Judgment:
A. Pasayat, J.
1. In this appeal under Sec. 30 of the Workmen'sCompensation Act, 1923 (in short, 'the Act'),Orissa State Electricity Board {in short, the Board')and its functionaries call in question legality ofaward made by the Commissioner, for Workmen'scompensation cum. Assistant Labour Commissioner, Cuttack (in short, 'the Commissioner')awarding Compensation of Rs. 40,770/- toKedar Charan Lenka (hereinafter referred to as'the claimant').
2. The award came to be made on the following background: Claimant filed a claim application under the Act claiming compensation of Rs.60.000/-for allegedly having sustained injuries in an accident while on his duty. While he was performing his duty of repairing the electric lines at Kundai under Kotapada section on August 12,1993, he met with accident and sustained injuries arising out of and in course of his employment. It was accepted by the Board and its functionaries that the claimant was an employee and had met with an accident on August 12,1993 in course of his employment. But, the gravity of injuries and age of the claimant were disputed. It was also contended that there was no loss of earning capacity, and therefore, question of entitlement to any compensation did notarise.
Considering the materials on record, the Commissioner held that the claimant was enti-tied to compensation. Plea of the Board that there being no loss of earning the claimant was not entitled to any compensation did not find acceptance by the Commissioner, and award was made.
3. Mr. B.K. Nayak, learned counsel for the Board and its functionaries submitted that since the claimant was re-engaged and was getting his usual salary, there was no loss of earning capacity and therefore, the question of any compensation does not arise. Strong reliance is placed by him on a decision of this Court in Misc. Appeal No. 374 of 1992 disposed of on March 16, 1995 to buttress the stand that when there has been continuance of engagement there cannot be any loss of earning capacity. Additionally it is submitted that the quantum awarded is high.
Mr. R.N. Mohanty, learned counsel appearing for the claimant, on the other hand, submitted that the plea advanced by the Board and its functionaries cannot be maintained. Mere re-engagement cannot deprive the workman benefit of compensation. The Commissioner has assessed the loss of earning capacity at 40% with reference to the evidence of the doctor (PW2), and therefore no interference is warranted.
4. For appreciating the rival submissions, a reference to Section 4(1)(c)(ii) of the Act is necessary. The same reads as follows:
'4. Amount of compensation-(i) Subject to the prqvison of the Act, this amount of compensation shall be as follows, namely:
(a) and (b) xx xx x
(c) where permanent permanent partial disablement results from the injury.
(i) xx xx
(iii) in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as proportionate to the loss of earning capaicity (as assessed by the qualified medical practitioner) permanently caused by the in-Jury.'
5. Board's stand is absence of loss of earning, while claimant lays emphasis on loss of earning capacity. The two concepts have conceptual difference. In case there is no loss of earning and there is continuance of engagement, a reference to Section 4(1)(c)(ii) of the Act is necessary to appreciate the distinction. The plea of employers that in case of continuance of engagement and non-reduction in earning compensation is not payable has not found favour with Courts. As observed by the House of Lords in the case of Ball v. William Bum and Sons Ltd: 1912 AC 496, the Act regarded a workman only as a wage-earner and was concerned not with physical pain or suffering or disfigurement to which a workman might be subjected by accident; but only with the loss of power to earn wages resulting from the injury. Lord Denning in Fairloy v. John Thomson : 1973 2 Lloyd's Sop. 40 observed as follows:
'It is important to realise that there is a difference between an award for loss of earnings as distinct from compensation for loss of earning capacity. Compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution of earning capacity is awarded as part of general damages.'
Similar view has also been taken by the Court of Appeal, Civil Division, England in Moeliker v. Ravorile and Co. Ltd: 1977 SCJ 364. 'Incapacity : for work' is not the same thing as 'incapacity to work'. Latter means the loss or diminution of wage-earning capacity and it includes inability to work if that be the result of the accident. Calcutta High Court in Ram Naresh Singh v. Lodha Colliery Co. Ltd: 1973 Lab.IC 1656; Sarat Chatterjee and Co. (P) Ltd. v. Mohd. Khalil 1979 ACJ 106; and the Rajasthan High Court in Executive Engineer, PWD Udaipur v. Narain Lal: (1978-1-LLJ-141) have adopted the view . In considering loss of earning capacity in the case of a 'permanent partial disablement', the comparison between the wages drawn by the workman before and after the accident from his employer at the time of accident is not a determinative factor. If that be so, a cunning employer to tide over liability may offer a temporary employment to theclaimant workman to deprive the latter his entitlements under the Act. That would be against the legislative intent. This Court had also occasion to deal with an almost similar case where plea of existing job allotment and non-reduction in wages was involved . The present appellant was the employer in that case. (See Debaki Swain and Anr. v. Executive Engineer, Electrical Division, Bhawanipatna, Orissa State Electricity Board 1988 ACJ 836. Plea that there being no loss in the earning, compensation could not have been awarded was not accepted. The matter was also elaborately discussed in Chief Workshop Manager (P), Carriage Repair Workshop, Mancheswar Railway Workshop, Bhubaneswar v. Sri Akshaya Kumar Rout, 1995 80CLT 594. Legislative intent is to consider loss of earning capacity in cases of permanent partial disablement. The effect of any temporary engagement and or temporary job may practically result in no reduction in emoluments . That does not have any determinative effect. Plea of the Board and its Functionaries is without any merit.
6. So far as New India Assurance Co. Ltd case (supra) (N.A. No. 374 of 1992 disposed of on February 16, 1995) is concerned,a bare reading of the judgment shows that the learned Judge accepted that in an appropriate case there can be a distinction between the concept of loss of earning and the loss of earning capacity. On the facts involved in that case the positive finding was that there was no injury worth the name which might be considered to have resulted any loss of earning or loss of earning capacity, and therefore, no compensation was awarded. The decision, therefore, is of no assistance to the applicant.
7. So far as quantum is concerned, I find that the Commissioner has erroneously equated the percentage of physical disability with the loss of earning capacity. The two are conceptually different. While the former may throw some, light in the process of assessment of the latter, that is not the determinative factor. It is no doubt true that money cannot renew a physical frame that has been battered and shattered, but the Judges and Courts can award sums which must be regarded as giving reasonable com-pensation (as observed by Lord Morris in H. West, andSonLtd. v. Shephared: 1958-65 ACJ 504. (H.L. England). The greatest element of damage in many cases is the pain, suffering and loss of ordinary pleasures and convenience associated with healthy and mobile limbs. All that the Court can do is to award such a sum as will enable the claimant to acquire some material possessions or to develop a life style which will offset to some extent his terrible disability. See Thomas v. British Railways Board 1977 ACJ 222 (C.A. England, per Scarman L.J.)
8. In normal course I would have remitted the matter back to the Commissioner for fresh adjudication. But considering the object behind the enactment of the Act, inter alia intending to provide immediately assistance to the affected person(s), passage of nearly three years from the date of accident, I find substance in the plea of learned counsel for the claimant to give finality to the proceeding taking into consideration all relevant materials available on record. The end of litigation leads to attainment of social jus-; tice. That is why Lord Hailsham said:
'It is not only important to realise that litigation is an evil it is also important to realise that neither speed nor cheapness for univer-sality are the ultimate ends of litigation. The ultimate end is justice..........'
Considering the nature of injuries and the materials relating thereto brought on record, I fix theloss of earning capacity at 30% . The entitlement of the claimant comes to Rs. 30,578/- Out of the said amount a sum of Rs. 20,000/- shall be kept in a fixed deposit in a nationalised Bank for a period of five years. No withdrawal shall be permittedwithin the stipulated period. However, on the Commissioner being moved and being satisfied about the pressing need for money, may permit withdrawal of such amount which would meet the requirement. The balance amount be paid in cashto the claimant on being identified by any of the learned counsel appearing for him before the Commissioner. The amount in excess of Rs 30,578/- be remanded to the appellant.
The appeal is allowed to the extent indicated above.