The Managing Director,Shrusthi Plastics (P) Ltd. v. B.Murugavel

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 12.08.2008CORAM:THE HONOURABLE MR.JUSTICE S.PALANIVELUC.M.A.(NPD-S) No.1225 of 2001The Managing Director,Shrusthi Plastics (P) Ltd.,B-23, 32 Mettupalayam Industrial Estate,Mettupalayam, Pondicherry – 9.... Appellant/Opposit Partyvs.B.Murugavel... Respondent/ApplicantCivil Miscellaneous Appeal filed under Section 30 of theWorkmen's Compensation Act, 1923 against the order dated 09.01.2001in W.C.No.2 of 1999 on the file of the Additional Commissioner forWorkmen's Compensation, Pondicherry.For Appellant:Mrs.D.VedaFor Respondent:No appearanceJ U D G M E N TThe respondent herein is the applicant before the AdditionalCommissioner for Workmen's Compensation, Pondicherry in W.C.No.2 of1999. 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 operatingthe injection mould machine in the factory, he suffered crush injury.Due to the accident in the course of employment, the respondentsuffered disablement to the tune of 40%. He was aged 21 years at thetime of accident and was earning a sum of Rs.800/- per month. A sumof Rs.1,00,000/- has been claimed as compensation. 2.In the objections filed by the appellant before theCommissioner for Workmen's Compensation, the employment of therespondent is not disputed. It is stated that since the respondentwas admitted to the benefits of E.S.I. at the time of accident withInsurance No.12702163, he could not seek remedy under the Workmen'sCompensation Act; therefore, the Management is not liable to pay anycompensation to the respondent. https://hcservices.ecourts.gov.in/hcservices/

3.At the time of admission of the appeal, this Courtformulated the following substantial questions of law:"(i)Whether an injury to a workman caused byhis deliberately disregarding safety instructions andmeasures, still be held to be an accident.?(ii)Whether "degree of disability" and "loss ofearning capacity" can be held to be the same?(iii)In the event of a claim fordisablement compensation on account of an allegedaccident, can the Authority decide the loss ofearning capacity on the basis of the 'functionaldisability', certified six months after the allegedaccident by a Doctor even without his beingexamined?"4.The Additional Commissioner for Workmen's Compensationframed as many as six issues under which he analysed the oralevidence on record and came to the conclusion that the injury wascaused to the respondent during the course of employment and it hasbeen proved by medical evidence that the disability is about 40%. Itwas held by the Additional Commissioner that the Management is liableto pay compensation of Rs.42,760/- to the respondent together withinterest at the rate of 12% from the date of accident till the dateof realisation.5.The said order of the Additional Commissioner of Workmen'sCompensation is challenged before this court. When the case wasposted for hearing on 06.08.2008, there was no representation onbehalf of the respondent. Even though the respondent has receivedsummons as early as on 13.11.2001, so far he has not made anyappearance before this court to defend his case. Hence the matterhas been listed today 'for orders'. Even today, there is norepresentation on behalf of the respondent. Hence, this court has noother option except to pass orders in the appeal after hearing thelearned counsel for the appellant with the materials available onrecord.6.Admittedly, the accident took place on 24.08.1997, whilethe respondent was operating the injection mould machine in thefactory at 11.00 am during the course of employment.7.Learned counsel for the appellant would draw the attentionof this court to the statement of the respondent in the cross-examination before the Additional Commissioner for Workmen'sCompensation 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 afteropening the lid, that the lid is not locked and that it could beopened and closed; when the respondent removed the mould, the machinewas running, that a switch is provided to start and stop the runningof the machine; that while he took the mould out from the machine, hedid not stop the machine by switching it off and that he could notsee whether the mould was running or not.8.The above said admission of the respondent would go a longway to show that necessary safety arrangements were provided for theworkmen to work safely on the machine and indisputably it is the dutycast upon the worker to adopt them in order to operate the machineproperly. It is not stated in the evidence of the respondent thatthe lid should have been provided with a lock. Only because the lidis open, there is no chance for any accident or contact on any partof the machine. If the worker intends to work inside the machineafter opening the lid, he has to ensure whether the machine isswitched off or not and only after ensuring that the machine is inoff mode, he has to put or insert his hand into the machine to removethe mould. If the worker is in utter disregard of the simpleprocedure to be adopted before putting his hand into the machine,even though if the injury caused by the accident is in the course ofthe employment, the Management could not be held liable to paycompensation.9.In this regard, the learned counsel for the appellant citesthe relevant provision, i.e. Section 3(1) of the Workmen'sCompensation Act, 1923, which is extracted hereunder:"Employer's liability for compensation : - (1) Ifpersonal injury is caused to a workman by accident arisingout of and in the course of his employment, his employershall be liable to pay compensation in accordance with theprovisions :Provided that the employer shall not be so liable -(a)in respect of any injury which does not result inthe total or partial disablement of the workman for a periodexceeding (three) days;(b)in respect of any injury, not resulting in deathor permanent total disablement, caused by an accident whichis directly attributable to -(i)the workman having been at the timethereof under the influence of drink or drugs, or https://hcservices.ecourts.gov.in/hcservices/ (ii)the wilful disobedience of the workman toan order expressly given, or to a rule expresslyframed, for the purpose of securing the safety ofworkmen, or(iii)the wilful removal or disregard bythe workman of any safety guard or other devicewhich he knew to have been provided for the purposeof securing the safety of workmen. "10.The plainest reading of the above said provision wouldcandidly show that the disregard by the workman of the safety coveror device, which he definitely knows that it has been provided forthe purpose of securing safety if any accident takes place, it couldbe directly attributable to the workman alone and the employer shallnot 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 theManagement, i.e. to say the provision of switch, to on and off themachine and in negligent to the said safety measure, the workernamely, the respondent has inserted his hand into the machine and theaccident could easily be assignable to the negligence on his part forwhich the appellant could not be held liable.12.In the case on hand, the Additional Commissioner whilediscussing the admission on the part of the respondent in Issue No.4has observed that even though it is mentioned in his evidence,inasmuch as the accident took place out of and in the course ofemployment, the employer is liable to pay compensation. In theconsidered view of this court, the above said findings is not at allsustainable in view of Section 3(1)(b)(iii) of the Workmen'sCompensation Act, as the respondent is wholly responsible for theaccident. Even though the said accident has occurred during thecourse of employment, the employer is not liable to pay compensation.13.As far as the second substantial question of law isconcerned, as per the settled position, the degree of disability andloss of earning capacity have to be held to be the same, since theloss of earning capacity would arise only out of the permanentdisability and hence compensation under both the heads could bemerged. As far as the Doctor Certificate is concerned, the Doctorwho has issued Disability Certificate was not brought before theauthority and the document could not be termed to be even proved asper law. https://hcservices.ecourts.gov.in/hcservices/

14.The substantial questions of law framed by this court havebeen answered as stated above. Learned counsel for the appellantsubmitted that the entire compensation amount has been deposited withinterest and requested that the appellant may be permitted towithdraw the same. In view of the submission made, the appellant ispermitted 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. RegistrarabeTo :1) The Additional Commissioner, Workmen's Compensation, Pondicherry.Copy to2) The Section Officer, V.R. Section, High Court, Madras.+1 cc to Mr.Meenakshisundaram, Advocate, SR.No.44216C.M.A.(NPD-S) No.1225 of 2001CK(CO)SMK/11.9.08