that the appeal deserves to he allowed as prayed 10. for the foregoing reasons. the appeal is allowed. 're impugned award of the commissioner for workmen's compensation, mandya made in case no. lom-wca-cr-14191-92 dated july 20, 1992 is set aside. the claim petition of the respondent-claimant filed before the commissioner is dismissed. 11. parties to bear their own costs.