M. Papanna, J.@mdashThis appeal u/s 30 of the Workmen''s Compensation Act, 1923 is against the judgment by the Commissioner for Workmen''s Compensation-cum-Assistant Labour Commissioner, (Dhenkanal), Angul in W.C. Case No. 44 of 1997.
2. Facts of the case leading to the appeal are delineated as below :
On 11.2.1997 at about 12.50 P.M. while the applicant was going to duty he received a blunt injury on his head due to fall of a check post bar erected by the appellant. Since the injury sustained by him arose out of and in due course of his employment, the applicant filed W.C. Case No. 44 of 1997 before the Commissioner for Workmen''s Compensation-cum-Assistant Labour Commissioner, (Dhenkanal), Angul claiming compensation from the appellant.
3. The appellant filed his written statement resisting compensation claimed by the applicant on the ground that on 11.2.1997 he was on sick leave for which he is not entitled to any compensation from the appellant. Moreover, the Company Doctor has certified that he is 100% fit. That apart, the alleged accident did not occur out of or in course of his employment.
4. Out of pleadings of the parties, the trial Court framed mainly two issues such as :
(i) Whether the applicant sustained injury due to accident on 11.2.1997 during the course of his employment, and
(ii) Whether there was any loss of earning capacity of the applicant ?
5. The applicant examined himself and two other witnesses in support of his application. On the other hand, two witnesses were examined on behalf of the appellant. That apart both the parties relied on some documents in support of the stand taken by them.
6. The learned trial Court on consideration of the materials available on record came to hold that the applicant sustained the injury on account of accident during the course of his employment and that he determined that he sustained loss of earning capacity at 20%. On the aforesaid findings, he directed a sum of Rs. 42,838/-towards compensation to be deposited by the appellant by bank draft by 25.3.2000.
7. The aforesaid order of the learned trial Court is called in question in the present appeal. The only contention raised by the learned counsel for the appellant is that the applicant did not sustain any injury on account of accident during the course of his employment for which he is not entitled to any compensation. That apart, since the workman has not adduced any evidence regarding loss of his earning capacity, the findings of the learned trial Court have gone wrong and are liable to be set aside.
8. On the other hand, the learned counsel appearing for the respondent has fully supported the judgment of the learned trial Court impugned before this Court.
9. Admittedly, the applicant was a Drill operator of Jagannath Colliery. His plea is that on 11.2.1997 near the main entrance gate of colliery, he met accident. As he was going to his duty, he is entitled to compensation as the accident took place during the course of his employment. This fact has been denied by the appellant on the ground that the applicant availed leave on 11.2.1997.
10. The only question for consideration is whether the applicant has sustained any injury on his head on account of accident taken place during the course of his employment. It is not in dispute that the applicant was hospitalised for the injury on his head on account of the accident taken place near the gate of the Colliery. Safety Officer of Jagannath Colliery forwarded his case to the hospital.
The workman had his duty from 1 P.M. to 9 P.M. on the relevant date. So, it is quite but natural for him to go through the gate to attend his duty at 1 P.M., but unfortunately the accident took place at 12.50 P.M. The check post bar fell on his head for no fault of his. It is the appellant, who installed the same for his own purpose.
11. A perusal of evidence of the applicant (P.W. 1) corroborated by P.W. 2 a Doctor and P.W. 3, an employee of the Colliery shows that on the relevant date and time of occurrence, he was going to his second shift duty which would start from 1 P.M. to 9 P.M. At that time, while he was crossing the gate of the Colliery, the gate fell on his head causing thereby injury on his head. His evidence further shows that he was working as Clerk in the Colliery where he is unable to do over time work after the accident. No part of the evidence adduced for and on behalf of the applicant could be discredited nor discarded due to cross-examination to which he was subjected by the opposite party.
12. Though evidence was led on behalf of the opposite party, but there was no material to show that the applicant was on leave on that date. On the contrary, it has been established on behalf of the applicant that he was having second shift duty on 11.2.1997 and after he was admitted in the hospital for the injury sustained on his head, he had to pray for sick leave. It is also not in dispute that the road on which the accident took place is the only road to go to his duty since there is no other road. Moreover, the check post bar which fell on his head was installed by the opposite party. Taking into account all the above aspects, the learned trial Court held that the accident occurred within the premises of the Colliery and the applicant was present there not as an outsider but as an employee of the Colliery. Therefore, basing on the evidence brought on record on behalf of both the parties, the learned trial Court held that the accident occurred during the course of his employment. Since the said finding is correct and justified, this Court is not inclined to interfere with the same.
13. The next question for consideration is whether the applicant suffered loss of earning capacity due to the accident. A certificate issued by Dr. Sanatan Rath showing disability of the applicant at 20% for which he was recommended for light work by the District Medical Board, Angul. But D.W. 2 examined on behalf of opposite party stated that he found no disability in the applicant on 29.9.1997 for which he declared him fit to join his duty. Inspite of that the learned trial Court relied on the information of the District Medical Board, Angul to arrive at a conclusion that the loss of earning capacity of the applicant is calculated at 20% as per Section 4(1)(c)(ii) of the Workmen''s Compensation Act. This is sufficient to hold that the applicant suffered earning capacity. The learned trial Court determined ultimately to fix a compensation of Rs. 42,837.60 p. to be paid to the applicant and directed the opposite party to pay the same in shape of bank draft by 25.3.2000. This Court is not inclined to interfere with the aforesaid award passed by the learned trial Court for the reasons recorded above.
14. In course of hearing of the appeal, it is admitted by the appellant that he deposited the compensation amount on 25.3.2000 in the shape of demand draft which the applicant has already received towards compensation. In view of the fact that the Respondent has already received the compensation, the appeal needs no consideration. Accordingly, the order dated 5.7.2001 passed in Misc. Case No. 426 of 2001 staying further proceeding stands vacated.
15. In the result, the appeal is dismissed. In the facts and circumstances of the case, there is no order as to cost.
