V.S. Dave, J. - (1.) THESE two appeals arise out of the order passed by the Commissioner for Workmen's Compensation for Districts Jaipur and Tonk, dated January 20, 1986, in workman claim case No. 12 of 1985, Kanaram v. Rajasthan State Electricity Board, partly accepting the claim petition. The learned Commissioner gave an award in the amount of Rs. 32,340/ - , along with a penalty of Rs. 16,170/ - out of the total amount of Rs. 72,827.37 claimed. Kanaram preferred an appeal against disallowed part of claim, i.e., Rs. 40,487.37 and prayed for enhancement of the claim, while the appeal of the R.S.E.B. is for setting aside the claim awarded by the Commissioner as according to the R.S.E.B. claimant was not asked to climb the pole and risk his own life and thus accident did not arise out of and was not in the course of employment.
(2.) BRIEF facts giving rise to these appeals are that the claimant Kanaram was a workman employed as helper with R.S.E.B. since 1977 and was working under the control and supervision of Asstt. Engineer, R.S.E.B., Dudu, District Jaipur. On March 26, 1984, while he was discharging his duty on an electric pole he sustained severe injuries due to sudden passing of electric current in the line. He was immediately rushed to Jaipur and admitted to S.M.S. Hospital, Jaipur. He remained as indoor patient upto September 30, 1984. Both his hands had to be amputated and he became permanently disabled reducing his earning capacity by hundred per cent. A certificate to that effect was issued to him by Dr. S.C. Kasliwal, Professor and Head, S.M.S. Medical College and Hospital, Jaipur on 2nd February, 1985. Thereafter Kanaram preferred a claim for the amount of Rs. 72,827.37. This claim was contested by R.S.E.B. on various grounds. It was pleaded that the accident did not arise out of and in the course of employment, he was not asked to climb the pole and touch the live wires. He had worked contrary to the instructions ignoring all the safety measures and therefore, was not entitled to any claim. His duty was only to do patrolling and it was not expected of him to climb the pole. It was also pleaded that from the date of the accident till June, 1985, the Petitioner had been paid 50 per cent salary as compensation. Besides this, his expenses for treatment have also been paid. It was further pleaded that at best his claim, according to the Schedule existing on the date of the accident, could be for Rs. 32,340/ - out of which Rs. 4571.58 have since been paid, he was only entitled to Rs. 27,768.42. It was further pleaded that the amendment in the Schedule was brought subsequent to the date of the accident and, therefore, claim could not be paid according to the amended Schedule. Evidence was led on either side and thereafter, by the impugned order the court awarded the claim according to the unamended Schedule for the amount as mentioned above. Aggrieved by the order of Workmen's Compensation Commissioner both the parties have preferred appeals. It has been contended by Mr. Mohan Poonmiya representing the workman that the learned Commissioner has erred in not applying the amended Schedule in the present case particularly when the certificate of the doctor certifying, "that the workman has a case of bilateral amputee of hands and according to Workmen's Compensation Rules followed by E.S.I. Corporation, he is entitled to hundred per cent compensation" was issued subsequent to the amendment in the Schedule. It is submitted that under the Act the compensation could only be claimed in this case when the injuries were held to have resulted in permanent disablement. It was further submitted that there is distinction between the cases of instantaneous death and permanent disablement resulting during or after the course of treatment, in consequence of the injury caused earlier. It is further submitted that phrase 'resulted/ing from' has to be given a liberal interpretation and further that the Schedule has to be given retrospective operation in the cases like the present one. It is further submitted that hundred per cent penalty should have also been imposed instead of fifty per cent awarded by the learned Commissioner. He has placed reliance on Kasturbai Rattan Chand Gandhi v. S.S. Badole : 1974 ACJ 214(Bombay); Bimla Devi v. Union of India , 1980 (41) FLR 297; Bharat Singh v. New Delhi Tuberculosis Centre , 1986 (69) FLR 129 ; Rustom and Hornsby (I) Ltd. v. T.B. Kadam : 1975 (31) FLR 173 and State of Rajasthan v. Dhapoo : 1982 ACJ 604(Rajasthan). Explaining the case of Bimla Devi v. Union of India (supra) relied upon by the trial court, Mr. Poonmiya contended that that was not a case of permanent disablement resulting from serious injuries received by the workman prior to the Amending Act and further submitted that in the case of Bimla Devi the emphasis was laid on the rights giving rise to the cause of action. He submitted that in the instant case, cause of action accrued on account of the permanent disablement resulting from the injury sustained and therefore, even the observations made in the aforesaid case favour the claimant.
(3.) LEARNED Counsel appearing for R.S.E.B. submitted that the Respondent climbed on 11 KV pole and touched the live wires without being instructed to do so and without using the safety devices hence he risked his own life and his this conduct disentitles him to any compensation. It was further submitted that the workman has failed to show that the permanent disability was the direct result of the accident. It was submitted that the doctor who amputated both the hands has not been examined to show that it was essential to do so and that it had a direct bearing with injuries caused during the course of employment. Imposition of the penalty has also been challenged on the ground that part payment towards compensation had been made by the Board. Learned Counsel also controverted the arguments advanced on behalf of the workman regarding effect of amendment in the Schedule and submitted that retrospective operation cannot be given to the amendment to Schedule IV. Reliance was placed on Ram Lal v. Regional Manager, Food Corporation of India, Jaipur, RLW 1981 116, Vijay Ram v. Janak Raj : 1981 ACJ 84(J and K) and Madan Mohan Verma v. Mohan Lal : 1983 ACJ 231(Allahabad).;