IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.08.2008 CORAM: THE HONOURABLE MR.JUSTICE S.PALANIVELU C.M.A.(NPD-S) No.1225 of 2001 The Managing Director, Shrusthi Plastics (P) Ltd., B-23, 32 Mettupalayam Industrial Estate, Mettupalayam, Pondicherry – 9. ... Appellant/Opposit Party vs. B.Murugavel ... Respondent/Applicant Civil Miscellaneous Appeal filed under Section 30 of the Workmen's Compensation Act, 1923 against the order dated 09.01.2001 in W.C.No.2 of 1999 on the file of the Additional Commissioner for Workmen's Compensation, Pondicherry. For Appellant : Mrs.D.Veda For Respondent : No appearance J U D G M E N T The respondent herein is the applicant before the Additional Commissioner for Workmen's Compensation, Pondicherry in W.C.No.2 of 1999. He joined the services of the appellant as 'machine operator' in the year 1996. On 24.08.1997, at 11.00 am, while he was operating the injection mould machine in the factory, he suffered crush injury. Due to the accident in the course of employment, the respondent suffered disablement to the tune of 40%. He was aged 21 years at the time of accident and was earning a sum of Rs.800/- per month. A sum of Rs.1,00,000/- has been claimed as compensation. 2. In the objections filed by the appellant before the Commissioner for Workmen's Compensation, the employment of the respondent is not disputed. It is stated that since the respondent was admitted to the benefits of E.S.I. at the time of accident with Insurance No.12702163, he could not seek remedy under the Workmen's Compensation Act; therefore, the Management is not liable to pay any compensation to the respondent. https://hcservices.ecourts.gov.in/hcservices/ 3. At the time of admission of the appeal, this Court formulated the following substantial questions of law: "(i) Whether an injury to a workman caused by his deliberately disregarding safety instructions and measures, still be held to be an accident.? (ii) Whether "degree of disability" and "loss of earning capacity" can be held to be the same? (iii) In the event of a claim for disablement compensation on account of an alleged accident, can the Authority decide the loss of earning capacity on the basis of the 'functional disability', certified six months after the alleged accident by a Doctor even without his being examined?" 4. The Additional Commissioner for Workmen's Compensation framed as many as six issues under which he analysed the oral evidence on record and came to the conclusion that the injury was caused to the respondent during the course of employment and it has been proved by medical evidence that the disability is about 40%. It was held by the Additional Commissioner that the Management is liable to pay compensation of Rs.42,760/- to the respondent together with interest at the rate of 12% from the date of accident till the date of realisation. 5. The said order of the Additional Commissioner of Workmen's Compensation is challenged before this court. When the case was posted for hearing on 06.08.2008, there was no representation on behalf of the respondent. Even though the respondent has received summons as early as on 13.11.2001, so far he has not made any appearance before this court to defend his case. Hence the matter has been listed today 'for orders'. Even today, there is no representation on behalf of the respondent. Hence, this court has no other option except to pass orders in the appeal after hearing the learned counsel for the appellant with the materials available on record. 6. Admittedly, the accident took place on 24.08.1997, while the respondent was operating the injection mould machine in the factory at 11.00 am during the course of employment. 7. Learned counsel for the appellant would draw the attention of this court to the statement of the respondent in the cross- examination before the Additional Commissioner for Workmen's Compensation which goes to the effect that the machine mould is https://hcservices.ecourts.gov.in/hcservices/ provided with lid, that the mould has to be removed only after opening the lid, that the lid is not locked and that it could be opened and closed; when the respondent removed the mould, the machine was running, that a switch is provided to start and stop the running of the machine; that while he took the mould out from the machine, he did not stop the machine by switching it off and that he could not see whether the mould was running or not. 8. The above said admission of the respondent would go a long way to show that necessary safety arrangements were provided for the workmen to work safely on the machine and indisputably it is the duty cast upon the worker to adopt them in order to operate the machine properly. It is not stated in the evidence of the respondent that the lid should have been provided with a lock. Only because the lid is open, there is no chance for any accident or contact on any part of the machine. If the worker intends to work inside the machine after opening the lid, he has to ensure whether the machine is switched off or not and only after ensuring that the machine is in off mode, he has to put or insert his hand into the machine to remove the mould. If the worker is in utter disregard of the simple procedure to be adopted before putting his hand into the machine, even though if the injury caused by the accident is in the course of the employment, the Management could not be held liable to pay compensation. 9. In this regard, the learned counsel for the appellant cites the relevant provision, i.e. Section 3(1) of the Workmen's Compensation Act, 1923, which is extracted hereunder: "Employer's liability for compensation : - (1) If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions : Provided that the employer shall not be so liable - (a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding (three) days; (b) in respect of any injury, not resulting in death or permanent total disablement, caused by an accident which is directly attributable to - (i) the workman having been at the time thereof under the influence of drink or drugs, or https://hcservices.ecourts.gov.in/hcservices/ (ii) the wilful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workmen, or (iii) the wilful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workmen. " 10. The plainest reading of the above said provision would candidly show that the disregard by the workman of the safety cover or device, which he definitely knows that it has been provided for the purpose of securing safety if any accident takes place, it could be directly attributable to the workman alone and the employer shall not be liable to compensate the workman. 11. Coming to the facts of this case as adverted to supra, knowing fully well that safety measures have been provided by the Management, i.e. to say the provision of switch, to on and off the machine and in negligent to the said safety measure, the worker namely, the respondent has inserted his hand into the machine and the accident could easily be assignable to the negligence on his part for which the appellant could not be held liable. 12. In the case on hand, the Additional Commissioner while discussing the admission on the part of the respondent in Issue No.4 has observed that even though it is mentioned in his evidence, inasmuch as the accident took place out of and in the course of employment, the employer is liable to pay compensation. In the considered view of this court, the above said findings is not at all sustainable in view of Section 3(1)(b)(iii) of the Workmen's Compensation Act, as the respondent is wholly responsible for the accident. Even though the said accident has occurred during the course of employment, the employer is not liable to pay compensation. 13. As far as the second substantial question of law is concerned, as per the settled position, the degree of disability and loss of earning capacity have to be held to be the same, since the loss of earning capacity would arise only out of the permanent disability and hence compensation under both the heads could be merged. As far as the Doctor Certificate is concerned, the Doctor who has issued Disability Certificate was not brought before the authority and the document could not be termed to be even proved as per law. https://hcservices.ecourts.gov.in/hcservices/ 14. The substantial questions of law framed by this court have been answered as stated above. Learned counsel for the appellant submitted that the entire compensation amount has been deposited with interest and requested that the appellant may be permitted to withdraw the same. In view of the submission made, the appellant is permitted to withdraw the entire compensation amount with interest. In fine, the Civil Miscellaneous Appeal is allowed. No costs. Sd/- Asst. Registrar /true copy/ Sub Asst. Registrar abe To : 1) The Additional Commissioner, Workmen's Compensation, Pondicherry. Copy to 2) The Section Officer, V.R. Section, High Court, Madras. +1 cc to Mr.Meenakshisundaram, Advocate, SR.No.44216 C.M.A.(NPD-S) No.1225 of 2001 CK(CO) SMK/11.9.08 https://hcservices.ecourts.gov.in/hcservices/