Challenging judgment and order dated 25.02.2016

passed by II Additional Senior Civil Judge and Employees

Compensation

Commissioner,

Shivamogga,

in

ECA

No.75/2014, this appeal is filed by claimant against dismissal

of his claim petition.

2.

Brief facts as stated are that claimant (hereinafter

referred to as 8workman9 for short) was a permanent employee

of respondent (8employer9 for short), as carpenter since 24

years, in Sanathana Wood Industries belonging to respondent.

That on 31.12.2008 at 4.30 p.m., when he was working as per

instructions of employer, he suffered permanent physical

disability when four fingers of his left hand got cut in planing

machine. Immediately after accident, one Dhananjaya - uncle

3

of employer, got workman admitted to Nanjappa Hospital,

where he was given inpatient treatment for two days and

discharged.

3.

It was stated that as on date of accident, workman

was 42 years of age, worked from 8:30 a.m. to 1:00 p.m. and

from 2:00 p.m. to 6:00 p.m. and was paid Rs.1,400/- per

week. And accident occurred while he was working on the

plainning machine as per instructions of employer. Therefore,

accident occurred during course of employment and out of

employment. Since claimant lost four fingers in accident, he

became permanently disabled and lost earning capacity.

Therefore, he filed application claiming compensation under

Sections 3, 4 and 10 of Employees Compensation Act

(hereinafter referred to as 8E.C.Act9 for short).

4.

Upon

service

of

summons,

employer

filed

objections, denying claim petition averments in toto. It was

contended that claimant was not employed by respondent and

4

was not on duty, on date of accident. Therefore, occurrence of

accident during course of employment and out of employment,

admission to hospital and taking treatment as well as claimant

suffering loss of earning capacity were denied. It was

specifically

asserted

that

respondent9s

father

3

Sri. Virupakshappa was owner of Sanathana Wood Industry,

who died about four years earlier and since his death, industry

remained closed. Therefore, there was no provision for work

and possibility of claimant being on duty as on date of

accident. It was also specifically asserted that none of

machines were running at time of accident and there was no

consumption of power by any of them. It was further stated

that workman had no right to enter industrial premises

without permission of owner and if workman got injured while

claiming to work illegally, employer was not liable to pay any

compensation.

5

5.

Based on pleadings, trial Court framed following

issues:

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6

6.

To substantiate his claim, workman examined

himself as PW-1. Exhibits P.1 to P.12 were marked. No

evidence was led by employer. On consideration, trail Court

answered issue no.1 in affirmative holding that relationship of

employer and employee was established; issue no.2 in

affirmative holding that accident occurred during course of

employment and arose out of employment; issue no.3 in

affirmative holding that workman had sustained loss of

earning capacity of 28%; issue no.4 by holding monthly

income of workman was Rs.4,000/-, issue no.5 by determining

his age as 42 years and entitlement of compensation of

Rs.1,19,945/- by applying factor of 17