B.P. Das, J.
1. The workman being aggrieved by the Judgment dated 10.9.1999 passed by the Asst. Labour Commissioner & Commissioner for Workmen's Compensation, Rourkela, ('Commissioner' hereinafter) in W.C. Case No. 38/99 has filed this appeal under Section 30(1) of the Workmen's Compensation Act, 1923 (in short 'the Act') for enhancement of the compensation awarded by the Commissioner.
A Learned single Judge of this Court while hearing this appeal found that the Division Bench decision of this Court in C. David v. Gobind Chandra Mishra and Anr. 1997 (I) OLR 353, and the single Judge decision in Golakha Chandra Bej v. Gobinda Hari Passoria and Anr. 1997 (II) OLR 146, both rendered relying upon the decision of the Supreme Court in Pratap Narain Singh Deo v. Shrinivas Sabata and Anr. : (1976)ILLJ235SC , were contradictory. Keeping in view the conflicting opinions and the importance of the question involved, the Learned single Judge by Order Dated 14.3.2000 referred the matter to a larger Bench and that is how this matter is placed before this Bench to resolve the issue.
2. In order to appreciate the scope of the reference, it would be apt to notice the facts of the case in brief which are as hereunder:
The Appellant-workman was employed as a Khalasi in the truck bearing registration No. ORS 4128 owned by Respondent No. 1 and insured with Respondent No. 2 - New India Assurance Co. Ltd., Rourkela. The said truck while proceeding from Rourkela towards Jharsuguda met with an accident on 26.4.1999 as a result of which the Appellant, who was on duty, sustained serious injuries which ultimately led to amputation of his left hand below shoulder. The Appellant filed an application before the Commissioner claiming compensation to the tune of Rs. 2,28,400/- against the owner as well as the insurer of the truck on the ground that he has become permanently disabled due to amputation of his left hand in the accident arising out of and in course of his employment.
The Appellant in support of his claim adduced evidence and examined apart from him one Sarat Nayak and relied upon as many as five documents including the F.I.R. and the medical bills. His claim was that he was permanently disabled; he was getting salary @ Rs. 1700/- per month and was aged 20 years at the time of the accident. The Commissioner framed two issues namely, (i) what is the quantum of compensation payable? and (ii) whether the owner of the truck in question or the insurer of the said truck was liable to pay compensation?
The Commissioner on consideration of the materials on record found that the Appellant was employed by Respondent No. 1 in the truck in question; he met with an accident arising out of and in course of his employment on 26.4.1999: the monthly wages of the Appellant were Rs. 1350/- and his age at the time of the accident was 20 years. The Commissioner further found that the amputation of left hand below the shoulder being a scheduled injury, as per Schedule I, Part II, the Appellant has lost 70% of his earning capacity due to such injury and calculated the compensation at Rs. 1,27,008/- and fixed the liability of payment of the compensation amount on the owner of the truck, as the relationship of employer and employee was established in course of trial, but directed the insurer of the vehicle to indemnify the owner since it was found that the vehicle was duly insured with the insurer.
3. The Appellant claiming higher compensation has filed this appeal on the ground that as the injury sustained by the Appellant rendered him permanently disabled, the percentage of loss ought to have been determined at 100% and not at 70%, which is the minimum prescribed under the schedule. The further ground taken in this appeal is that the quantum provided in Schedule I, Part II, is minimum and does not preclude the Commissioner from assessing the compensation at a higher percentage in view of the fact that the disablement of the claimant-Appellant is total and not partial. Law in this regard is well settled that if the injury makes the workman unfit for the work which he was discharging prior to the accident, the disablement is total and not partial.
4. While hearing this appeal, the Learned single Judge considered the decisions relied upon by the Appellant in Canara Public Conveyance Co. Ltd. v. Usman Khan 1966 (1) LLJ 826, and National Insurance Co. Ltd. v. Narendra Samal and Anr. : (1999)IIILLJ363Ori . Learned Counsel for the insurance company very fairly brought to the notice of the Learned single Judge that even though in the decisions in Pratap Narain Singh Deo v. Shrinivas Sabata and Anr. : (1976)ILLJ235SC and Sri Gopal Singh v. Sri Nilamani Pradhan 1987 (I) OLR 174, the injuries were scheduled injuries keeping in view the total loss of earning capacity, higher compensation was granted by the Apex Court as well as this Court. Attention of the Learned single Judge was drawn to the Division Bench decision of this Court in David (supra) in which taking note of Pratap Narain Singh Deo (supra) it was held that the loss of earning capacity has to be adjudged in respect of every employment and not merely the job in which the injured was employed. However, in Golakha Chandra Bej (supra) the Learned single Judge of this Court referring to the same decision of the Supreme Court in Pratap Narain Singh Deo (supra) opined that loss of earning capacity has to be adjudged by keeping in view the nature of job for which the injured was suitable. The Learned single Judge found that there was apparent contradiction between the decisions in David (supra) and Golakha Chandra Bej (supra).
5. In this regard Learned Counsel for the Appellant referred to Section 2(1)(g) of the Act which defines 'partial disablement'. According to the Learned Counsel, the Act contemplates two types of disablement - one is partial disablement of a temporary nature and the other is partial disablement of a permanent nature. Section 2(1)(I) of the Act defines 'total disablement' to mean such disablement whether of a temporary or permanent nature as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement. According to the Learned Counsel for the Appellant the definition given for 'total disablement' as indicated above, did not speak of capacity to work but incapacity to work. According to him the preposition 'for' appearing in the phrase 'incapacitates a workman for all work' appearing in Clause (I) makes it manifest that the incapacity to which that Clause refers is not physical incapacity but incapacity to secure employment produced by the injury which caused the disablement. If there be such incapacity to secure employment whatever may be physical ability to perform work Involved in such employment and if there be no one who in the usual course of events would be willing to offer him such employment there would remain in the workman no longer that modicum of the earning capacity, on the existence of which alone could it be said that the incapacity was not complete. It was further argued by the Learned Counsel for the Appellant that the question whether there is partial or total disablement is dependant essentially upon the consequences of the injury and not upon whether the injury is one specified in Schedule I. According to him, this is made clear in Section 4(1) of the Act where the emphasis is on the consequence which the injury produces and not upon the injury itself. In both the types of injury, scheduled and non-scheduled, the basic criteria for determination of amount of compensation is the same, i.e., the loss of earning capacity but by providing deemed loss of earning capacity, as indicated in Schedule I, the Legislature has fixed the minimum compensation for which the workman is not required to lead further evidence. In the aforesaid premises, an argument was advanced by the Learned Counsel for the Appellant that loss of earning capacity has to be calculated in terms of permanent disability to which the workman is subjected and in considering the loss of earning capacity in the case of permanent partial disablement, the comparison between the wages drawn by the workman before and after the accident is not the determinative factor.
Referring to the decision in Prafap Narain Singh Deo's case (supra) Learned Counsel for the Appellant submitted that in the aforesaid case the Apex Court held that the compensation is to be determined with reference to loss of earning capacity and not loss of physical capacity and the said earning capacity is to be examined with reference to the nature of job the workman was doing at the time of the accident.
6. Learned Counsel for the insurer-Respondent No. 2, emphatically submitted that partial disablement when permanent must involve loss of earning capacity, not merely in occupation the man had at the time of accident, but in every occupation which he was then capable of carrying on. Consequently in calculating the loss of earning capacity, the possibility of the man obtaining different type of job must be borne in mind. This argument was advanced referring to page 55 of Clow's Workmen's Compensation Act, 3rd Edition. It was further argued that to claim total loss of earning capacity, the workman must show and prove that his working potentiality has been diminished to such an extent that he will no more be able to sell his labour for any type of work whatsoever and no employer will come forward to employ him in any sort of work. In other words the workman loses his working capacity in all work and not the very employment for which he was engaged during the time of accident.
According to the Learned Counsel for the insurer, the Supreme Court in Pratap Narain Singh Deo's case (supra) dealt with the case of a carpenter and due to amputation of his left arm he could not do the carpentry work or any other work incidental thereto and since the avocation as carpenter was totally lost, the Apex Court held that the loss of earning capacity was 100%. But it was argued that the aforesaid decision had no universal application when judged with the working potentiality of an unskilled workman and in order to assess the loss of earning capacity of such a workman the Court is to assess the same with reference to the Schedule appended to the Act in the context of Sections 2(1) and 4. According to him the Court cannot override the Schedule to give higher compensation. The Learned Counsel for the insurer referring to the decision of the Apex Court in Shiv Kumar Sharma v. Santosh Kumari 2007 AIR SCW 6384 submitted that the High Court while deciding appeal is bound to act within the four corners of the statute. The sum and substance or the argument of the Learned Counsel for the insurer was that when the statute postulates and quantifies the loss of percentage of earning capacity for loss of a limb the Courts are bound to act within the scope and ambit of the statute and they cannot travel beyond the statute to give higher benefit to the workman.
7. Before going into the question raised before the Learned single Judge as well as before this Bench, let us see whether the question was raised before the Commissioner, who was the fact finding authority and, if so, how the Commissioner has dealt with the same.
As stated earlier the Commissioner framed two issues namely, '(1) What is the quantum of compensation payable? and (2) Whether the Opposite Party No. 1 or Opposite Party No. 2 is liable to pay compensation?'
The lower Court record produced before us shows that the Insurer though fully participated in the proceeding and contested the claim of the claimant by filing an objection to the same had not raised the question now raised save and except disputing the age and the wage of the claimant in a routine manner.
8. However, before delving into the merit of the arguments advanced by the Learned Counsel for the respective parties, let us have a look at the decision of the Apex Court in Pratap Narain Singh Deo's case (supra) which was relied upon by both the parties. In the aforesaid case the Apex Court in paragraph 5 held thus:
The expression 'total disablement' has been defined in Section 2(1)(I) of the Act as follows:
(I) 'total disablement' means such disablement, whether of a temporary or permanent nature, as incapacitates workman for all work which he was capable of performing at the time of the accident resulting in such disablement.
It has not been disputed before us that the injury was of such a nature as to cause permanent disablement to the Respondent and the question for consideration is whether the disablement incapacitated the Respondent for all work which he was capable of performing at the time of the accident. The Commissioner has examined the question and recorded his finding as follows:
The injured workman in this case is carpenter by profession.... By loss of the left hand above the elbow, he has evidently been rendered unfit for the work of carpenter as the work of carpentry cannot be done by one hand only.
This is obviously a reasonable and correct finding. Counsel for the Appellant has not been able to assail it on any ground and it does not require to be corrected in this appeal. There is also no justification for the other argument which has been advanced with reference to Item 3 of Part fl of Schedule I, because it was not the Appellant's case before the Commissioner that amputation of the arm was from 8 'from tip of acromion to less than 4 1/2' below the tip of olecranon. A new case cannot therefore be allowed to be set up on facts which have not been admitted or established.
In the case at hand also, as we have indicated earlier, the question raised before the Learned single Judge was not raised before the Commissioner. A new case has been advanced at the stage of appeal. The same, in our considered opinion, should not have been entertained by the Learned single Judge. At this stage, it should be borne in mind that in this case the Appellant was working as a Khalasi in the truck and his left hand from below the shoulder was amputed due to the accident arising out of and in course of his employment.
9. In the backdrop of the decision of the Apex Court in Pratap Narain Singh Deo's case, let us examine the reference made by the Learned single Judge whether there is any contradiction between this Court's Division Bench decision in David's case (supra) and the Learned single Judge's decision in Golakha Chandra Bej's case (supra). On perusing the Division Bench decision in David's case, it is found that the Bench elaborately dealt with the matter referred to the decisions in Pratap Narain Singh Deo's case and Narendra Samal's case (supra) and came to the conclusion that while assessing the compensation the Court has to see whether the earning capacity of the injured has been reduced in every employment and not merely in particular employment in which he was engaged at the time of the accident. Admittedly David's case is a case of non-scheduled injury, in Golakha Chandra Bej's case (supra) the Learned single Judge referred to Pratap Narain Singh Deo's case (supra) and several other decisions and held that the test to determine total disablement is to find out whether the injured is capable of doing the work which he was doing at the time of accident. It was further held that whether a particular limb or member has become unfit for use is also required to be examined with reference to the nature of the job or employment or work in which he was engaged on the eve of the accident. If a driver cannot use one hand or leg for the purpose of driving the vehicle he is thereby totally incapacitated to drive vehicle and the said hand or leg is to be regarded as totally unfit for use in relation to him for the purpose of assessment of loss of earning capacity.
The Division Bench in David's case (supra) observed that the decision rendered in a scheduled injury would not be an authority to a claim where the quantum of compensation is required to be determined in case of a non-scheduled injury. Admittedly the present is a case of scheduled injury.
10. To answer the query raised, let us refer to the decision of the Madhya Pradesh High Court in United India Insurance Co. Ltd. v. Balwant Singh and Anr. 1996 (73) FLR 1695. In the aforesaid decision it was held that in the absence of evidence that the employer of the Respondent has given any alternative employment or the Respondent is doing some other job, the finding recorded by the Commissioner that after the accident the injured workman has become permanently disabled it being a case of total disablement, the workman is not debarred from claiming compensation more than the specified in the Schedule for the loss of earning capacity. In National Insurance Co. v. R. Vishal and Anr. 1992 ACJ 590, a Division Bench of Karnatak High Court following the decision in Pratap Narain Singh Deo's case (supra) observed that the question as to whether a particular claimant has suffered partial disablement or total disablement should depend upon the nature of employment and further if in a given case, an alternative employment is given by the same employer that factor can be taken into account, it was observed that in case of specific instances percentage as specified in the Schedule should be accepted and compensation should be awarded without any proof of loss of earning capacity but a claimant is not debarred from proving that he has suffered higher percentage of loss of earning capacity.
We may now refer to Golakha Chandra Bej's case (supra) in the aforesaid case it was held in paragraphs 7, 8, 9 and 10 as follows:
7. The Learned Advocate for the Insurance Company has contended that the injuries suffered by the claimant not being the injuries included in Part-I of the Schedule 1 to the Act, the loss of earning capacity cannot be assessed at 100%.
8. In the Note to the Schedule 1 of the Act, it has been clarified: 'complete and permanent loss of the use of any limb or member referred to in this Schedule shall be deemed to be the equivalent of the loss of that limb or member'. It is clear from the said note that if a limb or member is rendered unfit for use, it would be treated as a loss of that limb or member and an injury under Part I of the Schedule 1. Whether a particular limb or member has become unfit for use is also required to be examined with reference to the nature of the job or employment or work in which he was engaged on the eve of the accident. If a driver cannot use one hand or leg for the purpose of driving the vehicle he is thereby totally incapacitated to drive vehicle and the said hand or leg is to be regarded as totally unfit for use in relation to him for the purpose of assessment of loss of earning capacity. Once such loss of the use of the limb is established, it amounts to a loss of that limb and comes under Part I of Schedule 1.
9. In the present case the nature of the injuries and the physical condition of the claimant as evident from the materials on record clearly indicate that the claimant's left arm and one leg have become totally unfit for use for driving a vehicle. Such loss of use amounts to loss of the limb and under Part I of Schedule 1 to the Act.
10. Moreover physical disability and the loss of the earning capacity are not always the same thing. The doctor has assessed the disability of the claimant at 70%. But his other statements in evidence show that the loss of earning capacity is total and permanent. The Commissioner has committed serious error in comparing between the disability and the loss of earning capacity and in assessing the loss of earning capacity at 70%. It is a case of permanent disability to work as a driver and accordingly loss of earning capacity is 100%.
We fully agree with the view taken by the Learned single Judge in Golakha Chandra Bej's case because in the present case the claimant-Appellant was working as a Khalasi and was required to do various types of manual work like loading and unloading of goods and such types of work cannot be handled by a person whose hand has been amputed.
11. A conjoint reading of the aforesaid decisions of the Madhya Pradesh and Karnatak High Courts in the context of the facts narrated in this case and the decision of the Supreme Court in Pratap Narain Singh Deo's case (supra) as the owner and the insurer before the Commissioner had not adduced any evidence to the effect that the workman has been employed by the employer in an alternative employment, the irresistible conclusion is that the workman is not debarred from claiming more compensation than that specified in the Schedule for the loss of earning capacity. This is the view taken by the Supreme Court in Pratap Narain Singh Deo's case, which still holds good, as well as by the Karnataka High Court in Balwant Singh's case (supra). Thus, we respectfully agree with the view of the Learned single Judge expressed in Golakha Chandra Bej's case (supra).
The reference is answered accordingly. Let the appeal be now placed before the Learned single Judge for disposal.
A.K. Ganguly, C.J.
I agree.
P.K. Tripathy, J.
I agree.