Decided on July 10,1997

LACHHMAN Appellant

Referred Judgements :-



- (1.)THIS appeal under Section 30 of the Workmen's Compensation Act, 1923 (hereinafter referred to as 'the Act') has been filed by Lachhman (hereinafter referred to as 'the claimant' ).
(2.)FACTS in this case are within narrow compass which need to be noticed in order to properly understand the case as well as for consideration of the submissions made in support of the appeal. Claimant was working as a daily rated stone dresser on Harlog Chati-Trifalghat Road Kms 0/0 to 5/0. Daily wages of the claimants were Rs. 11. 80. While working at the site due to rolling down of the stones from hill, he sustained injuries. This accident took place on May 17, 1985 at 11 A. M. Fact of the accident in question is also noticed by S. I. /s. H. O. Police Station, Ghumarwin as is evident and a copy of the report finds place at pages 9 to 10 of the trial Court file.
Claimant remained at Ghumarwin hospital for a few days, thereafter he was shifted to District Hospital, Bilaspur and subsequently to Indira Gandhi Medical College and Hospital, Shimla from where he was discharged ultimately. For treatment of injuries sustained by him, he was also taken to P. G. I. Chandigarh and record of the trial Court shows that he was running from pillar to post for payment of compensation.

After the claimant having not been paid anything, his wife addressed a communication for getting justice to the Hon'ble the Chief Justice of this Court which was taken as CWP No. 298/88, titled Vidya Devi v. State of H. P. and Ors. . On August 8, 1988 in the said civil writ petition, a Division Bench of this Court ordered that in order to given expeditious relief to the husband of the claimant, it is necessary that he be medically examined by the medical expert (s) of the I. G. M. C. and Hospital, Shimla and such opinion was further directed to be placed on the record of the case on or before August 16, 1988. Opinion given by the medical expert is there on the file wherein amongst other things one of the members had directed that petitioner need to be got examined as P. G. I. Chandigarh as for the examination that was recommended, there is no arrangement for conducting the same at Shimla. It was also ordered that the concerned respondent in the aforesaid writ petition would get the petitioner examined from the P. G. I. Chandigarh.

(3.)MEDICAL Board had opined that the claimant had lost 100% earning capacity in accordance, with the provisions of the Act. As such it was ordered by the High Court in the aforesaid writ petition that the report of the Medical Board would be placed on the record of the case pending before the Commissioner under the Workmen's Compensation Act, Shimla, Bilas-pur at Shimla within a period of two weeks from today i. e, August 17, 1988. Commissioner was directed to decide the case within a period of four weeks thereafter in accordance with law as well as in the light of the decision in case Ram Dulari Kalia v. H. P. State Electricity Board and Anr. 1987 ACT 258. Compensation determined in the course of such proceedings including the arrears, if any, was ordered to be paid to the person entitled thereto latest within two weeks thereafter and provisional payment of compensation made on the basis of the medical report was also ordered to be made within two weeks. In the aforesaid backdrop, the impugned order has been passed by the Commissioner under Workmen's Compensation Act, Shimla, Solan and Bilaspur Districts in case No. W. C. N. F. B-9/85 on September 23, 1988, whereby compensation of Rs. 3472. 45 has been ordered to be payable in favour of the claimant. While holding that this is the amount of compensation payable, interest at the rate of 6% per annum w. e. f. June 17, 1985 to August 23, 1988 had been allowed and amount of half monthly wages already paid to the claimant was ordered to be deducted.
In the present appeal the appellant is aggrieved only by non- grant of penalty on the amount of compensation under Section 4-A (3) of the Act and Sh. Sureshwar Thakur, learned counsel appearing for the claimant urged that the award of the Commissioner deserves to be modified thereby allowing penalty at 50% of the compensation which was assessed at Rs. 33552. 00. In this behalf, learned counsel appearing for the appellant referred to certain admitted facts, Accident was not in dispute as also daily wage of Rs. 11. 80 that was being paid to the claimant on Muster Roll basis by the respondent. Accident having occurred during the course of employment of the claimant with the respondent is also not disputed and this fact is further established from the communications exchanged between the Commissioner and the higher authorities of the respondent from time to time. It is also not in dispute that after the claimant having sustained injuries in the course of his employment with the respondent, he was paid half monthly wages in terms of the order of the Commissioner passed on August 6, 1986 which is at page 41 to 46 of the trial Court file. State being the employer in this case does not act like an ordinary employer in the market. As a welfare State it was expected that it would take proper care besides providing medical care as weft as assistance to the victims of the accidents like the present one. No steps appear to have been taken by the respondent under whose immediate employment the claimant was to provide him proper medical treatment. Had timely medical care been made available and the respondent acted diligently as well as properly, may be that the eye sight of the respondent may not have been damaged to the extent it was damaged, Beside this had the wife of the claim ant not represented to the Hon'ble the Chief Judge of this Court, possibility of the respondent and other functionaries of the State rising out of slumber was very remote. In fact, despite the filing of the writ petition at every step this Court had to intervene firstly by ordering the medical examination thereafter directing the respondents in the writ i. e. functionaries of the State Government to get claimant examined at Shimla and P. G. I. Chandigarh. In fact all these steps ought to have been taken by the respondent through the functionaries of the State. Re cord of the trial court further shows that the Commissioner was goading the authorities concerned from time to time to look into the matter. So much so the half monthly wages were also paid after an order that was passed in the month of June, 1986 i. e. , more than a year after the accident. This clearly indicates the callous and high handed attitude of the authorities concerned responsible for examining the matter from humanitarian point of view in addition to their legal responsibility.

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