Kashmir Singh Vs Haryana Milk Food Ltd. and Ors.

[3] FAO-1989-1999 is at the b e hest of the employer, challen g ing his liabil i ty, claiming that the claimant w as an employee of Miyan Irs h ad Ahmed-t h e contractor and thus, the ap p ellant ought not have been h eld liable.

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[4] So far as the issue raised by employer is concerned, the ans w er to the si t uation lies in the provision c o ntained under Section 12 of the Employe e ’s Compensation Act, 1923. T h e same reads as under:-

¶24

“12. Contracting .- (1) Where a ny person (hereinafter in this sec t ion referred to as the principal) i n the course of or for the purpose s of his trade or business contracts with any other person (hereinaft e r in this section referred to as th e contractor) for the execution b y or under the contractor of the w h ole or any part of any work which is ordinarily part of the trade or b usiness of the principal, the princ i pal shall be liable to pay to any * [ employee] employed in the execu t ion of the work any compensation which he would have been liabl e to pay if that *[employee] had been immediately employed by him; and where compensation is claim e d from the principal, this Act s h all apply as if references to the pr i ncipal were substituted for refere n ces to the employer except that t h e amount of compensation shal l be calculated with reference to th e wages of the *[employee] under the employer by whom he is imme d iately employed. (2) Where the principal is l iable to pay compensation under this section, he shall be entitled to be indemnified by the contracto r, or any other person from whom t h e *[employee] could have recov e red compensation and where a co n tractor who is himself a princip a l is liable to pay compensation o r to indemnify a principal under this section he shall be entitled to b e indemnified by any person stan d ing to him in the relation of a co n tractor from whom the *[emplo y ee] could have recovered compens a tion] and all questions as to the r i ght to and the amount of any s uch indemnity shall, in defaul t of

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RAJNEESH SHARMA 2025.05.20 09:43 I attest to the accuracy and integrity of this document

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3

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FAO-1063-1998 & FAO-1989-1999

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agreement, be settled by the C o mmissioner. (3) Nothing in this section shall be construed as preventin g a *[employee] from recoverin g compensation from the contra c tor instead of the principal.

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(4) This section shall not a pply in any case where the acci d ent occurred elsewhere that on, i n or about the premises on which the principal has undertaken or u s ually undertakes, as the case may be, to execute the work or whic h are otherwise under his contro l or management.”

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[5] In view of the above, appell a nt is granted liberty to recover the amount o f compensation from the emplo y er-respondent No.2.

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[6] In appeal preferred by the e mployee, grievance is against the compens a tion. On the fateful day of 11. 0 3.1993, claimant, young boy o f 18 years of a ge was working on the Bottom Press Machine. The machine w as defective , while operating, claimant re c eived injuries in which his f our fingers o f left hand got amputated.

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[7] The Claim was contested by the employer, disputing emplo y eeemployer relationship. It was pleaded t h at the workman was employe e of the contr a ctor and not that of appella n t. Relying upon Section 12, the Commiss i oner answered Issue No.1 in favour of the employee. W h ile granting compensation, the Commissi o ner held that the claimant w as disabled t o the extent of 50% and observ e d as under:-

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“In view of Section 4 of the a ct, the amount of compensatio n

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admissible to the applicant by multiplying fifty percent of th e maximum permissible mon t hly wage of Rs.1,000/- of th e applicant i.e. Rs.500/- by the relevant factor indicate d

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RAJNEESH SHARMA 2025.05.20 09:43 I attest to the accuracy and integrity of this document

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4

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FAO-1063-1998 & FAO-1989-1999

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against entry No.16 under c olumn No.I of Schedule IV i.e. 228.54, and then by mu l tiplying the quotient by th e percentage of loss of ear n ing capacity suffered by th e applicant i.e. 50, would wor k out to Rs.57,135/- as under:-

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The amount is awarded to b e paid to the applicant. ” and further awarded com p ensation, interest, penalty to the

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claimant a s under:-

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In view of my orders, respo n dent No.1 shall pay the follo w ing amount o f compensation, interest, pen a lty and expenses to the appli c ant

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workman

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Compensation Rs.57,135/- 00 P 2. Interest @ 6% from 11.03.93 to 12.01.199 8 Rs.16,560-50 P 3. Penalty @ 50% Rs.28,567-50 P 4. Expenses Rs.2,000-00 P _____________ Tot a l = Rs.1,04,263-00 P

¶44

[8] Counsel for the claimant su b mits that claimant is a young b oy of 18 ye a rs of age, who got four fingers of his left hand amputated and has been ren d ered totally disabled. The Commissioner ought to have gra n ted compens a tion taking his functional disab i lity and loss of earning capacit y to the exten t of 100%. Reliance is being pl a ced upon ratio of law laid dow n in ‘ ‘Partap Narain Singh Deo versus Srinivas Sabata and another’ repo r ted RAJNEESH SHARMA 2025.05.20 09:43 I attest to the accuracy and as AIR 1976 Supreme Court 222. integrity of this document

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5

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FAO-1063-1998 & FAO-1989-1999

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[9] I have heard counsel for t h e parties and have carefully g o ne through r e cords of the case.

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[10] Amputation of four fingers is not disputed. The precise i s sue has been dealt in ‘ Partap Narain Singh Deo’s case (supra), observin g as

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under:-

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“5. The expression "tota l disablement" has been def i ned in section 2(i) (1) of the Act as f ollows: "(1) "total disablement " means such disablement, whethe r of a temporary or per m anent nature, as incapacitate s a workman for all work w hich he was capable of performin g at the time of the accident r esulting in such disablement." It has not been disputed befo r e us that the injury was of such a nature as to cause per m anent disablement to the respon d ent, and the question for co n sideration is whether the disable m ent incapacitated the resp o ndent for all work which he w as capable of performing at the time of the accident. The Commissioner has exa m ined the question and recorded his finding as follows:

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"The injured workman in this case is carpenter by profession....By loss of t he left hand above the elbow, he has evidently been rendered unfit for the work of carpenter as the work of carpentry cann o t be done by one hand only."

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This is obviously a reasonabl e and correct finding. Counsel for the appellant has not been able to a ssail it on any ground and it does not require to be corrected in this appeal. There is also no justifica t ion for the other argument which has been advanced with referenc e to item 3 of Part II of Schedule I, because it was not the appell a nt's case before the Commissioner that amputation of the arm was fr om 8" from tip of acromion to less than 41/2" below the tip of olecra n on. A new case cannot therefore be allowed to be set up on facts w h ich have not been admitted or esta b lished.”

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RAJNEESH SHARMA 2025.05.20 09:43 I attest to the accuracy and integrity of this document

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6

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FAO-1063-1998 & FAO-1989-1999

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[11] The aforesaid view was r eiterated in ‘Indra Bai versus Oriental Insurance Company Limited and another’, 2023 (8) SCC 217 . Thus, th e loss of earning qua claimant n eeds to be assessed by taking his functiona l disability to the extent of 100 % . Date of accident is 11.03.1 9 93. For the p urpose of Section 4, the mini m um notified wages on the dat e of accident w ere Rs.1000/-. Relevant factor is 228.54. Thus, the compensa t ion payable t o the claimant is as under:-

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1000 x 228.54 x ½ = 1,14,270/-

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[12] Apart from the aforesaid c o mpensation, the claimant is a lso held entit l ed for interest @ 12% per ann u m for the period commencing f r om 30 days a fter the accident i.e.10.04.199 3 till the date of actual realizat i on. The appe l lant is also held entitled for pe n alty @ 50% of the compensat i on, which is = Rs.57135/-. Expenses have b een awarded by the Commissi o ner on actual basis, the same amount of Rs.2, 0 00/- for expenses are maintain e d.