Bangalore District Court
Suresh .B.H vs Vijaya Tools on 17 January, 2025
KABC020285932023
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
COURT OF SMALL CAUSES, AT BENGALURU. (SCCH-_25)
-: PRESENT:-
SMT. PRAKRITI KALYANPUR, B.A(L),LL.B., LL.M.
XXIII Additional Small Causes Judge, Bengaluru.
DATED THIS THE 17TH DAY OF JANUARY 2025
ECA No.72/2023
PETITIONER/S: Sri. Suresh B.H.
S/o Hanumegowda,
Aged about 26 years,
R/at No.36, 1st Cross,
Balaji Layout,
Near Subramanyapura Post
Office,
Gubbalala Main Road,
Bengaluru - 560 061.
(By Sri. Rakesh H.D. Advocate/s.)
V/S
RESPONDENT/S Vijaya Tools
#47, 8th Main Road,
J.C. Industrial Estate,
Yelachenahalli,
Kanakapura Road,
Bangalore - 560 062.
(By Rudrachar and Associates)
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JUDGMENT
This is a Petition filed by the Petitioner under Section
22 of Employees Compensation Act, 1923 seeking
Compensation of Rs.18,00,000/- for the injuries sustained
by him in an accident arising out of and in the course of
employment under the Respondent.
2. The case of the Petitioner in brief is that,
He is the employee of the Respondent and he is
working with him from past 6 to 8 years and he is drawing
the salary for a sum of Rs.21,461/-pm. He was the Operator
of Power Press 25-Ton SUW in the Respondent Industry
from many years. The petitioner noticed that there is a
problem in the sensor of the said machine. It was not
working properly and he has informed the same to the
Supervisor Pradeep and General Manager Vijay Kumar. But
they have failed to get it repaired, even after lapse of 15 days
due to negligence.
3. It is the further case of the petitioner that, on
08.10.2022 at about 12.35pm, while cleaning the machine
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by air presser, due to the failure of the sensor, the machine
hit the right hand fingers of the petitioner. As a result the
petitioner suffered grievous injuries to the index finger,
middle finger, ring finger and little finger. Immediately, after
the accident he was taken to Shankar Super Specialty
Hospital, Kanakapura, Bangalore, wherein his hand was
operated on and he was treated as in inpatient for up to 20
days. So far he has spent Rs.2,00,000/- towards his
medical, conveyance, food and nourishment, transportation
and other expenses. After the accident, he cannot do his
work and earn and his life has become dark and miserable.
4. It is the further case of the Petitioner that, the
said accident took place during the course of employment of
the petitioner under the respondent and he was an Operator
under him as on the date of accident. The Kumaraswamy
Police Station have registered a case on 10.10.2022 in
Cr.No.303/2022 p/u/Sec.287 and 338 of IPC. Therefore,
the Respondent is liable to pay compensation to the
petitioner. Hence, this petition.
4 ECA No.72/2023
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5. In response to summons issued by this court,
the Respondent has appeared and filed written statement.
6. The objections of the Respondent:
It has admitted that the petitioner was working as an
Operator under him from past couple of years. Further
contended that the petitioner suffered injuries while
operating a machine due to his own negligence. It has
denied any problem in the Sensor of the machine and that
it was not functioning properly. Further stated that, all the
medical expenses of the petitioner were borne by the
Respondent. Therefore, it has denied the contention of the
petitioner of spending Rs.2,00,000/- for his medical
expenses, food, conveyance etc., Further stated that the
petitioner has availed all the financial benefits and
privileges payable by him under the law:
(a) Cash Benefits: Temporary Disablement Benefit
from 09.10.2022 to 31.10.2023 for 115 days @ Rs.712/-
amounting to Rs.81,888/- is already settled.
(b) Permanent disablement benefit: PDB;
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(i) The PDB Pension has been sanctioned by the
Regional Office and the rate is fixed at Rs.365/- (which is
subject to revision on enhancement of rates from time to
time as per HQRS Circular).
(ii) The arrears for the period from 01.02.2023 to
30.11.2023 for 303 days amounting to Rs.1,07,868/- is
paid to the petitioner on 26.12.2023.
(iii) The petitioner will be getting the pension monthly
depending upon the number of days in a month Rs.9,968/-
for 28 days, Rs.10,324/- for 29 dyas, Rs.10,680/- for 30
days and Rs.11,036/- for 31 days.
(c) The medical treatment availed at ESI Dispensary,
Konanakunte (Yelachenahalli), Bengaluru.
Besides these statutory benefits, the petitioner is getting
pension at the rate of Rs.9,000/- per month as of now. He
has also been paid compensation for a sum of Rs.88,500/-
already. Thus the petitioner has secured all the financial
benefits as per law and as such he is not entitled for any
compensation as claimed by him. Further stated that, it
has paid the compensation amount under the Workman’s
Compensation by ESI and Gratuity amount of Rs.55,000/-
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through labor officer and controlling authority, Bangalore
by Cheque No.000356 dated 25.05.2023, drawn on Bank
of Baroda, ISRO Layout Branch, Bangalore. Further
contended that having availed all the financial benefits, the
petitioner cannot claim under the Provisions of EC Act.
Therefore, prayed for dismissal of the petition.
7. On the above rival contentions of the parties,
this court has framed the following issues:
1. Whether the Petitioner proves that, he was
an employee under the respondent as on
the date of alleged accident?
2. Whether the Petitioner proves that, he
sustained injuries in the accident while he
was working as Operator of Power Press
25-Ton SUW Machine in the Respondent
industry during the course of and arising
out of employment under the Respondent.?
3. Whether the Petitioner is entitled for
compensation? If so, how much and from
whom?
4. What Order or Award?
8. In order to prove his case, the Petitioner has got
examined himself as PW.1 and got marked 10 documents
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as per Exs.P.1 to P.10. He got examined Mr.Sharath –
Medical Record Officer at Shankar Super Specialty
Hospital as PW.2 and got marked Exs.P.11 to P.13.
Dr.Pramod Kumar M. got examined as PW.3 and got
marked Exs.P.14 to 18. On the other side the respondent
got examined Mr.R.Vijay Kumar – Proprietor of the
Respondent Manufacturing Unit as RW.1 and got marked
Exs.R.1 & 2.
9. Heard both Counsels.
10. My finding to the above issues are as follows:-
Issue No.1 : In the Affirmative,
Issue No.2 : In the Affirmative
Issue No.3 : In the Negative,
Issue No.4 : As per final order for the
Following:
REASONS
11. Issue Nos.1 & 2:
Since both these issues are interconnected to each
other and require common discussion, for the sake of
brevity and convenience, both these issues are taken
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together for consideration. At the outset, it is pertinent to
mention that, since the Petitioner has filed the present
petition seeking compensation under Employees
Compensation Act, it is imperative on the part of the
Petitioner to prove that, he is an employee under the
Respondent as defined under the provisions of Employees
Compensation Act.
12. In this regard, the Petitioner has examined
himself as PW.1 and reiterated the averments of the
petition in his evidence. During the cross examination of
PW.1, he has admitted that he was working from 6 years
prior to the accident with the respondent. He was trained
on the Job by Tool Maker Lingaraju and the Supervisor
was Pradeep. No one has taught him about the usage of
Power Press but he has learnt on the Job. He was working
on the general shift from 8.00am to 8.00pm i.e., 8 hours +
Overtime. Excluding him three others were working on the
same machine at different points of time. On the date of
accident four members were working near the machine.
None of the other employees complained about the non
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working of the Sensor to the Supervisor since he was
dealing with the machine more. Further stated that the
company has installed a duplicate sensor. The duplicate
sensor was installed about four months before the
accident. The Petitioner has produced his original
Employee ID Card as per Ex.P.1. This document clearly
discloses that the Petitioner is an employee under Vijay
Tools. Apart from this, the Petitioner has also produced the
documents as per Exs.P.2 to P.10 before this court. Ex.P.5
the order sheet in CC No.26484/2023 and also produced
the charge sheet as per Ex.P.6, which is filed before the
Jurisdictional police station after detailed investigation.
The IO has filed charge sheet against one Vijay Kumar R.
and Pradeep General Manager and Supervisor of the
Respondent company respectively. It is evident from the
said documents that, the Petitioner while working at
Respondent company as an Operator of Power press 25-
Ton SUW has met with an accident and sustained grievous
injuries. Moreover, the respondent has admitted in his
written statement that the petitioner was working as an
Operator under it. Therefore, the Petitioner has proved that
10 ECA No.72/2023
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he was an employee under the Respondent and met with
an accident arising out of and in the course of his
employment under the Respondent. Accordingly, issue
Nos.1 and 2 are held in Affirmative.
13. Issue No.3:
The Petitioner has further contended in this petition
and evidence that, due to the accident, he has sustained
grievous injuries to the Index Finger, middle finger, ring
finger and little finger. He has further stated that, after the
accident it was not possible for him to continue his
avocation, as the accidental injuries have resulted in
permanent disabilities. Because of these disabilities, he is
unable to do any work. In this regard, the Petitioner apart
from examining himself and reiterating the above
averments in his evidence has also examined Mr. Sharath –
MRO, Shankar Super Specialty Hospital, Bangalore as
PW.2 and got marked Exs.P.11 to P.13 i.e., authorization
letter, MLC register extract and police intimation. During
the cross examination of PW.2, nothing worthwhile is
elicited.
11 ECA No.72/2023
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14. Apart from this, he has also got examined
Dr.Pramod Kumar M. – Consultant Orthopaedic Surgeon
at Shankara Superspecialty Hospital, Bangalore as PW.3
and got marked 5 documents as per Exs.P.14 to P.18 i.e.,
discharge summary, police intimation, old X-ray 2 in Nos.,
Recent X-ray and entire case sheet. PW.3 has spoken
supporting the version of the Petitioner. PW.3 has stated
that, on examination he was diagnosed with the (i) Crush
injury of 2nd , 3rd , 4th and 5th stump closure of right hand,
(ii) Traumatic amputation of 2nd, 3rd, 4th and 5th of right
hand and (iii) Comminuted fracture of proximal phalanx of
2nd, 3rd, 4th and 5th of right hand. His injuries were treated
with debridement and stump closure of 2 nd, 3rd, 4th and 5th
of right hand. PW.3 has specifically spoken in his evidence
that the Petitioner suffers (i) disability from Arm
component : 11.33%, (ii) Disability from hand component :
25% and (iii) Disability due to dominant hand : 10%. The
permanent disability to the whole body from upper limb is
at 43.10%. During the cross examination of PW.3, he has
stated that he has treated the petitioner for one week. The
petitioner required about 3 complete weeks for healing of
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the injury. The pain may last upto 2-3 years due to cuttingof nerves. The weakness in the forearm is due to loss of
tendons. PW.3 further stated that the petitioner can do
light work driving scooter or Auto with great difficulty.
15. As per the Schedule – I to the Employees
Compensation Act as per Article 7, Loss of earning capacity
is 50% for loss of four fingers of one hand. But in this case
the entire fingers are not lost. From the pictures at Ex.P.2
it is clear that the petitioner has lost one phalanx each of
the little and ring finger and two phalanges each of Index
finger and middle finger. Therefore, as per Article 28, 11%
disability for Index Finger, as per Article 32, 9% disability
for middle finger and as per Article 37, 5% each disability
for the Ring finger and the little finger can be given. Then
the total disability comes 30%. But as per Sec.4(1)
explanation 1, when more injuries than one are caused by
the same accident, the amount of compensation shall be
aggregated. Therefore, the aggregated disability comes to
7.5%. While discussing issue Nos.1 and 2, this court has
already come to the conclusion that, the Petitioner is an
13 ECA No.72/2023
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employee under the Respondent and he has met with an
accident arising out of and in the course of his
employment.
16. In so far as quantum of compensation is
concerned, it is relevant to note that the Petitioner has
produced the Admission register extract, copy of SSLC
Marks card and Aadhar Card as per Exs.P.8 to 10. These
documents are public document and it has got
presumptive value under law. Therefore, this court has to
rely upon the said documents. As per the said documents,
he was born on 11.12.1996. The accident occurred on
08.10.2022. As such, as on the date of accident his age
was 25 years. According to the Petitioner he was drawing
salary of Rs.21,461/- per month. But to substantiate this
contention he has not produced any documents before this
court and has not examined his employer. But the
respondent has admitted that the payment of the said sum
as Salary in the written statement. In addition, PW.1 has
produced Bank Pass Book as per Ex.P.7. As per Ex.P.7,
Rs.19,317/- credited as salary for the month of March
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2022 and Rs.17,775/- credit as salary for the month of
April 2022. Therefore, the monthly salary of the petitioner
is considered as Rs.21,461/-.
17. As per section 4 of Employees Compensation Act
while deciding the loss of income of an employee the court
has to decide the relevant factor based on the age of the
Petitioner. As mentioned above the age of the Petitioner as
on the date of accident was 25 years. The relevant factor
given to his age in schedule IV of the Act is 216.91. As per
section 4(1)(b), 60% of his monthly wages has to be
multiplied by relevant factor. The 60% of the total salary of
the Petitioner is Rs.12,876/- (Rs.21,461/- x 60% =
Rs.12,876/-) and it has to be multiplied by having
reference to the percentage of disability and relevant factor.
Therefore the Petitioner in total is entitled for a sum of
Rs.2,09,470/- (Rs.12,876/- x 216.91 x 7.5% =
Rs.2,09,470/-) under the head of loss of future
earnings/income.
15 ECA No.72/2023
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MEDICAL EXPENSES
18. The Petitioner has contended that he has spent
more than Rs.2,00,000/- towards transportation,
hospitalization, treatment, follow-up treatment, medical
expenses, conveyance and attendant charges. In this
regard he has produced Sixteen bills for a sum of
Rs.5,500/- as per Ex.P.4. There is no contrary evidence to
these bills from the respondent. Therefore, the Petitioner is
entitled for the above said amount under the heads of
medical expenses.
As such, the petitioner is entitled to a sum of
Rs.2,14,970/- under different heads. If it is rounded off it
comes to Rs.2,15,000/-.
LIABILITY
19. The respondent to prove its defence has
examined its Proprietor – R.Vijay Kumar as RW.1 and got
marked Exs.R.1 & 2, 2 photographs and CD and
Certificate u/Sec.65B of Indian Evidence Act. During the
cross examination of RW.1, nothing worthwhile is elicited.
16 ECA No.72/2023
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As per the written statement averments the petitioner
has received the following sums:
(a) Cash Benefits: Temporary Disablement Benefit
from 09.10.2022 to 31.10.2023 for 115 days @ Rs.712/-
amounting to Rs.81,888/- is already settled.
(b) Permanent disablement benefit: PDB;
(i) The PDB Pension has been sanctioned by the
Regional Office and the rate is fixed at Rs.365/- (which is
subject to revision on enhancement of rates from time to
time as per HQRS Circular).
(ii) The arrears for the period from 01.02.2023 to
30.11.2023 for 303 days amounting to Rs.1,07,868/- is
paid to the petitioner on 26.12.2023.
(iii) The petitioner will be getting the pension monthly
depending upon the number of days in a month Rs.9,968/-
for 28 days, Rs.10,324/- for 29 days, Rs.10,680/- for 30
days and Rs.11,036/- for 31 days.
During the cross examination of PW.1 he has
admitted that from 09.10.2022 to 31.01.2023 for a total of
115 days at the rate of Rs.712/- per day Rs.81,888/- is
paid to him towards loss of pay reimbursed by ESI. Further
17ECA No.72/2023
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admitted that permanent disablement pension is enhanced
to Rs.365/- and paid by ESI and the arrears of
Rs.1,07,868/- is also paid by 01.02.2023 to 30.11.2023 for
303 days on 26.12.2023. The pension is fixed at
Rs.11,036/- per month for a month of 31 days. Further
admitted that he has received gratuity of Rs.55,000/- by
the respondent through the Labor Commissioner on
25.05.2023. Further admitted that he is receiving monthly
pension regularly about Rs.11,030/- and everything was
paid by ESI. Now he is working. Owner has also paid
Rs.1,00,000/- by Cheque to him.
It is pertinent to refer Dhropadabai v. Technocraft
Toolings, (2015) 14 SCC 454 wherein the Hon’ble
Supreme Court of India has referred Mr. A. Trehan vs
M/S. Associated Electrical agencies (1996) 4 SCC 255
and held as follows:
8. The aforesaid provision came to be interpreted by a two-Judge Bench
in A. Trehan case [A. Trehan v. Associated Electrical Agencies, (1996) 4
SCC 255 : 1996 SCC (L&S) 928] , wherein the Court after reproducing
the said provision and taking note of the definition of “workman” as
provided under Section 2(1)(n) of the 1923 Act, came to hold as follows:
(SCC pp. 259-60, para 11)
18 ECA No.72/2023
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“11. A comparison of the relevant provisions of the two Acts makes it clear that
both the Acts provide for compensation to a workman/employee for personal
injury caused to him by accident arising out of and in the course of his
employment. The ESI is a later Act and has a wider coverage. It is more
comprehensive. It also provides for more compensation than what a workman
would get under the Workmen’s Compensation Act. The benefits which an
employee can get under the ESI Act are more substantial than the benefits
which he can get under the Workmen’s Compensation Act. The only
disadvantage, if at all it can be called a disadvantage, is that he will get
compensation under the ESI Act by way of periodical payments and not in a
lump sum as under the Workmen’s Compensation Act. If the legislature in its
wisdom thought it better to provide for periodical payments rather than lump
sum compensation its wisdom cannot be doubted. Even if it is assured that the
workman had a better right under the Workmen’s Compensation Act in this
behalf it was open to the legislature to take away or modify that right. While
enacting the ESI Act the intention of the legislature could not have been to
create another remedy and a forum for claiming compensation for an injury
received by the employee by accident arising out of and in the course of his
employment.”
The aforesaid authorities make it eminently clear that once an
employee is an “insured person” under Section 2(14) of the 1948 Act,
neither he nor his dependants would be entitled to get any
compensation or damages from the employer under the 1923 Act.
Sec.2(14) of ESI Act: “insured person” means a person who is or
was an employee in respect of whom contributions are or were
payable under this Act and who is by reason thereof, entitled to any of
the benefits provided by this Act;
Sec.53 of ESI Act; Bar against receiving or recovery of
compensation or damages under any other law.
An insured person or his dependents shall not be entitled to receive or
recover, whether from the employer of the insured person or from any
other person, any compensation or damages under the Workmens
19 ECA No.72/2023
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Compensation Act, 1923 (8 of 1923), or any other law for the time
being in force or otherwise, in respect of an employment injury
sustained by the insured person as an employee under this Act.
Be it noted here that, the Workman’s Compensation
Act was renamed as Employee’s Compensation Act 1923 in
the year 2009.
In the case on hand, from the written statement
averments and the admissions by PW.1, it is clear that the
petitioner has received the benefits as an insured person
under the ESI Act. Therefore, on application of all these
sections and the decisions of Hon’ble Supreme Court in
A.Trehan‘s Case, petitioner is not entitled to any
compensation under Employees Compensation Act as per
Sec.53 of ESI Act. Accordingly Issue No.3 is held in the
Negative.
20. Issue No.4:
For the reasons and discussions made above and
finding to the above issues, this court proceed to pass the
following:-
20 ECA No.72/2023
SCCH-25
ORDERThe Petition filed by the Petitioner
under Section 22 of Employees
Compensation Act 1923 is hereby dismissed.
No order as to cost looking at the
financial condition of the petitioner.
Draw Award accordingly.
(Dictated to the stenographer on line, revised, corrected and then
pronounced in the open court this the 17th day of January 2025)(PRAKRITI KALYANPUR)
XXIII ASCJ, MEMBER MACT,
Bangalore.
ANNEXTURE
List of Witnesses examined for Petitioner:
PW.1 Mr. Suresh B.H. PW.2 Mr. Sharath PW.3 Dr. Pramod Kumar M
List of Documents marked for Petitioner:
Ex.P1 Original Employee ID card
Ex.P2 3 photos
Ex.P3 X-ray
Ex.P4 Medical bills 16 in nos
Ex.P5 Certified copy of Order sheet in CC
26484/2023
Ex.P6 Certified copy of Entire Charge sheet
Ex.P7 Bank pass book
21 ECA No.72/2023
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Ex.P8 Admission register extract
Ex.P9 Notarized copy of SSLC Marks card of
petitioner (compared with original and
same is returned)
Ex.P10 Notarized copy of Adhaar card of petitioner
(compared with original and same is
returned)Ex.P11 Authorization letter
Ex.P12 MLC register extract (Compared with the
original and returned)Ex.P13 Police Intimation (Compared with the
original and returned)
Ex.P14 Discharge summary
Ex.P15 Copy of police intimation (compared with
original and same is returned)
Ex.P16 Old X-ray 2 in nos
Ex.P17 Recent X-ray
Ex.P18 Entire case sheetList of Witnesses examined for Respondent/s:
RW.1 Mr. R.Vijay Kumar
List of documents exhibited for Respondent:
Ex.R.1 2 photographs and CD
Ex.R.2 Certificate u/Sec.65B of Indian Evidence Act(PRAKRITI KALYANPUR)
XXIII ASCJ, MEMBER MACT,
Bangalore.
Digitally signed
by PRAKRITI
PRAKRITI KALYANPUR
KALYANPUR Date: 2025.01.22
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