(a HIGH COURT OF CHHA-TTISGARH AT mmspmi ‘ Misc, AggeaJNo. 721(2005 K. Chandra Mauli APPELLANT vsnsug REspombEN'rs ‘ others Kuman‘ Chanchala Dewangan and Judgnent post for 01-5-2007 Sd/ Dhirendra Mishr ‘ — a HIGH COURT OF CHHATTISGARH AT BILASPUR ‘ Misc. Appeal N’o. 72112005 APPELLANT K. Chandra Mauli, C.K. Chandra Murali, Contractor of principal Contractor, EWS 558, Vaishalinagar, employer Non-applicant Bhilai, Distt.Durg (C.G.) No. 1 VERSUS RESPGNDENTS‘ 1. Kuman Chanchala Dewangan D/o ‘ Prakash Dewangan, aged about 24 ' years, R/o HSCL Colony, Mamda, Distt. ‘ ’ Durg(C.G.) Applicant! Claimant 2, Manager/ Managing Director, Bilhai Steel ‘ Plant, Bhilai, Distn'ct Durg (C.G.) l Principal EmployerIJD‘ Non-applicant i 1 i No. 2 3. Divisional Manager, The New India AssurancerOom. Power House, Bhilai, Distt. Durg (C.G.) i Insmer/ Non-applicant No. 3 1 . Shn Uttam Pandey, dvocate for respondent No 1 Shn A S Gaharwar Advocate for respondent No. 2. Shn P Jaiswal, Sr Advocate With Shn Sankal ‘ Ja1swa1 Advocate for the respondent No 3 , J U D G M E N T Per Dhiren‘dra Misha, J The appeHant/Non—apphcant No 1 has preferred this appeal p under Section 30 of the Worhnens Compensation Act 1923 (In i short, heremafter referred to as the Act) against the award dated 11- I } 5-2005 passed in Case No 79/Category-B/ 1/2002/W CJNon-Fatal i by Commissmner for Workmen Compensauon Labour Court Durg E (In short heremafter referred to as the Commissmner) whereby the g learned Commissmner has awarded a sum of Rs 2 37 546/- as i? compensation 1n favour of the apphcant/respondent No 1 and the appellant has been made hable for satisfying the compensation l awarded t ’ *‘ E (The parties hereinafter shall be referred to as per their descriptiondn the impugned award.) - :The' facts of the case, in brief, are that the applicant med an application for compensation on the ground that While under te , Present: ‘ Shu Amiyakant Trwan Advocate for the appellant '~ ‘ h 7/ employment of non-applicant No. 1 who was working as contractor with non-applicant No. 2, she sustained gievous injuries on 13-3- V 2002 at about L1 00 p m while $ling gravel in coak 1i15p15r of‘BEI‘lai Steel Plant at that hme, Loco Int her whlle reversmg She was gvcn treatment orstly 1n Astha Nursmg home and thereafter Govemment f lHoslntal, (Durg and dunng treatment for the safety of hfe, her leg was t amputated nom Just below the knee The non-apphcant No 1 1n hls ‘ \wntten statement demed that apphcant sustamed the above Injury dunng the course of her employment w1th hJm Gate Pass of apphcant was pmpared mmaJIy as a labour for work on Coak Oven, Coal Chemmal Department for the purpose of cleanmg Cap1ta1 Repair however, aner 1ssuance of Gate Pass, she never Jomed her dunes No work of mhng gravel on coak uppler was gomg on as alleged The _ non-apphcant also demed the cla1m of the apphcant and stated that the non-apphcant No 1 was awarded the conuact and 1n case, the ,r apphcant 1s held enntled for compensanon, then they have a nght to > ‘benndemmhed agamst the non-apphcant The Non-apphcant No 3/ msurer also demed the cla1m of the apphcant On the ba51s of pleadmgs of the respective parties, Issues were framed and the Comm1ss1oner passed the mpugned award w1th the nndmg that the apphcant who was aged 23 yea1s and was drawmg wages at the rate of Rs 2 400/ per month sustamed mJunes dunng the course of her employment w1th non-apphcant No 1 and the non- apphcant No l 1s hable for payment of compensauon of Rs 2 37 546/ to the apphcant The extent of loss of earnmg capac1ty has been assessed as 75% and the pnnclpal employer has a nght to be mdemmned by the contractor and the hab1l1ty has been saddled on non-apphcant No 1 { l‘ Learned counsel for the appellant herem submlts that the Comm1ss1oner has passed the unpugmd award by momg the documentary and oral ev1dence ava11able on record There 15 ample ewdence ava11able on record to show that the c1a1mant d1d not 'sustam the above mJunes dunng the course of her employment acc1dent occurred at a place where the apphcant was not engaged to work as she was not engaged for any work relaung to coak nppler If ‘ z J % 5 V ‘and the Gatc Pass was obtained in the nam? of the applicant forithe work of Coal Chemical Department. It is further submitted that the compensau'on has been computed on the basis of certmcate issued‘ by medical practitioner regarding injuries and disabili11'es without any assessment of loss of earning capacity and without examining the quahned medlcal practmoner 1n non-compliance of Secuon 4(1)(c)(n) of the Act It 1s also submitted that where the materials ava1lable on record would not reasonably lead to hndmg of fact, where the material piece of evidence has not been taken into consideration rwhich if Considered Would negative the hnding of fact and award is ' passed misreading of the eVidence the above nnding becomes a substantlal question of law and therefore the award 1s appellable Rehance 1s placed on the Judgment in the matters of Managing Director, 0 R.T Co Ltd -v- S. Rama Mohan Rao (1988 ACJ 184), New India Assurance Co Ltd -v- Sammayya alias M. Shanlmr and others( 1997 ACJ 185) and Sumiua Devi -v- Executive Engineer, Udar Asthan Irrigation Division, Jahanabad Goya (1997 ACJ 155) On the other hand, learned counsel for the claimant argued that the dnding of fact recorded by the Commissioner is based on documentary and oral evidence available on record as also on the admission of non—applicant that Gate Pass was issued inthe name of the applicant as a labourer of the contractor for the Work to be accOmplished in the contract workpf Bhilai Steel Plant. The above nuding is a nnding of fact and it is not open to the appeilant to assail the same in ani appeal under Section 3O of the Act so far as non- examination of the quahned medical practitioner 1s concerned ‘ :Secuon 4(1)(c)(ii) of the Act refers to the cases of inJury not spec1ned 1n Scheduled I however m the instant case, the applicant has lost her inght lnnb Just below the knee and the injuries specihed at Sr i _No 19 of Part (2) of Schedule I wherein for the inJuries of such type, 600A) loss of earning capac1ty has been specrded I have heard learned counsel for the parties ; The applicant has exammed herself as AW 1 Dropadi Bai as AW 2 DK JoshrasAW 3 and Vimal Kumar Gedam asAW 4 é ’73 ‘whereaS'non-applicant No. 1 has examined KS. Raghwan— supexvisor as NAW -1. / A.W. 1 the applicant and\A.W. 2 Dmpadi Bai have categorically stated that they were engaged by non-applicant No. 1 and Gate Passes of EX P-2 and P 4 were made in their name This fact is admitted by K S Raghwan, the wmless of non-applicant No 1 The Witnesses have further stated that as per mstructlons of thelr employer, they were engaged to spread gravel 1n raJlway lme repairing work and’at that time, one Pardesh was supervising the work ‘on behalf of the non-applicant who used to record their attendance also m attendance register Even D K Joshi AW 3 and Vimal Kumar Gedam A.W.4 who are Senior Manager, Bh1la1 Steel Plant and ‘ Inspector in TSHDiesel and Transport) of Bhilai Steel Plant, in their diary statements of Ex P-4 and Ex P—5 have Categorically stated that ’ the non-applicant No 1 was engaged m railway line repairing work Their statements were recorded by the police immediately after the " accident. A.W. 4 Vimal Gedam has categorically stated that he had given statement to the police as mentioned in Ex P—5 From his statement before the police, it is eVident that the accident occurred g; when the applicant was engaged on the work of non—apphcant No 1 and after learning about the acc1dent, he reported the matter to the l higher authorih'es and thereafter the applicant was admitted in the Hospital. Non-applicant has not produced the best evidence i.e. attendance; register of the labourers who ,were engaged by the contractor; for the work of railway line reparing/ spreading of gravel as isievident hem statement of supervisor N.A.W. 1 K.S. Raghwan. The Bhilai Steel Plant in their written statement have admitted that the non-applicant No 1 has been awarded the contract by the ; respondent No 2 The fact that non-apphcant No 1 after receivmg the intimation about the acc1dent has communicated about the same to the non—applicant No 3 the insurer also establishes that the apphcant was engaged by them for the said work Thus the argument of the counsel for the non-applicant No 1 that the Gate pass pertains to Coal Chemical Department of Bhilai Steel Plant and safety training iwas imparted to them only for the above work is concerned this ”7a contentimi has rightly not been accepted by the Commissioner in view of the fact that they have not produced any document relating to the work in which the accident occuned and secondly they did not examine Pardeshi who is stated to be Supervising the Work at the relevant time by A.W. 1 the applicant and A.W. 2 Dmpadi Bai and their statements nnd co;'bora1i0n horn the diaJy statement of Ex. P-S of A.W. 4. Thus on the basis of evidence available on record, no perversity is found in the finding of the learned Commissioner regarding accident of the applicant during the course of her employment with non-applicant No. 1. So far as the argument based on judgment in the matter of New India Assurance Company (supra), is concerned, the refelred judgment is relating to cases where the workmen sustained injuries not specined in Schedule I and where loss of earning capacity has not been specihed, however in the instant case, the injun'es sustained by the workman is specified in Section 2 of Schedule I Entry 19 and the loss of earning capacity has been assessed as. 60%). For the purpose of assessing loss of eann'ng capacity, paramount consideration is loss of earning capacity, depending on the nature of work the workman has to do and the injury as well as other surrounding circumstances and the same has to be judged by the CommiSSioner on the basis of individual cases and with due regard to the nature of avocation and disability certincate given by medical practitioner, though relevant, but the same cannot be decisive. In the instant case, it is not in dispute that the applicant is 23 years old labourer who cams her livelihood through her physical labour, her right limb below lmee has been amputated and she can walk only with crutches. Looking to the nature of job in which the application was engaged, loss of earning capacity at 75% computed by the Commissioner cannot be faulted. In the result there is no fame in the appeal. The appeal being devoid of substance is liable to be dismissed and is hereby dismissed. *1 ‘ i Sd/— f»: ’Dhirendra Mishra i r Judge rrim tj\..., A p ,7 i i