S. Venkataraman, J.
1. This appeal is filed by the employer against the order of the Commissioner for- workmens compensation, Mandya District, Mandya, questioning the correctness of the award of Rs. 55,243/-as compensation to the respondent for injuries sustained by him in an accident which took place on 23.11.91.
2. It is not disputed that on 23.11.91 when the respondent was attending to his work near Juice Suppuration Tank in the factory of the appellant he fell from a height of 15 feet and sustained some injuries. Though the appellant sought to make out that the accident took place only on account of the negligence of the respondent, the Commissioner has found that the respondent sustained the injuries in an accident while attending to his work. This finding is not disputed now. The Commissioner on the basis of the evidence of the respondent and the doctor examined by him has assessed the loss of earning capacity at 50% and on that basis awarded the compensation of Rs. 46,043/- and has also awarded interest of Rs. 9,210/-
3. The main contention urged on behalf of the appellant is that the appellant has continued in service under the appellant and is drawing the same salary and that in view of this it cannot be said that the respondent has suffered any loss of earning capacity. It was also submitted that when the medical evidence showed that the respondent had suffered permanent disability of 40% of his legs there was no justification for the Commissioner to assess the loss of earning capacity at 50%. In support of his contention, that when the employee has continued in service without any loss of wages he would not be entitled to any compensation, the Learned Counsel for the appellant relied on the decision of this Court in THE MYSORE SUGAR CO. LTD. v. B.G. SIDDARAMAIAH, : (1997)IILLJ1170Kant
4. The Learned Counsel for the respondent contended that the question whether the appellant has continued in service drawing the same wages is not relevant to find out whether he has suffered any loss of earning capacity and that the loss of earning capacity wilt have to be determined with reference to the nature of disability left over as a result of the accident and with reference to the question whether on account of the disability the employee is able to perform all work which he could have performed prior to the accident. According to him in this case the evidence shows that the respondent is not able to carry out alt works which he could do prior to the accident and that the assessment of the loss of earning capacity made by the Commissioner is quite proper and that there is no good ground to interfere with the assessment made' by the Commissioner.
5. Before considering the legal point urged by the Learned Counsel for the appellant it is better to refer to the injuries sustained by the respondent in the ccident and the nature of the permanent disability he is suffering from. The evidence of Dr. Vidyaprasad, who was working as Assistant Surgeon in the Government Hospital at Mandya and who examined the respondent, shows that both the legs of the respondent had swollen and there was severe pain in the feet and legs, that ex-ray photographs disclosed that the bones of both heels had fractured and even the bones in the middle portion of the two feet had broken. He was given plaster of paris and till the date of the examination of the doctor, the respondent was takingtreatment as an out-patient. According, to the doctor at present there is restriction in movement of both legs, that he cannot do any work standing for long time, that he cannot walk long distances, that the respondent cannot do the work of carrying lime and standing near the valve and work as a mazdoor. In conclusion the doctorhas stated that the respondent cannot do any work which requires him to stand. He has assessed the permanent disability at 20% in each leg.
6. The respondent in his evidence has stated that now he is not able to walk or stand, that if he stands for long both his legs would be swollen, that he has to walk with the help of a stick, that he cannot bend his legs nor can he do any work which requires him to bend and that he cannot attend to his daily chores without the help of others, that if he sits he will not be able to get up without help. He further stated that now he only sits near the Juice Heater and watches the guage and he is not in a position to do the work which he was previously doing.
7. The Commissioner has accepted the evidence of the respondent and the doctor with regard to the permanent disability suffered by the respondent and no substantial question of law is involved in the finding of the Commissioner in this regard.
8. This is not a case of total disablement. The injuries sustained by the respondent are not scheduled injuries. Section 2(1)(g) defines partial disablement as hereunder:
'2(1)(g) 'partial disablement' means, where the disablement is of a temporary nature, such disablement as reduces the earning capacity of a workman in any employment in which he was engaged at the time of the accident resulting in the disablement, and, where the disablement is of a permanent nature, such disablement as reduces his earning capacity in every employment which he was capable of undertaking at that time; provided that every injury specified in Part II of Schedule I shall be deemed to result in permanent partial disablement;'
A perusal of the definition shows that in the case of partial permanent disablement what is required to be found out is whether such disablement reduces his earning capacity in every employment which he was capable of undertaking at the time of the accident. As such what the Commissioner is required to investigate is whether the injured employee is able to do all works which he was capable of doing prior to the accident and if he is not so capable then to determine the loss of earning capacity on that basis. The question whether the employee has continued in the service of the employer even after the accident, is not relevant for the purpose of determining the loss of earning, capacity. However, if the evidence shows that inspite of the permanent disability the employee is carrying on the same work which he was carrying on prior to the accident and that he is also capable of doing all other work which could have been done prior to the accident, then it would not be possible to hold that the employee has suffered any partial permanent disablement resulting in loss of earning capacity. It may be noted that in respect of scheduled injuries there is a statutory presumption that the employee has suffered the percentage of loss of earning capacity as mentioned in the schedule. The decided cases indicate that even that percentage is the minimum and that depending upon the facts and circumstances, of the case the Commissioner can fix the loss of earning capacity at a percentage higher than what is shown in the schedule. This also shows that for the purpose of determining the loss of earning capacity the question whether the employee has continued in service earning the same wages may not be very relevant.
9. In MANAGEMENT OF SREE LALITHAMBIKA ENTERPRISES, SALEM v. S. KAILASAM, 1986 ACJ 1150 a Division Bench of the Madras High Court, referring to a contention that the employee had continued in service drawing the same salary and as such he cannot be said to have suffered any loss of earning capacity, has held as hereunder:
'Coming to the scope of Section 4(1)(C)(ii) of the Act, we are of the view that the loss of earning power should not be confined only to the present capacity because it is contended by the management that at the same salary the workman is continued in employment. That will be only begging the question. If this were to be the law, the employer can easily evade the provisions of the Act by continuing the employment on the same terms as were enjoyed by the workman prior to the accident. Therefore, we are unable to agree with the view taken by the Punjab High Court in SEWA SINGH v. INDIAN HUME PIPE CO., AIR 1964 Punjab 512. Nor again can it be said that if in future the workman is compelled to seek employment at reduced wages he can claim compensation. That would only result in the negation of the beneficial provisions of the Act which are intended to benefit unfortunate workmen like the respondent herein. Added to this, should the management wind up its business, the workman will be in the lurch because no person with his eyes open will give employment to a person who had suffered an injury of this kind. Therefore, this is clearly a case to which Section 4(1)(c)(ii) of the Act would apply. Consequently, we agree with the judgment forming the subject-matter of the appeal.'
10. In the present case the appellant has not adduced any evidence to show that the respondent is either carrying on the same work which he was doing prior to the accident or that he is capable of undertaking every employment which he was capable of doing prior to the accident. The evidence of the respondent is supported by the medical evidence stands unrebutted. There is clear material on record to show that the disablement suffered by the respondent has reduced his earning capacity in every employment which he was capable of undertaking prior to the accident.
11. In THE MYSORE SUGAR CO. LTD v. SIDDARAMAIAH the injured was working as a Cane Superintendent at the time of the accident and he continued to work as such even after the accident and it was not even pleaded by the employee that by reason of disablement he experienced any difficulty in doing his work of a Cane Superintendent or that he is incapacitated to any degree whatever from earning in every other employment which he was capable of undertaking at the time of the accident, let alone furnishing proof thereof. It is on those facts the Court held that the employee cannot be said to have suffered any loss of earning capacity but that decision cannot be of any help to the appellant, as in this case there is clear evidence on the ability of the respondent to do the work which he was previously doing as well as the work which he was capable of doing previously.
12. With regard to the assessment of the percentage, of loss of earning capacity there was medical evidence with reference to the nature of the disability suffered by the employee and its effect on the employment which he was capable of undertaking prior to the accident. The Medical Officer has assessed the permanent physical disability and he has also spoken of its effect on his employment. It is on the basis of that evidence the Commissioner has assessed the loss of earning capacity. The Commissioner has discretion to assess the loss of earning capacity with reference to the medical evidence and in the present case his assessment cannot be said to be grossly excessive so as to call for interference in appeal.
13. For the foregoing reasons this appeal cannot succeed and the same is dismissed with costs.