FA/5004/2007 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 5004 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE H.B.ANTANI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ============================================+============ = DY. DIRECTOR, GUJARAT STATE LAND DEVELOPMENT CORPN. LTD & ANR Versus GANPATSINH DABHIBHAI PATEL ============================================================== = Appearance : MR HS MUNSHAW for Appellants. MR DIPAK R DAVE for Respondent. ========================================================= = CORAM : HONOURABLE MR.JUSTICE H.B.ANTANI Date : 28/03/2008 ORAL JUDGMENT This appeal is directed against the judgment and FA/5004/2007 2/10 JUDGMENT order dated 30.11.2006 passed by the Workmen Commissioner under the Workmen Compensation Act in Workmen Compensation Application No. 50 of 2000 by which the learned Commissioner has directed the appellants to pay the respondent compensation of Rs.67,126-00 with 9% interest, penalty of Rs.33,563/- and costs of Rs.3500/-. Mr. Munshaw, learned advocate appearing for the appellants submitted that the respondent was not at all a regular or permanent employee of the appellant Gujarat State Land Development Corporation [hereinafter referred to as the Corporation] and the respondent was working as a bulldozer operator as a daily wager depending upon the availability of work and funds. The respondent met with an accident on 18.04.2000 while repairing the bulldozer and he has suffered permanent disability to the extent of 22% as his left hand was crushed in the accident. The learned Commissioner ought to have considered the aforesaid fact before awarding compensation to the tune of Rs.67,126/- to the respondent. Learned advocate submitted that there was no employer-employee relationship between the appellant and the respondent and that fact was also ignored by the learned Commissioner. He further submitted that eventhough there was no instructions from the higher authorities, the respondent on his own has tried to repair the bulldozer and he met with the accident. He further submitted that the learned Commissioner ought to have appreciated that it was not part of the duty of the respondent and he himself was responsible for the accident, and, therefore, the learned Commissioner ought not to have awarded the compensation as claimed by the respondent. Learned advocate further submitted that even the Doctor who assessed disability to FA/5004/2007 3/10 JUDGMENT the extent of 22%has not been examined and therefore also, the order passed by the learned Commissioner suffers from infirmity and it requires to be quashed and set aside. Learned advocate emphatically submitted that the amount of penalty to the tune of Rs.33,563/- is on the higher side. He submitted that it is true that discretion is given to the learned Commissioner to award penalty, but as there was no relationship of employer- employee between the appellant and respondent, the amount of compensation as well as the amount of penalty imposed on the appellant is required to be quashed and set aside. Learned advocate has placed reliance on the deposition adduced by the respondent at Exh. 13, Dineshbhai Revandas Panchal, Ex. 23 who was working as Field Supervisor with the appellant Corporation, Amit Ramanlal Pancholi Exh.24 who was working as Wheel Operator with the appellant Corporation in support of the submission that on a bare perusal of the deposition adduced by these witnesses, it becomes clear that the respondent was working as a daily wager and he, on his own, attempted to repair the bulldozer, as a result of which he met with the accident and suffered serious injuries. Learned advocate submitted that in view of the overwhelming evidence adduced in the present case, the Commissioner has committed an error in awarding compensation to the tune of Rs.67,126/- and penalty to the tune of Rs.33,563/- to the respondent, and, therefore, the same requires to be quashed and set aside. On the other hand, Mr. Dipak Dave, learned advocate for the respondent submitted that there is no infirmity in the order passed by the learned Commissioner. He submitted that there is no dispute about the fact that FA/5004/2007 4/10 JUDGMENT the accident in question took place on 18.04.2000 while the respondent was on duty, and, therefore, the contention raised by the learned advocate that there was no relationship of employer-employee between the appellant and respondent requires to be rejected. The learned advocate further submitted that section 3 of the Workmen's Compensation Act, 1923 [hereinafter referred to as the Act], which is in respect of employer's liability for compensation wherein sub-section (1) provides that 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 of this chapter. It further provides 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 (ii). the willful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of security the safety of workmen. Learned advocate submitted that the case of the respondent would fall in category (ii), i.e. willful disobedience of the workman to an order expressly given, or to a rule expressly framed because in the present case, there was no express order given to the respondent not to do a particular work, and there was no willful FA/5004/2007 5/10 JUDGMENT disobedience of an order or instruction given to the respondent. He further submitted that the respondent, with bonafide intention, attempted to repair the bulldozer which ultimately resulted in the accident and he suffered serious injuries on his left hand. Learned advocate submitted that even on perusal of section 4 of the Act, it becomes clear that the amount which is awarded by the learned Commissioner is a measly amount of Rs.67,126/- while as per section 4 of the Act, he was eligible to get an amount to the extent of Rs.90,000/-, and, therefore, even on that ground, the award does not call for any interference by this Court. He submitted that it is true that the respondent has not filed any appeal for enhancement against the order passed by the learned Commissioner but considering the fact that section 4 provides for compensation to the extent of Rs.90,000/-, the present award does not call for any interference and the appeal preferred by the appellant deserves to be dismissed. The learned advocate has placed reliance on the following judgments in support of his submissions: (i) (2006) II SCC 692 – Jilla Sahakari Kendrya Bank Maryadit v/s. Shahjadi Begum and others; (ii) (2005) 12 SCC 217 – Shyama Devi v/s. Union of India and Another. In the case of Jilla Sahakari Kendrya Bank Maryadit [supra], in paragraph 12, the Apex Court held that the definition of employer embraces within its fold not only a person who employs another either permanently or on temporary basis but also those who are in control of the workman temporarily lent or let on hire to them by the person within whom the workman has entered into a FA/5004/2007 6/10 JUDGMENT contract of service. Learned advocate for the respondent therefore submitted that the respondent was a workman and there was employer-employee relationship between the appellant and the respondent. In the case of Shyama Devi [supra], the appellant's husband was employed as a switchman at Rajhara Railway Station. A group of anti-social elements armed with deadly weapons trespassed the office of the station master and damaged railway property. The deceased, after his duty hours, reached his quarters but on hearing the commotion and finding that the office of the station master was attacked by a mob, he went out to pacify the mob, he sustained lathi-blow on his head and ultimately died as a result of the said head injury. The Apex Court held that the deceased was acting in the interest of the employer outside his duty hours. He was courageous enough to come out of his quarters even after his duty hours to save railway property and hence entitled to compensation. In the facts of the present case, learned advocate submitted that though the repairing work was not entrusted to him, the respondent was acting in the interest of the employer and, therefore, the learned Commissioner has rightly awarded compensation to the respondent and it does not call for any interference in the appeal, and the appeal is liable to be dismissed. This Court has heard Mr. Munshaw, learned Counsel of the appellant and Mr. Dave, learned advocate for the respondent, at length and in great detail. This Court has also undertaken a complete and comprehensive appreciation of all vital features of the case as well as the entire evidence on record. I have also perused the FA/5004/2007 7/10 JUDGMENT reasons assigned by the learned Commissioner while awarding compensation to the respondent to the tune of Rs.67,126/-, the deposition adduced by both the parties and produced on record of the case. The respondent was working with the appellant Corporation as a bulldozer operator. The appellant sustained injuries on 18.04.2000 when he was on duty. Doctor has assessed disability of the respondent to the tune of 22%. The learned Commissioner has considered the depositions adduced by by the respondent at Exh. 13, Dineshbhai Revandas Panchal, Ex. 23, Amit Ramanlal Pancholi Exh.24 and Rangitsinh Balusinh Parmar Exh. 28 and after considering the same, the learned Commissioner has come to the conclusion there was relationship of employer and employee between the appellant and the respondent and the accident took place during the course of employment and eventhough he was not working as a Mechanic, in a bonafide manner, he made an attempt to repair the vehicle and in the said process, he sustained serious injuries on left hand. In view of the observations of the Apex Court in the case of Shyama Devi [supra], whereby the Apex Court held that the deceased is entitled to compensation because he was acting in the interest of the employer outside his duty hours, the contention raised by the appellant has no merit. The learned Commissioner has, therefore, rightly come to the conclusion that injury was caused during the course of employment and there was employer-employee relationship between the appellant and the respondent. It has been contended by Mr. Munshaw, learned FA/5004/2007 8/10 JUDGMENT advocate for the appellant that the respondent was working as a daily wager and not in the regular employment of the appellant. However, considering the deposition adduced by the respondent vide Exh.13 and the deposition of Dineshbhai Revandas Panchal, Ex. 23 and Amit Ramanlal Pancholi Exh.24 it becomes clear that the respondent was working with the Corporation as a bulldozer operator. It has been strenuously contended on behalf of the appellant that the respondent was engaged only on contract basis for a particular season. However, the appellant could not produce any documentary evidence in support thereof. On the contrary in the deposition of the aforesaid witnesses, it has been clearly stated that the respondent was working as a bulldozer operator. Therefore, the learned Commissioner has rightly held that the respondent falls within the definition of 'workman' as provided in section 2 (1) (n) of the Act, and, therefore, the contention raised by the learned counsel for the appellant requires to be rejected and it is hereby rejected. The accident in question took place on 18.04.2000 and it occurred during the course of employment. In view of the observations of the Apex Court in the case of Jilla Sahakari Kendrya Bank Maryadit [supra] in paragraph 12 and in view of the fact that the respondent was on his duty and in the course of employment with the appellant when the accident occurred, the contention raised by the appellant that there was no relationship of employer and employee between the appellant and respondent required to be rejected, and the findings recorded by the learned Commissioner is hereby upheld. FA/5004/2007 9/10 JUDGMENT The third contention raised by the learned advocate for the appellant is that the Doctor who had assessed the disability to the extent of 22% has not been examined. Considering the provisions of the Act, the learned Commissioner has rightly held that there was no need to examine the expert to prove the disability. It was also incumbent upon the appellant to press for medical examination of the respondent who has sustained injuries. The appellant also failed to avail of that opportunity before the learned Commissioner and, therefore, the contention raised by the appellant that the Doctor was not examined by the respondent has no merit, and is liable to be rejected. Thus, considering the overwhelming evidence on record of the case, even the amount of compensation awarded to the respondent to the tune of Rs.67,126/- is a measly amount and considering section 4 of the Act, the respondent could have claimed compensation to the extent of Rs.90,000/- if an appeal was preferred against the order passed by the learned Commissioner. Be that as it may, the fact remains that the amount of compensation passed by the learned Commissioner does not call for any interference as the same is passed by the learned Commissioner after going through the entire gamut of oral deposition and documentary evidence. As regards the penalty awarded by the learned Commissioner, the learned Commissioner has rightly exercised his discretion and this Court is not inclined to interfere with the same. That apart, proviso to section 30 of the Act FA/5004/2007 10/10 JUDGMENT provides that no appeal shall lie against any order unless a substantial question of law is involved in the appeal. In the fact and circumstances of the present case, it cannot be said that the appeal involves a substantial question of law. In view of the foregoing discussions, the appeal is liable to fail, and is hereby dismissed. mathew [H.B.ANTANI, J.]