IMPORTANT POINT
Total incapacity to perform work due to injury is deemed 100% functional disability, warranting full compensation under the Workmen's Compensation Act.

JUDGMENT :

1. In this appeal, filed under Section 30 of the Workmens’ Compensation Act, 1923 (hereinafter referred to as “the Act of 1923” for short), the appellant/original claimant has challenged the judgment and award dated 16.04.2010 passed by the learned Commissioner under the Workmens’ Compensation Act and Judge, 1st Labour Court, Nagpur, whereby the claim filed by the appellant-claimant under Section 10 of the Act of 1923 for grant of compensation was partly allowed.

2. BACKGROUND FACTS :-

The appellant was working as a Cleaner in the Speed Form Department of respondent no.1-textile mill since 1985 on a salary of Rs.1,800/- per month. On 31.03.1995, while discharging his duties, the appellant met with an accident and suffered an injury to his backbone. He was initially treated by Dr. Potdar, who was the honorary Medical Officer of respondent no.1. The appellant was later on referred to Dr. Chandak, an Orthopaedic Surgeon for further examination and treatment. On his medical examination, Dr. Chandak found that the appellant suffered back compression fracture of L1 vertebral. The Doctor declared him unfit to perform his duty as a Cleaner in Speed Form Department of respondent no.1. According to the appellant, on account of back compression fracture of L1 vertebral, he has been incapacitated to work and thereby affected his 100% earning capacity. He, therefore, claimed a total compensation of Rs.2,07,511/-. Respondent no.1 granted him Rs.32,909/- only towards compensation. Before filing the claim, the appellant issued notice to respondent no.1 and demanded compensation. Respondent no.1 did not comply with the said notice. Therefore, the appellant filed claim under Section 10 of the Act of 1923.

3. The respondent no.1 filed written statement and opposed the claim. Respondent no.1 denied its liability to pay compensation. It was contended that the appellant was not its regular employee and therefore, he was not entitled to get compensation. According to respondent no.1, the appellant was engaged as a ‘badli’ (substitute) worker. Respondent no.1 admitted the accident, however, it was contended that proper medical treatment at the cost of respondent no.1 was provided to the appellant. On submitting the disability certificate, respondent no.1 paid Rs.32,909/- towards compensation to the appellant. It was deposited with the office of the Commissioner. The amount of Rs.32,909/-, according to respondent no.1, was proper and adequate compensation as per the provisions of the Act of 1923. The appellant accepted the amount without any protest. It was contended that the employees of the respondent-textile mill were insured with the insurance company.

4. On the basis of the contentions raised in the written statement by respondent no.1, respondent no.2-Insurance Company was joined as party-respondent no.2. The Insurance Company contended that the employees of respondent no.1 were not insured with it. The policy was not issued by the company covering the risk of the employees of respondent no.1-textile mill.

5. The appellant examined himself. He also examined the Medical Officer Dr. Potdar as his witness. The respondents have not adduced oral evidence. Learned Commissioner, on appreciation of the evidence recorded a finding that the appellant, being a substitute (badli) worker in the textile mill of respondent no.1, was covered by clause (ii) of Schedule II of the Act of 1923 and as such, his claim was maintainable. Learned Commissioner recorded a finding that the appellant sustained injuries during the course of employment. The learned commissioner, on the basis of the percentage of disability mentioned in the certificate, awarded compensation to the extent of 40%. The appellant being aggrieved by this judgment and award, has come before this Court in appeal.

6. This appeal was admitted on following question of law :

“Whether the Commissioner was justified in rejecting the claim for penalty and interest without giving any reasons for denying t