SADASHIV KRISHNA ADKE Vs. TIME TRADERS

JUDGEMENT

(1.) THE appellant, the original applicant, was in the employment of the respondent (the opponent)company as a coolie engaged in loading and unloading of the employers' goods. On June 23, 1980, while 16 labourers, including the applicant, were engaged in loading glass sheets bundles on a truck, a bundles fell down and crashed the left foot of the applicant. This resulted in compound fractures of middle shaft (L) tibia and fibula. The applicant was taken to the hospital. He remained in the hospital for more than two moths and has, though recovered and has, though recovered, been walking with crutches. The applicant claimed compensation on the basis of 100% loss of working capacity. The claim was disputed by the employers. Their defence was that the applicant had met with the accident as a result of his own negligence. It was denied that the applicant had become totally disaled. Further, a sum of Rs. 4,500/- was stated to have been advanced by the employers to the applicant which required to be deducted in case any amount was held payable by the employers to the applicant.

(2.) REFERRING to the evidence in the shape of a medical certificate issued by a doctor from J. J. Hospital dated April 23, 1981, in which the permanent partial disability of the applicant was estimated at 35% and the fact that the applicant was employed by the employers as a watchman at a salary or Rs. 260/- per month as against the salary of about Rs. 500 per moth, which he was earlier getting, the commissioner for workman's Compensation held that the physical disability of the applicant could be reasonably estimated at 60%. On this basis, he computed the amount of composite payable to the applicant at Rs. 18,114/- Observing that though belatedly, vouchers for payment of Rs. 5,470/- indicating payment to the applicant were product and the applicant had though denied having received those amounts, did not step into the witness box to face the cross-examination regarding the vouchers, the Commissioner held that a sum of Rs. 4,500/-should be treated as having been paid to the applicant by the employers and that amount required deduction from the amount of compensation payable. The Commissioner did not consider the case to be a fit case for imposing penalty or for directing payment of interest under Section 4a of the Workmen's Compensation Act.

(3.) AGGRIEVED by the aforesaid judgment dated October 6, 1982 of the Commissioner for workmen's Composition, the applicant has come up in appeal. The main grounds are that the court below was not justified in determining the physical disability at 60% instead of 100% claimed by him and that the payment of Rs. 4,500/- was not proved and was in any event not deductible from the amount of compensation payable. As regards interest, the claim was that the interest was required to be paid automatically once any amount was found payable as compensation under the Act. Regarding penalty, the case was that the defence put by the employers was, to say the least, most untenable. For instance, it was claimed that the accident had occurred as a result of the applicant's neglience as it as due to the mischief he was doing with other workers at the time of loading the lorry. The fact that no evidence whatsoever was produced in support of this defence shows that the defence as not boa fide. Accordingly it was urged that the lower Court was not justified in not imposing penalty under Section 4a of the Act.