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Bhupendrakumar Kohli Vs. Oil and Natural Gas Commission, Sabarmati, Ahmedabad - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtGujarat High Court
Decided On
Case NumberF.A. No. 1176 of 1979
Judge
Reported in1981ACJ385; (1981)0GLR152; (1981)IILLJ126Guj
ActsCode of Civil Procedure (CPC), 1908 - Order 18, Rule 16 - Order 33, Rule 1; Constitution of India - Article 133; Workmen's Compensation Act
AppellantBhupendrakumar Kohli
RespondentOil and Natural Gas Commission, Sabarmati, Ahmedabad
Cases ReferredAmul Rameshchandra v. Abbasbhai
Excerpt:
labour and industrial - compensation - order 18 rule 16 and order 33 rule 1 of code of civil procedure, 1908, article 133 of constitution of india and workmen's compensation act, 1923 - appellant welder employed by respondent lost his eye while drilling - suit for compensation of rs. 85000 - suit resisted by respondent - respondent failed to provide for safe system of work, adequate appliances and competent servants - due to negligence on part of respondent earning capacity of appellant to work as welder prejudicially affected by reason of loss of one eye - plaintiff entitled to compensation of rs. 70000 - rs. 25000 awarded in connection with pain and suffering and loss of amenities - rs. 43200 awarded in connection with loss of earning capacity and rs. 1800 awarded for expenditure.....m.p. thakkar, j. 1. who deserves greater sympathy, the lowly paid workman of the oil & natural gas commission (o.n.g.c) who became blind in one eye whilst sweating for it or the o.n.g.c. it self who has become blind in both the eyes and is fighting tooth and nail with all the technical arguments at its disposal and legal talents at its command with the limitless public fund at its disposal let alone being an ideal employer, can one not expect the o.n.g.c. to be a fair and humane employer should it prefer to spend thousands to pay to lawyers rather than to its own employee who has sustained permanent loss of an eye in the course of winning oil and profits for the o.n.g.c. and for the nation these questions come to the fore since a 30 year old welder employed by the o.n.g.c. lost his right.....
Judgment:

M.P. Thakkar, J.

1. Who deserves greater sympathy, the lowly paid workman of the Oil & Natural Gas Commission (O.N.G.C) who became blind in one eye whilst sweating for it or the O.N.G.C. it self who has become blind in both the eyes and is fighting tooth and nail with all the technical arguments at its disposal and legal talents at its command with the limitless public fund at its disposal Let alone being an ideal employer, can one not expect the O.N.G.C. to be a fair and humane employer Should it prefer to spend thousands to pay to lawyers rather than to its own employee who has sustained permanent loss of an eye in the course of winning oil and profits for the O.N.G.C. and for the Nation These questions come to the fore since a 30 year old welder employed by the O.N.G.C. lost his right eye by reason of the fact that a piece of metal caused injury to his eye in the course of an operation, undertaken by the party of drillers of which he was a member, for retrieving a precious instrument known as well-head. It appears that when the pipe was being pulled by recourse to the tackle system by a tractor, the holes in the pipe snapped and a piece of metal entered into the right eye of the welder concerned who was at the site in connection with the retrieving operations. The incident occurred on February 12, 1974. The welder concerned instituted a suit for recovering a total amount of Rs. 85,000 in the Court of the Joint Civil Judge (S.D.) Ahmedabad (Rural) at Narol. It was resisted on the ground that the O.N.G.C. or its officers who were at the site were not guilty of any negligence. The learned trial Judge came to the conclusion that the plaintiff had failed to establish that the defendant or its officers were guilty of negligence. In the view of the matter the learned trial Judge dismissed the suit. In the course of his judgment he recorded, a finding that in case the O.N.G.C. could be held liable in damages, he would assess the damages at the figure of Rs. 53,525. The unsuccessful plaintiff has approached this Court by way of the present appeal.

2. Two question arise :-

(1) Whether it is established by the plaintiff that the O.N.G.C. or its officers were guilty of negligence and

(2) The quantum of damage.

3. So far as the first point is concerned, it is the case of the plaintiff that the plaintiff that the doctrine or res ipsa liquidtur is attracted to the fact of this case and that the burden to establish that all proper safeguards and all appropriate precautions were taken rests on the shoulders of O.N.G.C. It is further more contended that the O.N.G.C. was guilty of negligence inasmuch as it had failed to provide for a safe method for carrying out the retrieving operations and that it had failed to provide supervision by officers who had necessary expertise in the matter.

4. The evidence show that the plaintiff was a member of the party which was headed by one Mr. Sidhu. It was under the instructions and as per the order of Mr. Sidhu that the plaintiff was at the site in order to carry out the functions entrusted to him. He was directed to drill two holes in the casing pipe which had been inserted in the well which had turned out to be a dry well in the sense that O.N.G.C. had failed to detect any oil or gas in the drilling operations carried out at the site. The plaintiff carried out the orders and drilled two holes in the casing pipe. A wire rope was passed through the two holes and it was then passed through a pulley. The wire rope was then tied to a tractor. As the tractor started moving the wire rope was pulled and in its turn the pipe was pulled upwards. By the time a distance of about 2 ft. was covered by the tractor, it became evident that the casing pipe would not give way any further. The tractor was moved forward in order to give a pull. While the tractor was being so pulled, one of the holes in the casing pipe snapped. A piece of the snapped pipe flew into the air and hit the plaintiff on his right eye. He was hospitalized and ultimately he lost his right eye. That is how the accident occurred which resulted in the loss of the right eye of the plaintiff. Since it cannot be said that whenever a retrieving operation of this kind is undertaken there is inherent danger of the hole snapping and the mishap occurring the doctrine of res ipsa loquitur would be attracted. If the casing pipe was sufficiently strong to withstand the pull, the accident would not have occurred. It would depend upon the material of which the pipe was made and the extent to which the pipe was made and the extent to which force can be safely applied. It cannot be said that in the ordinary course of nature the hold in the pipe was likely to snap and a piece of metal was likely to fly. Under the circumstances, the doctrine of res ipsa loquitur will be attracted and burden will be on the defendant to show that all necessary safeguards were provided and precautions were taken in order to ensure that such a mishap does not occur. Reliance in this connection has been placed on Shyam Sunder v. State of Rajasthan, (1974 Lab IC 598) (SC), wherein it is observed that the maxim res ipsa loquitur is resorted to when an accident is shown to have occurred and the cause of the accident is primarily within the knowledge of the defendant, The very fact of the accident may, sometimes, constitute evidence of negligence and the doctrine would be attracted. The Supreme Court has quoted with approval Scott v. London & St. Katherine Docks. (1923) SC (HL) 43. Wherein the doctrine has been stated in these terms :

'Where the thing is shown to be under the management of the defendant or his servants and the accident is such as in ordinary course of things does not happen if those who have the management has used proper care. It affords reasonable evidence, in the absence of explanation by the defendants that the accident arose from want of care.'

The Supreme Court has observed that it is neither a rule of evidence nor of substantive law but it is a caption to an argument on the evidence. It is a convenient label to apply to a set of circumstances in which the plaintiff proves a case so as to call for a rebuttal from the defendant without having to allege and prove any specific act or omission on the part of the defendant. The principal function of the maxim is to prevent injustice which would result if a plaintiff were invariably compelled to prove the precise cause of the accident and the defendants responsible for it even when the facts bearing on the matter are at the outset unknown to him and often within the knowledge of defendant. The mere happening of the accident may be more consistent with the negligence on the part of the defendant than with other causes. The maxim is based on common sense and its purpose is to do justice when the facts bearing on causation and on care exercised by the defendant are at the outset unknown to the plaintiff and are or ought to be within the knowledge of the defendant (see Barkway v. S. Wales Transport, [1950] I All ER 392). The Plaintiff, a welder, could not have known why the holes in the casing pipe snapped when force was being applied by moving the tractor to which the wire rope was tied. The O.N.G.C. could have easily found out how and in what circumstances the mishap had occurred. Was it because the casting pipe was made of such material to which no force could have been applied or force only to a limited extent could have been applied Was it made of a material to which force to the extent which was actually applied could have been safely applied was it because of the defective workmanship of the pipe or was it because of the defect in the material or was it because more force was applied than could have been applied with safety that the accident occurred These were all questions about which the defendant could have gathered the necessary information or ought to have been within the knowledge of the defendant or its officers. The O.N.G.C. was engaged in a specialised type of work. It is well known that it is carrying on drilling operation in order to even (well ?) oil all over India and even overseas. The O.N.G.C. must have numerous occasions to retrieve the well head by this method. If it had such experience, the O.N.G.C. could have shown that the method applied was safe and the force used was within the permissible limits and that the material of which the casting pipe was made was strong enough to stand the force applied by pulling the tractor. The O.N.G.C. has not adduced any evidence whatsoever in regard to its past experience in the matter of retrieving well-heads. Now, either it had past experience or it had no past experience. If it had past experience, it could have shown what was done could have been safely done and was safely done so far. If it had no experience and if it was undertaking the operation by way of an experimental measure for the first time, it would have been necessary for the O.N.G.C. to find out whether this method could have at all been applied and whether it could be applied with reasonable degree of safety. Experts having specialised knowledge in the subject concerned could have advised as to feasibility or otherwise of the operation having regard to the material of which the casting pipe was made and having regard to the method of applying force which was resorted to. The O.N.G.C. has not adduced any evidence on the point. Whether we proceed on the footing that it had experience in the past or in the footing that it had no expertise, we can safety conclude that in the normal course of events the accident would not have occurred. It was not in the very nature of things that the hole in the casting pipe should give way when the force was applied. It happened because the material was not sufficiently strong or the force which was applied was in excess of the force which could be safely applied. The very fact that a hole drilled in a casting pipe gave way unexpectedly goes to show that there was some defect either in the material of the casting pipe or in the method which was resorted. Since it cannot be said that the accident would in normal course of events have occurred, the doctrine would surely be attracted. Once we reach this conclusion the burden is on the O.N.G.C. to establish that it had taken sufficient precautions to avert such a mishap and had provided sufficient safeguards to ensure such an eventuality. The question then is whether O.N.G.C. has discharged this burden. Before we come to grips with this problem, we must deal with the question as regards the duty of the master towards the servant. Reliance has been placed by counsel for the plaintiff on a passage from 'Charlesworth on Negligence'. Sixth Edition (1977), wherein Paragraph 1035a the law has been stated as under :

'1035 a Sub-divisions of the duty. The duty may be considered under five heads : (1) to provide a safe place of work, including a safe means of access; (2) to employ competent servants; (3) to provide and maintain adequate appliances; (4) to provide safe system of work; and (5) other cases'.

The master is under a duty to provide (1) the safe place of work including a safe means of access; (2) to employ competent servants; (3) to provide and maintain adequate appliances and (4) to provide a safe system of work. It is argued by counsel that in the present case there is a failure on the part of the master in respect of its duty (1) to employ competent servants. (2) to provide a safe system of work and (3) to provide adequate appliances. In so far as the duty to employ competent servants is concerned, the burden is on O.N.G.C. to establish that the persons who were in the charge of the operation were competent to handle the task undertaken by them. The evidence shows that Mr. Sidhu who held the post of a senior driller and Mr. Sharma who was a junior driller were in charge of the operation. The evidence to the effect that these two persons were in charge of the operation and that the plaintiff who was a subordinate was bound to obey their orders and was in fact carrying out the instructions issued by them has not been challenged. Mr. Sidhu was in charge of the overall operation. The question then is whether Mr. Sidhu and Mr. Sharma were competent to undertake the operation in which they were engaged, viz., that of retrieving the well-head. Mr. Sidhu was a Matriculate but he had considerable experience in the matter of drilling and he was the senior driller. Mr. Sharma was holding a Science Degree. The question is whether having regard to their past experience they were competent to undertake such an operation. Whatever be the academic qualifications, unless they were experienced in the matter of retrieving such well-heads which was a specialized operation, they could scarcely have undertaken it with any degree of safety. As discussed earlier O.N.G.C. has maintained complete silence on the question whether it had any past experience in the matter of retrieving well-heads in its vast organization sprawling all over India. Mr. Sharma who has been examined as a witness by the O.N.G.C. has deposed that in so far as the Ahmedabad Unit was concerned, the operation in question was being undertaken for the first time. In other words, admittedly they did not have the benefit past experience. No doubt his evidence goes only to this extent that the Unit concerned had no past experience and that such an operation was not undertaken in the Ahmedabad Project. It may be mentioned at this juncture that Mr. Sidhu who was the head of the Unit has not been examined as a witness it appears that Mr. Sidhu had retired by the time the suit reached hearing before the learned trial Judge. It has been stated at the Bar by the learned counsel for the O.N.G.C. that an effort was made to serve him with a witness summons but it had proved abortive as Mr. Sidhu had gone overseas and could not be contacted. It is no doubt true that the envelop containing the the summons sent to the Delhi address of Mr. Sidhu was returned with an endorsement 'left India'. The Postman who made the endorsement has not been examined as a witness. We, therefore, do not know who gave this information and whether the information was correct or not. But assuming that Mr. Sidhu was not available in October, 1978 when he was sought to be served with a summons not much importance can be attached to this circumstance for a document on the record of the case (Ex. 66) shows that Mr. Sidhu was at Delhi on June 2, 1977 and was in active correspondence with the O.N.G.C. could have applied for his evidence being recorded before it lost contact with him, under Order 18 Rule of 16 of the Civil Procedure Code. It could also have applied for a ommission being issued for the recording of evidence of Mr. Sidhu Be that as it may, the fact remains that Mr. Sidhu has not been examined. O.N.G.C. could have also examined some other expert attached to one or the other of the several projects in which it was engaged all over India. Surely an occasion to undertake this type of operation had arisen in one or the other of its Projects by 1974. If there was such an occasion the expert concerned could have been examined as a witness. If there was no such occasion O.N.G.C. could have come forward and frankly stated so, O.N.G.C. has adopted neither the first course nor the second course. Can it then be said that the O.N.G.C. has discharged its burden to establish that it employed competent servants Whether or not Mr. Sidhu and Mr. Sharma were competent servants so as to meet the requirements of the duty imposed on the O.N.G.C. as a master who had ordered these operations, one will have to find out whether they had competence to take the necessary technical decisions involved in the operation. The technical decisions would be as regards the strength of the material of which the casting pipe was made and the amount of force which could be applied with safety. It was either a matter of which they had some expert knowledge acquired in the course of their technical studies or is a matter in respect of which they had acquired expertise by experience. Mr. Sharma has confessed that such an operation was never undertaken by the Ahmedabad Project. Mr. Sidhu has not stepped into the witness box to show that he had the necessary expertise by virtue of the expertise gathered in the course of his experience. Nor has the O.N.G.C. examined any officer to depose as to the competence of Mr. Sidhu to undertake the operation. Even if Mr. Sidhu had experience, the question would have arisen what was the nature and extent of his experience Was it his first experience or was it a case where he had undertaken a number of such operations with a degree of safety and he was reasonably sure that the material of which the casting pipe was made could withstand the extent of force which was being applied This burden which rests on the shoulders of the O.N.G.C. remains undischarged. It has not been established by the O.N.G.C. that Mr. Sidhu and Mr. Sharma who were supervising the operations and at whose instance the plaintiff had drilled the hole were competent to undertake the operation. Be it realised that as to the expertise gathered by these two officers, the O.N.G.C. had special knowledge in the sense that it was a matter within its special knowledge. O.N.G.C. has preferred to keep its mouth shut. We have therefore, no hesitation in concluding that there is no evidence to show that the servant employed by the O.N.G.C. were competent to execute the operation in which they were engaged at the time when the accident occurred.

5. Counsel is also right in the second limb of the submission that the O.N.G.C. has failed to provide a safe system of work in the context of the operation which was being carried out. A safe system of work would mean a system of pulling out the casting pipe by applying force to the wire rope which was at one end tied to the pipe and at the other end tied to the tractor which was moved in order to apply force. Several considerations would enter the consideration of this question as regards the safety of the system employed by the O.N.G.C. Could any amount of pull have helped in retrieving the well-held Could it be done with the help of a wire rope by applying the force by tying it to a moving tractor Can this be done having regard to the material of which the casting pipe was made Was it safe to do so All these are questions which in a way have a bearing in regard to the employment of competent servants as also in regard to the system, The same considerations would apply. The safety of the system would depend on whether they had sufficient expertise and the persons who are in charge of the operation were technically competent to carry out the operation with success without any peril. For the same reasons we are of the opinion that it is not shown that the O.N.G.C. has provided a safe system of work having regard to the nature of the operation and having regard to the risk involved in the operation. We have, therefore, no hesitation in recording a finding in favour of the plaintiff on this point as well. In both these respects, viz., in respect to the duty to employ servants and in its duty to provide a safe system of work the O.N.G.C. has failed and neglected in its duty in these two respects and to this extent there is negligence on the part of O.N.G.C. Learned counsel for the plaintiff has also stressed the circumstance that admittedly the unit which was engaged in these retrieving operations was not equipped with a Drillometer or a pressure indicator Even if, therefore, Mr. Sidhu and Mr. Sharma had known of the extent of the force that could have been applied with safety in the absence of necessary equipment, they could not have provided the necessary safeguards. This is also a circumstance which reinforces the contention that O.N.G.C. has filed to provide a safe system of work. To this can be added three more circumstances. First Mr. Sharma in paragraph 10 of his deposition has in terms stated that there is an alternative method of retrieving the well head without having to drill holes in the casting pipe. We are not concerned with the technical details of the alternative method. Suffice it to say that Mr. Sharma, a witness examined by the O.N.G.C. it self a superior officer under whose supervision the operation was being carried out has in terms admitted that there was an alternative method for carrying out this operation which did not require the holes being drilled and pull being given to a wire rope passed through the holes. The second circumstance on which reliance is placed is that it appears that one Shri R. S. Wirk, a senior driller was entrusted an enquiry in the matter of the accident. Shri Wirk submitted has report dated March 11, 1974. Shri Wirk has not been examined as a witness by the O.N.G.C. However, the report made by him had been produced at the instance of the plaintiff which has been marked as Ex. 57. In his report he has made five suggestions to avoid such amishap in future. The five suggestions made by him are a under :

'(i) If possible well head should be retrieved when deep/work over rig is available at the site.

(ii) Casting should be lifted/pulled with casting spear for releasing slips.

(iii) If complete rig is not available at the site, i.e., only mast is available, casting should be pulled with casing spear, Elevator and links, i.e., no slings should be used.

(iv) When casing spear is not available in the Project. A false coupling of the size casing to be pulled should be welded nicely over the pipes from outside and inside. Before welding coupling, four holes of 30 mm at 90 from each other and 60 to 70 mm from bottom of coupling to be made. Coupling be welded from these holes with casing in addition to other welding as suggested in the para.

(v) Plan be made, discussed and approved by F.S.F.M. before taking up the job.'

The very report would go to show that there was a better method of carrying out the operation than the method employed by Mr. Sidhu. It, therefore, lends strength to the submission urged on behalf of the plaintiff that the method which was employed was a crude method which was fraught with risk. It according to Mr. Wirk a better method exists by which the attendant risk is eschewed, it necessarily means that the method which was in fact applied was not a safe one. For instance, it has been suggested that before welding couplings, four holes of 30 mm at 90 from each other and 60 to 70 mm from bottom of coupling should be made (Suggestion No. (iv). It is also revealed that a plan in this behalf is required to be made, discussed and approved by the Field Superintendent and/or the Field Manager (see suggestion No. (v). It is, therefore, evident that if instead of two holes four holes had been made at the requisite distance and at the requisite angle and the matter was discussed with superior officers having expertise, the accident could have been averted. It is no doubt true that there is an incidental statement in the course of the report to the effect that the method which was adopted was 'not incorrect'. The fact, however, remains that even according to the Inquiry Officer appointed by the O.N.G.C. a better and safer method did exist. If therefore, instead of adopting a safer method and instead of taking proper guidance from the superior officers and planning out the operation Mr. Sidhu had proceeded with the operation on his own without taking the appropriate precautions to avoid any mishap he was at fault. This circumstance also establisher that the method employed was not a safe method. Taking a cumulative view of all the aforesaid circumstances, we feel it safe to hold that the method employed was not a safe method as is contended by the plaintiff and to this extent there is a failure on the part of the employer to provide for an adequate plant and appliances in respect of which duty the law is now well settled as stated in paragraph 1046 of 'Charlesworth on Negligence'. The statement of law may be quoted :

'A reasonable employer must make up his mind firstly whether plant and appliances are required for the particular job or not and if they be needed the choice and type of such must be decided by him, since the provision of proper plant, according to Sir Arthur. Channell is 'especially within the province of the master rather than of his servants.' The maser's duty as to the appliances used by the servant has been stated by Lord Herschell to be; 'The contract between employer and employed involves on the part of the former the duty of taking reasonable care to provide proper appliances, and to maintain them in a proper condition.' Lord Wright added : 'The obligation to provide and maintain proper plant and appliances is a continuing obligation.' Plant and appliances would consist of practically everything including all such items as tools, equipments and machines, which the workman would need to use in the course of doing his employer's work, as required of him.'

We are, therefore, satisfied that the O.N.G.C. had failed to provide for a safe system of work as also to provide for and maintain adequate appliances and to employ competent servants.

6. The next question which arises is as regards the quantum of damages. The plaintiff has claimed a global amount of Rs. 85,000 but before the commencement of the hearing of the appeal the claim was reduced to Rs. 75,000. Learned counsel for the plaintiff has contended that a sum of Rs. 25,000 should be awarded under the head of pain and suffering and loss of pleasures and amenities of life. He has suffered permanent disfigurement in view of the loss of an eye and there is a detriment to his marriage prospects (he was unmarried at the material time). As a result of the loss of an eye it is but natural that he would suffer an embarrassment in the society and he would also suffer from an inferiority complex. In paragraph 11 of his deposition the plaintiff has stated that he is still feeling difficulty in welding on account of the loss of one eye and that he is unable to drive any vehicle. He has also stated that as he was not able to get a match from his own community he had to marry from outside his community and he had felt some difficulty in getting the mate. There was also the risk of his losing the other eye which would result in his becoming totally blind. There is also the evidence of Dr. Patel to the effect that he would experience difficulty in driving a vehicle. His evidence is to the effect that he would experience difficulty in moving about when there is heavy traffic on the road. Under the circumstances counsel contends that Rs. 25,000 should be awarded on this Court. Reliance has been placed in this connection on Amul Rameshchandra v. Abbasbhai, (1978) 19 Guj. LR. 721 : (AIR 1979 Guj. 14), where the claimant, a young boy of 12 who had suffered the injury which resulted in the amputation of his right leg above the ankle was awarded a sum of Rs. 25,000 under the head of pain and suffering and loss of enjoyment and amenities of life. In view of Amul Rameshchandra's case the appellant is justified in claiming Rs. 25,000 under this head. We have therefore. No hesitation in awarding the claim for Rs. 25,000 under this head in full. In fact Rs. 25,000 is the least that can be awarded in a case of this nature. Since we are awarding the full claim we do not wish to make an in-depth examination of the question whether a larger amount needs to be awarded under this head in view of the fact that loss of an eye may well be considered as a much more serious handicap than the loss of a limb. We therefore, make it explicit that we should not be understood as holding that amount of Rs. 25,000 is adequate or that Rs. 25,000 is the maximum that can be awarded. This question will have to be examined in a fit case when an occasion arises. In the present case since such an occasion does not arise, we will rest content with these remarks.

7. We must now turn to the claim under the head of loss of earning capacity. The plaintiff has deposed on oath that the welding work has to be done with the aid of the eye and that he is not able to do the welding work as efficiently as he used to do previously. According to him, his efficiency is reduced by about 50%. This statement, made by him in paragraph 9 of his deposition has remainded unchallenged. His welding ability was considerably affected by reason of the loss of one eye. The question then is would he or would he not be entitled to a reasonable amount in connection with the claim for loss of earning capacity arising in this context As discussed earlier, Dr. Patel has estimated the permanent disability suffered by him 40%. There is intrinsic evidence to show that the O.N.G.C. itself thought that the plaintiff would not be in a position to discharge his duties in an efficient manner. As deposed by the plaintiff (see paragraph 10)., when the plaintiff reported for duty after the accident upon being discharged from the hospital, he was not posted as a welder but he was assigned a job in the Store Room. He worked as a Store Keeper for about 1 1/2 years. It was only when the summons of the suit giving rise to the present appeal was served on O.N.G.C. that the plaintiff was again given an assignment as a welder. This part of the evidence has remained unchallenged. It is evident that his transfer as a store keeper was not in a routine course or on account of any particular reason connected with his duties as a welder. It was also not an incidnental posting by way of a stopgap arrangement for a limited period. He was kept on the post of a store keeper for as long as 1 1/2 years. It is not as if he was posted as a store keeper because there was retrenchment in the post of welder or that someone else had been appointed as a welder. The very timing of the appointment as a store keeper immediately after his discharge from the hospital goes to show that the change in his work-assignment was made on account of the injury sustained by him and the detriment suffered by him in his capacity to work as a welder. No doubt he has been re-posted. It has been argued by the learned counsel for the respondent that even now he is discharging his duties as a welder. It is, however, a reasonable inference to draw that the posting as a welder after a lapse of 1 1/2 years has been given on account of the pendency of the litigation. It would not be possible to produce better evidence than the evidence which goes to show that O.N.G.C. It self had failed to entrust work as a welder to him but had accommodated him only as a store keeper. There is, therefore, intrinsic evidence to show that the capacity of the plaintiff to work as a welder had been prejudicially affected by reason of the loss of one eye. It is for this damage sustained by him that compensation has to be awarded to him. It is no doubt true that he still continues to be employed by the O.N.G.C. and he has been allowed to function as a welder till now. That, however, is a circumstance which is not germane to question of assessment of damages in connection with the loss of earning capacity. The test to pose in such cases is whether the injured worker can obtain a similar employment in a similar pay scale in the open market. O.N.G.C. itself was prepared to entrust him the work of a welder as discussed earlier. There is no manner of doubt, therefore, that the earning capacity of the plaintiff as a welder was prejudicially affected to a great extent. In the matter of promotion also the plaintiff is bound to suffer. It is no doubt true that the evidence shows that the plaintiff had failed to appear before the Selection Committee for the promotion post. But then it is reasonable to assum that he had failed to appear because of loss of confidence in himself which was a direct result of the injury sustained by him. His evidence shows that many of his co-workers have been able to go overseas on a promotion post and are able to earn large salaries. This part of his evidence is also not challenged in the course of cross-examination. The plaintiff on account of the injury sustained by him would not be in a position to improve his prospects by taking up an assignment overseas. As it is, he is suffering from an inferiority complex as also loss of confidence in his own work. He also cannot leave the service in order to procure a better paid job. Even after retirement, if he had not sustained the injury he would have been able to obtain employment as a welder. Again there is no guarantee that O.N.G.C. will continue to employ him. It is, therefore, abundantly clear that the plaintiff has ceased to be a welder possessing the same efficiency which he had before the loss of the eye. He had suffered a detriment. This detriment has been assessed by Dr. Patel at 40%. Even if one were to consult the schedule appended to the Workmen's Compensation Act, one can find that the percentage of loss of earning capacity for the loss of one eye has been assessed at 40% at item No. 25 Schedule I. We have, therefore, no hesitation in recording a firm finding to the effect that the loss of earning capacity can be safely assessed at 40%. If we apply the method which is being consistently applied and which is in vogue, viz., the method indicated in Amul Rameshchandra's case (AIR 1979 Guj. 14), we can assess the loss of earning capacity with reference to his salary. Now on his point the O.N.G.C. has not adduced any evidence. The evidence of the plaintiff shows that his total emoluments on the date of the accident were Rs. 565 whereas his emoluments on the date of giving evidence were Rs. 700. He was only 33 years of age at the time of giving evidence in 1978. Learned counsel for the appellant has argued that his future increments also should be taken into consideration in adopting the basic figure for making computation. Having regard to the fact that he was earning Rs. 565 at the time of the accident and Rs. 700 at the time of giving his evidence, it would be safe to take the figure of Rs. 600 as the basis for computation. The loss of earning capacity on the basis of 40% would work out at Rs. 240 per month. The annual loss can be worked out at Rs. 2,880. If we take the multiplier of 15 the compensation would work out at Rs. 43,200 (Rs. 2880 X 15). In taking the multiplier of 15 we are making a very conservative approach. Having regard to the fact that he was only 30 years of age at the time of the accident, he had many years to go before retirement and having regard to the nature of his employment as a welder, he could have obtained employment even after retirement. Having regard to the facts and circumstances of the case, in our opinion a multiplier of 15 can be safely adopted. The plaintiff would, therefore, be entitled to compensation to the tune of Rs. 43,200 under this head.

8. The plaintiff has also claimed damages in connection with the expenditure he has had to incur for going to Delhi on one occasion for replacement of an artificial eye and to Aligarh on another occasion. His evidence also showed that he would have to incur expenditure from time to time in connection with the replacement of the artificial eye or treatment in connection therewith. No doubt the plaintiff has not been able to produce any vouchers in connection with the sundry expenses incurred by him. However, the evidence on the point that he had to go to Delhi and Aligarh had not been challenged. The O.N.G.C. could have easily established that he had not taken any leave or had not proceeded to Delhi or Aligarh. The evidence of Dr. Patel also shows that it would not be possible to get the artificial eye inserted at Ahmedabad. We have no reason to disbelieve his evidence on this point. We think a small sum of Rs. 1800, can be awarded to the appellant in this connection.

9. In all, therefore, the plaintiff is entitled to a total sum of Rs. 70,000 by way of compensation made up as under :

Rs. 25,000-00 in connection with pain and sufferingand loss of amenities.Rs. 43,200-00 in connection with loss of earning capacity.Rs. 1,800-00 in connection with the expenditure incurredfor getting an artificial eye inserted.-------------Rs. 70,000-00 Total.-------------

10. The appeal is, therefore, partly allowed. The decree passed by the trial Court is set aside. The respondent - Oil & Natural Gas commission is directed to pay Rs. 70,000 as compensation for the loss sustained by the plaintiff along with interest at 6% with effect from the date of the institution of the suit on 18-9-1974 (that was the date on which the application as an indigent person was presented in the Court which was subsequently registered as a suit). The respondent will also pay costs to the extent of the success of the appellant throughout. The respondent shall deposit the decretal amount on or before April 30, 1980.

11. We direct under Order 33 Rule 1 of Civil Procedure that the court-fees payable by the appellant in respect of the plaint instituted by him in the trial Court as also the appeal memo lodged in the High Court in the first appeal will be recoverable by the State Government form the defendant-Corporation, order accordingly.

12. Learned counsel for the respondent-Corporation applies for a certificate of fitness to appeal to the Supreme Court of India under Art. 133 of the Constitution. Since the case does not involve any substantial question of law of general importance which in the opinion of this High Court needs to be decided by the Supreme Court, we are unable to accede to the request. Certificate is, therefore, refused.


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