Judgment:
A. Pasayat, J.
1. Award of compensation to Akshaya Kumar Rout, respondent in this appeal (hereinafter referred to as 'the claimant'), by Joint Labour Commissioner-cum-Commissioner for Workmen's Compensation, Orissa, Bhubaneswar (in short, 'the Commissioner') is the subject-matter of challenge by the employer, Indian Railways.
2. Claim for compensation lodged by the claimant under the Workmen's Compensation Act, 1923 (in short 'the Act') was essentially on the following background:
On 4.8.1986 at about 9.20 a.m. while the claimant was working as fitter in Mancheswar Coach Repairing Workshop of the S.E. Railway, he sustained grievous injuries like fracture of hip joint due to accident which arose out of and in the course of his employment. He was 25 years of age and was getting Rs. 1,200/-per month as wages. On account of the said accident he has become permanently disabled to some extent. The Chief Workshop Manager (P), Carriage Repair Workshop, Mancheswar Railway Workshop, was impleaded as opposite party in the claim application.
3. The stand of the opposite party, the appellant in the present appeal, was that the claimant was in service and was getting his full salary. There was no question of any disability or loss of earning capacity.
Considering the materials placed for consideration the Commissioner awarded Rs. 18,804.75 holding that there was loss of earning capacity to the extent of 45 per cent.
4. To further his claim about loss of earning capacity the claimant had submitted the disability certificate issued by Dr. Shribatsa Dash and orthopaedic handicapped certificate issued by Dr. P.K. Rath.
5. The primary ground of assail in this appeal is that the claimant having rejoined his duty after treatment there is no question of any physical disability much less any loss of earning capacity. The learned counsel for the claimant, on the other hand, supported the award.
6. 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.-(1) Subject to the provisions of this Act, the amountof compensation shall be as follows, namely:
(a) and (b) xxx xxx xxx
(c) where permanent partial disable- (i) xxx xxx xxx
ment results from the injury (ii) 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 is proportionate
to the loss of earning capacity
(as assessed by the qualified medical
practitioner) permanently caused by
the injury.
7. Coming to the question of entitlement of a claimant 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. 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 the courts. As observed by the House of Lords in the case of Ball v.William Bunt and Sons Ltd. 1912 AC 496, the Act regarded a workman only as a wage-earner and was concerned not with any physical pain or suffering or disfigurement to which a workman might be subjected to 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.
This view has also been taken by the Court of Appeal, Civil Division, England, in Moeliker v. Key wile and Co. Ltd. 1977 ACJ 364 (CA, England). 'Incapacity for work' is not the same thing as 'incapacity to work'. It means the loss or diminution of wage-earning capacity and it includes inability to work if that be the result of the accident. Similar view has been taken by Calcutta High Court in the case of Ram Naresh Singh v. Lodha Colliery Co. (1920) Ltd. 1973 Lab IC 1656; Sarat Chatterjee & Co. v. Mohd. Khalil 1979 ACJ 106 (Calcutta); and the Rajasthan High Court in Executive Engineer, P.W.D. (B&R;), Udaipur v. Narain Lal 1978 ACJ 163 (Rajasthan). In considering loss of earning capacity in case of 'permanent partial disablement', the comparison between the wages drawn by the workman before and after the accident, from his employer at the time of the accident is not a determinative factor. If that be so, a cunning employer to tide over liability may offer a temporary employment to the claimant workman to deprive the latter his entitlements under the Act. That would be against the legislative intent. This court also had occasion to deal with an almost simitar case where a plea of existing job allotment and non-reduction in wages was involved. The employer-appellant was the employer in that case. A view similar to the one taken by the above decision was taken. [See Debaki Swain v. Executive Engineer, Electrical Division, Bhawanipatna, Orissa State Electricity Board 1988 ACJ 836 (Orissa)]. Therefore, the plea that there being no loss in the wages, compensation could not have been awarded is not acceptable. In that view of the matter, the only plea raised by the appellant fails.
There is no merit in this appeal which is accordingly dismissed.