Joginder SaIn and Bros. Vs. Shri Man Mohan Singh and ors. - Court Judgment

Excerpt:
workmen's compensation act, 1923 - sections 10 and 30--loss of earning capacity--hand of the respondent-workman had been crushed and one of his fingers was amputated--because of the crushing of hand and the amputation of finger, the workman cannot perform the work with his right hand, which as per schedule amounts to 50% of the loss of earning capacity--commissioner having assessed the loss of earning capacity at 40% on the basis of the injuries sustained by the respondent-workman and having arrived at the amount of compensation--no illegality or infirmity can be found with the same--percentage of loss of earning capacity on the basis of the injuries sustained by the respondent-workman, is not a question of law much less substantial question of law, appeal not maintainable. - - 3. the case set up by the respondent in the application was that while he was employed with the appellant, he sustained injuries, namely, small finger of the right hand was amputated and the hand had been badly crushed resulting in 60% disability of permanent nature.s.k. mahajan, j. 1. admit.2. this appeal is directed against the order of the commissioner, workmen's compensation passed on the application of the respondent-workman under section 10 of the workmen's compensation act claiming compensation for the injuries suffered by him during the course of his employment with the appellant. 3. the case set up by the respondent in the application was that while he was employed with the appellant, he sustained injuries, namely, small finger of the right hand was amputated and the hand had been badly crushed resulting in 60% disability of permanent nature. the respondent had filed a disability certificate issued by the medical superintendent, safdarjung hospital, new delhi and he was certified to be physical handicapped person having 65% disability in relation to upper right limb. the certificate was issued after the respondent-workman was examined by a board of three doctors of the said hospital. the appellant denied the injuries sustained by the respondent and also the disability suffered by him, however, the tribunal by the impugned order held that though the certificate showing disability on account of crush injury of the right hand show that the respondent had suffered disability to the extent of 65%, however, after considering the case of the petitioner, the commissioner was of the opinion that the disability should be 40% because of the crush injury on the right hand, wrist and amputation of finger and considering the disability at 40% the tribunal awarded compensation in favor of the respondent which order has now been challenged by the appellant.4. the contention of learned counsel for the appellant is that the tribunal has not given any finding about the loss of earning capacity of the respondent and relying upon the judgment of the kerala high court in kerala soaps and oils ltd. v. v.t. valsan and another 1998 (7) slr 197, it is contended that the workman ought to have produced not only the disability certificate but also the loss of earning capacity certificate without which the commissioner cannot award compensation in favor of the workman. 5. i have given my thoughtful consideration to the arguments advanced by learned counsel for the appellant but i have not been able to make myself agreeable with him. there is a basic fallacy of providing two certificates, namely, the loss of earning capacity certificate and the disability certificate. schedule to the workmen's compensation act provides that as to what would be the loss of earning capacity because of a particular type of injury sustained by the workman. according to the schedule to the workmen's compensation act, in case of loss of thumb, the percentage of loss of earning capacity is 50%, in case of four fingers of one hand, the percentage of loss of earning capacity is 50%. in the present case, the hand of the respondent-workman had been crushed and one of his finger was amputated. the disability certificate given by the hospital shows that workman had suffered 65% disability. because of the crushing of hand and the amputation of finger, the respondent-workman cannot perform the work with his right hand, which as per schedule amounts to 50% of the loss of earning capacity. since the schedule to the workmen's compensation act provides for the loss of earning capacity based upon the injuries suffered by the respondent there is no need of producing any other certificate by the workman and it is for the commissioner to adjudicate as to what would be the loss of earning capacity on the basis of the injuries sustained by the respondent-workman. with due respect to the hon'ble judges of the kerala high court, i am unable to agree with the reasoning given in the aforesaid judgment. the commissioner having assessed the loss of earning capacity at 40% on the basis of the injuries sustained by the respondent-workman and having arrived at the amount of compensation, in my opinion, no illegality or infirmity can be found with the same. in any case under section 30 of the workmen's compensation act an appeal against the orders of the commissioner, workmen's compensation lies only on a substantial question of law. the question as to what is the percentage of loss of earning capacity on the basis of the injuries sustained by the respondent-workman, in my opinion, is not a question of law much less substantial question of law. this appeal, thereforee, is even otherwise not maintainable. 6. for the foregoing reasons, i do not find any merits in this appeal and the same is, accordingly, dismissed.