1995(1) ALL MR 88
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

R.G. VAIDHYANATHA, J.

M/S.Deep Metal Industries Vs. B.D.Gaikwad

First Appeal No.225 of 1987

11th January, 1995

Petitioner Counsel: Mrs.MEENA H.DOSHI
Respondent Counsel: Miss SEEMA SARNAIK

(A) Workmen's Compensation Act (1923), S.10. - Failure to give notice under section 10 - Sufficient cause for such failure - Court has discretion to condone absence of notice.

Workman sustained an injury in an accident while cleaning machine. Claim for compensation was resisted on ground of want of notice under section 10.

Held, in the instant case the management was aware of the accident since the accident had taken place inside the factory and this was to the knowledge of the management and management had paid the medical bills of the workman. No prejudice was caused to the management for want of formal notice. There was no legal defect in entertaining the claim petition. [Para 4]

(B) Workmen's Compensation Act (1923), S.3 - "Wilful disobedience" means something more than mere violation of a rule - Deliberate and intended disobedience with knowledge of likely injury - No wilful disobedience in this case as worker not aware of rule or instructions - Injury while oiling machine without closing it.

Where a worker lost his thumb and two fingers in an accident while oiling an engine without closing it and claim was resisted by management on ground that the worker was negligent, held.

Admittedly the legislature has used the words "wilful disobedience" and not every disobedience or violation of a rule. "Wilful disobedience" necessarily means that there is something more than mere violation of a rule. It comprehends a deliberate and intended disobedience and involves the doing of something with the knowledge or a certainty that it is likely to result in a serious injury or with reckless disregard of consequences. On evidence, found that worker was a helper, unskilled, casual worker and was not aware of rules or instructions or consequences of oiling a machine without closing it. there was no negligence on part of worker. 1981 A.C.J. 236(Mad) followed. [Para 5,6]

Cases Cited:
1981 A. C. J. 236 (Mad) [Para 5,7]
1959(1) L. L. J. 390 [Para 7]


JUDGMENT

JUDGMENT : This is an appeal against the judgment dated 20th February, 1987 in Application (WC) No.13 of 1985 on the file of Commissioner for Workmen's Compensation, IInd Labour Court, Pune. I have heard the learned Advocates appearing for both the sides.

2. The respondent was a workman in the appellant company. He sustained an injury in an accident on 11th August, 1985 while cleaning a machine. He preferred a claim petition before the Court below asking for compensation for the injury sustained during the course of employment. The same was resisted by the appellant by filing a written statement.

After enquiry, the learned lower Court has held that the respondent is entitled to compensation and awarded a total compensation of Rs.41,506.87ps. Being aggrieved by that order, the management has come up in appeal.

3. The learned Counsel for the appellant raised the following three points in support of the appeal :-

1. That the petition was not maintainable for want of notice under Section 10 of the Workmen's Compensation Act, 1923.

2. That there was negligence on the part of the workman, and therefore, the management was not liable to pay the compensation as provided in the Proviso to Section 3 of the Act.

3. That the compensation awarded is excessive and contrary to law.

On the other hand, the learned Counsel for the respondent supported the impugned order and refuted all the above three contentions. I will take up the contentions one by one.

POINT NO.1

4. No doubt, Section 10 of the Workmen's Compensation Act, 1923 (hereinafter referred to as 'the Act') provides that no claim for compensation shall be entertained by a Commissioner unless notice of the accident has been given to the management within a particular time. But there are many Provisos to this Section and we are concerned with two Provisos which are relevant for our purposes.

One of the Provisos reads as under:-

"Provided further that the want of or any defect or irregularity in a notice shall not be a bar to the entertainment of a claim."

This Proviso has been introduced by way of amendment in 1933. This Proviso makes it clear that want of notice or defect in notice or any irregularity in notice shall not be bar for entertaining the claim.

Then there is one more Proviso which provides that the Commissioner may entertain or decide any claim even though notice has not been given when he is satisfied that failure to give notice was due to sufficient cause. Hence the Commissioner has been given discretion to condone the absence of notice and award compensation.

In the instant case, the Commissioner has observed that there is sufficient cause for not giving the notice and particularly when the management is aware of the accident since the accident has taken place inside the factory and this is to the knowledge of the working partner who is also examined as a witness in this case and further the management has paid the medical bills to the workman. This clearly shows that the management was fully aware of the accident in question. No prejudice is caused to the management for want of a formal notice under Section 10(1) of the Act. Hence taking any view of the matter, there was no legal defect in entertaining the claim petition by the learned Commissioner under the Act. Hence Point No.1 is answered in the negative.

POINT NO.2

5. The learned Counsel for the appellant invited my attention to Section 3 of the Act and in particular Proviso which says that if the accident has taken place due to the negligence of the workman, then the management is not liable. The particular Proviso reads as follows :-

"the wilful disobedience of the workman to an order expressly given, or to rule expressly framed for the purpose of securing the safety of workman."

Advisedly, the Legislature has used the words "wilful disobedience" and not every disobedience or violation of rule. "Wilful disobedience" necessarily means that there is something more than mere violation of a rule. In fact, that has been explained in 1981 A.C.J.236 (Madras) which has been relied upon by the learned Counsel for the appellant. In this case it was observed that "wilful disobedience' comprehends within its scope a deliberate and intended disobedience and involves the doing of something with the knowledge or a certainty that it is likely to result in a serious injury or with a reckless disregard of the consequences.

Therefore, the question is whether on the facts of this case it can be said with any certainty that there was such wilful disobedience on the part of the respondent-claimant ?

6. The workman Gaikwad was examined in the Court below. It has been elicited in his cross-examination that he was aware that while oiling, the machine has to be closed. The learned Counsel for the appellant contended that this knowledge is sufficient to show that the workman was aware of the consequences, and therefore, if he has oiled the machine without closing it and meets with an accident, he must thank himself. Apart from the fact that such an inference is not possible from the above admission of the workman, as rightly argued by the learned Counsel for the respondent, it is a general knowledge or a common sense which was elicited from the witness that while oiling a machine has to be closed. Strangely enough, there was no question put to the witness as to whether he was aware of the consequences of such an act or about the nature of oiling the machine without closing it. On the other hand, further question put to the witness and denied by him shows that the witness was not aware of the rules or instructions in this behalf. The suggestion put to this witness and answered by him is as follows :-

"It is not true that inspite of specific instructions from the supervisor and owner I did not care to close the machine and met with the accident due to my own fault."

The answer is clear that the witness was not aware of the rules or instructions, and therefore, the earlier answer must be an answer which is given on the basis of general knowledge or common sense.

This is further clear because the workman was not a regularly employed Pressman. Though he had been working in that factory for few years, on the stand taken by the management he was not a regular workman. In the written statement filed by the management, the management has taken a specific stand in para 3 as follows :-

"The applicant was working with the Respondent as a casual worker and was employed intermittently as a helper for lifting of goods and cleaning the material etc. It is not true and correct that the applicant was working as Pressman. The Applicant was working as an unskilled worker as a Helper. On 11.8.1985 the Applicant was employed as a "Casual Labour" and was asked to work as helper to the Pressman."

It is clear that the management has taken a specific stand that the workman was only a casual labourer and he was unskilled workman and was given odd jobs including lifting of goods and cleaning of machines etc.

7. One Mr. Chougule who is a working partner of the appellant company has given evidence that while oiling machines should not be started. That the applicant put the machine in gear when he was oiling the same. That if the applicant had not operated the machine, the accident would not have occurred.

It is in evidence that the applicant was a Helper to the Press Operator viz. Suresh Mangre. The said Press Operator would have been the best witness to tell the Court circumstances in which the accident took place and the role of the workman etc.

The learned lower Court appreciated the evidence and has come to the conclusion that there was no negligence on the part of the workman. This is purely a finding of fact recorded by the lower Court. Even if another view is possible, it is not open to this Court to take a different view while hearing an appeal under Section 30 of the Act where appeals are permitted only on substantial questions of law.

The learned Counsel for the appellant relied upon 1981 A.C.J. 236 (Madras). Though the facts are somewhat similar, I find that the said decision can be distinguished since there was a specific admission by the workman that he was aware of the consequences of meddling with the machine while running it. But in the present case there is no such question put to the workman about the consequences of oiling the machine when it was running. Hence the said decision cannot be pressed into service by the appellant.

Another decision relied upon by the learned Counsel for the appellant is reported in 1959 (I) L.L.J. 390, where the High Court was concerned with the question of dispute between a principal employer and a contractor about reimbursement of the amount of compensation paid by the principal employer to certain heirs of workman who died in an accident in the factory. The workmen were not parties to the case. On facts, it was found that there was negligence on the part of the workman in remaining at the work-spot during the prohibited time inspite of siren being given. Hence on facts it was found that the workmen or their heirs were not entitled to compensation, and therefore, if the principal employer has paid the compensation, it cannot claim reimbursement from the contractor. This is a case which is decided on peculiar facts of that case and is distinguishable on facts.

8. After considering the evidence on record, I do not find any reason to differ with the finding of the Court below that there was no wilful disobedience by the workman to the instructions given by the management. Hence Point No.2 is answered in the negative.

POINT NO. 3

9. The learned lower Court has found that the workman was getting a Salary of Rs.375/- per month and he had completed 22 years of age. Then it further found that 50% of the monthly wages multiplied by the relevant factor viz. Rs. 221.37 as provided in Schedule IV comes to Rs. 41,506.87. So far there is no dispute and both the Counsel agree that this calculation is correct. However, the learned lower Court has awarded the entire amount as compensation. As rightly argued by the learned Counsel for the appellant the lower Court has committed an error of law in granting the entire amount as compensation which comes under Part I of Schedule I where 100% compensation is payable for permanent total disablement. In the instant case, it is nobody's case that the workman had permanent total disablement. The admitted case is that the workman had permanent partial disablement. It is Part II of Schedule I which is applicable to this case which has been lost sight of by the learned Commissioner for Workmen's Compensation. Under Part II for loss of thumb, under Item No.5, percentage of loss of earning capacity is 30%. In the present case, the workman has lost thumb and two other fingers. For the loss of two fingers, Item No.9 of Part II is attracted where percentage of loss of earning capacity is 20%. Hence the total loss of earning capacity due to loss of thumb and two fingers comes to 50%.

Section 4 of the Act provides rule regarding payment of compensation. We are not concerned with Sections 4(1)(a) which pertains to death and Section 4(1)(b) which pertains to permanent total disablement. We are concerned with Section 4(1)(c) which provides for permanent partial disablement resulting from the injury. The compensation payable in the case of an injury specified in Part II of Schedule I is such percentage of the compensation depending upon the loss of earning capacity out of the amount of compensation payable calculated under Section 4(1)(b) of the Act.

The learned lower Court was correct in calculating the total payable compensation under Section 4(1)(b) at Rs. 41,506.87/-. But since it is a case of permanent partial disablement and the disability is 50% of the loss of earning capacity, in view of Section 4(1)(c) the amount of compensation payable would be 50% of Rs.41,506.87/- which comes to Rs.20,753.44/-. Therefore, the learned lower Court was wrong in awarding the entire amount of compensation of Rs.41,506.87/-, but it should be Rs.20,753.44/-. Point No.3 is answered accordingly.

10. In the result, the appeal is partly allowed. The amount of compensation awarded by the lower Court is modified and reduced to Rs.20,753.44/-. This amount shall be paid to the workman out of the amount deposited by the management and the balance of the amount shall be refunded to the appellant-management. In view of partial success of the parties, there will be no order as to costs.

C.C. expedited.

Appeal partly allowed.