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Judgment
P.K. Mohanty, J.—In these two appeals, the Insurer-companies challenge the awards of the Workmen''s Compensation Commissioner under the Workmen''s Compensation Act. The common question of law being involved in both the appeals, on the prayer made and agreement of the learned counsel for the parties, they are taken up together for hearing and disposed of by this common judgment.
In Misc. Appeal No. 849 of 1999, the Branch Manager, Oriental Insurance Company Ltd., Sambalpur challenges the order of the Commissioner for Workmen''s Compensation-cum-Assistant Labour Commissioner, Sambalpur in W. C. Case No. 39 of 1998 in an application u/s 22 of the Workmen''s Compensation Act and a sum of Rs. 1,88,705/- as compensation to be paid within 15 days, failing which the amount was to carry 12% interest thereon per annum.
The main challenge to the award is on the ground that the Commissioner for Workmen''s Compensation (hereinafter called as "the Commissioner") could not have recorded a finding that the disability of the claimant was 100%, particularly when the Doctor (P.W. 2) has not given any opinion regarding the percentage of disability, inasmuch as the loss of earning capacity of the claimant fixed at 90% by the Commissioner are not sustainable in law, since the injuries sustained are non-schedule and as per Section 4(1)(c)(ii), of the W.C. Act, a Medical Practitioner has to assess the loss of earning capacity of the injured-claimant. The finding of the Commissioner as to the wages and status as a workman is also called in question.
In Misc. Appeal No. 829 of 2001, the Divisional Manager, New India Assurance Company Ltd. has assailed the order of the W.C. Commissioner-cum-Deputy Labour Commissioner in W.C. Case No. 95/D of 1997 awarding a sum of Rs. 2,58,336/- as compensation for loss of earning capacity of the claimant due to the injuries sustained in course of his employment involved in an accident. The main ground of attack is that the determination of the loss of earning capacity at 100% made by the Commissioner in face of the opinion of the Doctor that the disability is 80%, is erroneous in law, inasmuch as, this being the award on the scheduled injuries, the Commissioner could not have awarded more than what has been prescribed under the Statute.
In view of the pleadings of the parties, the main question that needs determination is, as to whether a Workman who sustains injuries and is incapacitated due to such injuries, would be governed by the calculation stipulated u/s 2(1)(c) of the W.C. Act, as indicated in the Schedule (1) or may be awarded more than what has been fixed in the schedule,
The contention of the learned counsel for the appellant-insurer is that in view of the provision of Section 2(1)(c) of the W.C. Act, the compensation shall be, as provided for by the Act as per the schedule thereto. Section 4 provides for the amount of compensation in different situations. Injuries as specified in Schedule (1) to the Act as schedule injuries and the injuries which are not specified are to be treated differently. In both the types of cases, extent of determination of compensation is based on loss of earning capacity as assessed by a qualified Medical Practitioner. So far as the injuries that falls under the scope of Section 4(1)(c)(l) are concerned, the workman is not required to prove the loss of earning capacity since it has already been fixed in the schedule. But in case of non-schedule injuries, a claimant is to prove the loss of earning capacity by producing cogent evidence including that of a registered Medical Practitioner.
However, according to Sri A. K. Choudhury, learned counsel for-the claimants, if a workman suffers and sustains loss of earning capacity more than the percentage prescribed in the schedule and he proves such loss, he is entitled to be awarded such compensation, irrespective of what has been prescribed for schedule injuries. What has been prescribed is the minimum and the workman is not debarred from claiming the compensation more than what is specified in the schedule. So far as the cases where the injuries are not specified in the schedule, Sub-section (ii) was inserted by amending Act 22 of 1984, which contemplates that in case of injuries not specified in the schedule, such percentage of compensation payable in case of permanent total disablement as a proportionate to the loss of earning capacity i.e. as assessed by the qualified Medical Practitioner shall be admissible. The determination of the loss of earning capacity is to find out whether the injured is capable of doing the work, which he was doing before the accident occurred, the nature of the injuries, the physical condition of the injured as revealed from the evidence would prove such a case. The learned counsel referring to the note in Schedule (i) of the Act submits that in view of such note read with Section 2(1), 4(1)(c)(ii), 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, Schedule-1. Whether a particular limb or member has become fit for use is required to be examined with reference to the nature of job or employment or work in which he was engaged on the date of accident. According to the learned counsel, the workman is a driver and has sustained fracture of the femur bone of both sides along with other multiple injuries and for those injuries he had undergone three operations besides ring casting. The Medical Board on clinical examination found that the injured workman had sustained 80% disability and unfit to work as a Driver. However, the contention of the learned counsel for the appellant-insurer is that in absence of proof that the injured workman was incapable for doing any work, the finding that the injured sustained 100% loss of earning capacity since he is not able to work which he was earlier doing, is not acceptable in law.
In W.C. Case No. 95-D of 1997, in respect of claimant Sri Sricharan Santi, the Tribunal considered the evidence of Dr. Sudhir Kumar Mohapatra, Orthopaedic Surgeon, Member, Medical Board, Cuttack as P.W. 2, medical papers like admission and discharge certificate of Pandit Jawaharlal Nehru Medical College, D. K. Hospital, Raipur, Out patient ticket of National Institute of Rehabilitation Training and Research, Olatpur, Cuttack and discharge certificate of S.C.B. Medical College, Cuttack, treatment papers of P. Tejeswar Rao, Retired Professor of Orthopaedics, Admission and Discharge Certificates of S.C.B. Medical College dated 10.2.1997 and 13.2.1998 and Disability Certificate issued by the Medical Board (C.D.M.O.), Cuttack and found that the claimant had to be treated in many Hospitals from Raipur to Cuttack between 1995 and 1999 and was not fully cured. The Orthopaedic Specialist (P.W. 2) states that the disability of the claimant was 80%, but his loss of earning capacity is 100% being driver by profession. The Tribunal on such consideration held that the applicant is totally disabled and the loss of his earning capacity is to the extent of 100% since he is incapacitated to do the work as a Driver which he was doing at the time of accident. Total disablement has been defined u/s 2(1)(i) of the Act 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-insurer, the words "all work" as applied in the definition would mean all possible work and not the work or avocation the claimant was doing at the time when the accident took place. However, according to the learned counsel for the Respondent-claimant, the stipulation that the workman is incapacitated for ail work, would mean the work that he was discharging at the time when the accident took place and not all possible work that a human being undertakes.
Partial disablement has been defined u/s 2(1)(g) of the Act to mean where disablement is of a temporary nature, such disablement as reduces the earning capacity of a workman in any employment 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 Scheme-I shall be deemed to result in permanent partial disablement. In such view of the matter, the stipulation in the definition of total disablement that the disablement has incapacitate a workman for all work which he was capable of performing at the time of accident resulting in such disablement cannot be confined to the work that the workman was doing at the time of accident. Thus, the words "all work" which he was capable of performing as used by the legislature obviously would not mean and cannot be construed to mean and confined to the work or avocation that the claimant was doing at the time of accident. The contention of Sri Choudhury, learned counsel for the appellant thus has to be accepted.
In such view of the matter, the contention of resulting from the injury and in case of injury specified in Para-II of Schedule-I, such percentage of the compensation the learned counsel for the claimant-Respondent that the disablement has to be considered as total permanent disablement and the claimant would be entitled to compensation on such basis in terms of Section 4(1)(c) of the Act has sufficient force. Section 4(1)(c) of the Act speaks of permanent partial disablement which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury and 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 a proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury has to be inferred. The learned Tribunal appears to have assessed the loss of total disablement on the ground that because of the fracture of the fumer since the claimant was incapable of performing the duties of a driver, the workman is entitled to and can be assessed as 100% loss of earning capacity, is of substance. If a person becomes incapacitated because of the injuries to perform the work of a driver or any other avocation he has to be held entitled to and his loss of earning capacity has to be held as 100% in the facts and circumstances of the cases at hand. The learned Workmen''s Compensation Commissioner has rightly assessed and determined the compensation in the facts and circumstances of the case and calls for no interference.
In the result both the appeals are dismissed, but in the facts of the case there shall be no order as to cost. The amount of compensation as determined in terms of the awards be paid forthwith.