Dayanand Sitaram Dabade vs Vishwanath Ramappa Bhure & Anr.

This appeal is preferred by an employee / claimant in order to seek enhancement of amount of compensation awarded by the learned Compensation Commissioner for Workmen’s Compensation Act and Judge, Labour Court, Latur in Workmen’s Compensation Application No. 35 of 2001.

The learned Compensation Commissioner has awarded compensation of Rs.77,500/- alongwith simple interest @9% p.a. from the date of accident.

The learned Compensation Commissioner has treated the loss of earning capacity of the Applicant to the extent of 25% in computing compensation.

The appellant was working with Respondent No.1 as Hamal/Coolie on goods vehicle bearing registration no. MH-24-A-2485 for loading and unloading of goods. According to him, he was earning daily wages of Rs.100/-. The appellant met with an accident during the course of his employment on 04^th March, 2001. He has suffered injury to his right leg. The appellant preferred aforesaid application seeking compensation on account of loss of earning to the extent of Rs.3,90,438/-. The vehicle of the employer / Respondent No.1 was insured with Respondent No.2 – Insurance Company. Respondent No.2 filed written statement opposing the claim of the appellant.

The appellant has examined a doctor viz. V.R. Jadhav, M.S., (Ortho.), who was serving at Civil Hospital, Latur as his witness. The said doctor has issued a certificate dated 11^th April, 2002 stating that the Appellant had suffered 18% disability. According to him, due to fracture injury, right leg of the Appellant was deformed. It is also stated that length of the leg was shortened by 3 cms. between the ankle and knee. During the examination-in-chief, the doctor stated that this resulted in 100% loss of earning capacity of the appellant. He admitted during his cross-examination that MLC number is not mentioned in the injury certificate and he has not conducted any exercise like weight lifting or for movements of joints before issuing certificate. The doctor also admitted the fact that shortening of leg by 3 cms. is not mentioned in the certificate. As against 18% disability mentioned in the certificate, during the course of evidence the doctor stated the injury suffered was around 15%. The respondent – insurance company has not led any evidence. The learned Compensation Commissioner, on appreciation of evidence, has held that the disability resulted to 25% loss of earning capacity and had determined the compensation accordingly.

The contention of learned counsel for the Appellant / employee is that since the injury is a non-schedule injury, due regard is required to be given to the opinion of doctor in view of Section 4(1)(c)(ii) of the Employee’s Compensation Act. Learned counsel contends that the learned Compensation Commissioner has erred in not giving due regard to the opinion of doctor while arriving at conclusion regarding loss of earning capacity. He further contends that in absence of any contrary evidence, the evidence of doctor ought to have been accepted by the learned Compensation Commissioner. Learned counsel further argued that having regard to nature of work, the case of Appellant that injury resulted in 100% loss of his earning capacity, should have been accepted.

Per contra, Mr. Deshpande, learned counsel for the Respondent No.2 – Insurance Company argued that the evidence of doctor is required to be appreciated in the light of Section 4(1)(c)(ii) of the Employee’s Compensation Act. He contends that everything that is deposed by the doctor cannot be accepted as gospel truth. He draws attention to the cross-examination of the doctor and contends that the doctor has issued certificate merely for the asking. Learned counsel argues that although there is specific column for mentioning the MLC number, same is not mentioned on the certificate. It is further contended that as against 18% disability mentioned in the certificate in the examination-in-chief, the doctor, in his evidence, has stated the disability to be 15%. Learned counsel further contends that the learned Compensation Commissioner has appreciated the evidence on record properly and that judgment and order passed by the learned Compensation Commissioner does not warrant any interference.

Upon hearing the parties, following substantial questions of law arise for consideration in the present case :-

As stated above, the injury in the present case is a non-schedule injury. The evidence and opinion of the doctor are, therefore, relevant and of utmost importance in determining the loss of earning capacity and consequently the amount of compensation to be awarded. Dr. Jadhav was examined by the Appellant as his witness. He has stated in his evidence that the injury to the right leg has caused 100% loss of earning capacity. He has specifically stated that the fracture was not properly joined and the right leg was deformed. It is also stated that the injury resulted in shortening the leg by 3 cms. It is not in dispute that the Appellant was doing work of loading and unloading of goods. Although, in view of Section 4(1)(c)(ii) of the Employee’s Compensation Act the evidence of doctor is a relevant consideration for determining the loss of earning capacity, the evidence cannot be accepted mechanically. It is for the Compensation Commissioner to evaluate and appreciate the same. In the present case, Dr. Jadhav has not conducted any test for determining loss of power in the right leg due to injury. However, there are definite observations that fracture joint is not proportionally united and that the leg is deformed. Apart from this, there is specific observation with respect to shortening of leg. The appellant has also stated about shortening of his right leg during the course of his examination-in-chief. The appellant has likewise stated that his right leg is bent due to fracture injury suffered by him.

Having regard to the nature of injury coupled with the evidence regarding fracture not properly aligned resulting in bend in the right leg, resulting shortening the right leg, it must be held that the injury has certainly reduced earning capacity of the Appellant. The learned Compensation Commissioner has determined the loss of earning capacity at 25%. Having regard to the fact that the Appellant was working as ‘Hamal/Coolie’ for loading and unloading of goods on a goods vehicle and the evidence on record which clearly indicates shortening of leg and alignment of the leg not being proper after the fracture, the learned Compensation Commissioner ought to have accepted the evidence of the doctor regarding loss of earning capacity.

The finding by learned Compensation Commissioner that shortening of leg is not mentioned in the disability certificate is contrary to the record. Likewise, the learned Compensation Commissioner has also not dealt with the evidence which establishes that after the fracture injury, alignment of bone is not proper and there is bend in the right leg. It needs to held that the findings arrived at by the learned Compensation Commissioner are without proper appreciation of evidence. The most vital aspect regarding loss of earning capacity i.e. bend in the right leg and improper alignment of the bone is not dealt with. Likewise, the findings regarding shortening of leg is contrary to the evidence on record.

In view of aforesaid reasons, it is not possible to agree with the view taken by the learned Compensation Commissioner. Having regard to the nature of work of the Appellant and the nature of injury suffered, it will be necessary to accept the opinion of the doctor that the injury has resulted into 100% loss of earning capacity of the Appellant, particularly when the insurance company has not led any contrary evidence.

As regards the second substantial question of law, Section 4A(3) (a) of the Employee’s Compensation Act clearly provides for payment of interest @ 12% p.a. or at such higher, rate not exceeding the maximum of the lending rates of any scheduled bank. In that view of the matter, the learned Compensation Commissioner ought to have awarded interest @ 12% p.a. instead of 9% p.a.

The substantial questions of law are answered accordingly. In view of the same, First Appeal is allowed with following terms :-

The compensation of Rs.77,500/- awarded by the learned Compensation Commissioner in Workmen’s Compensation Application No. 35 of 2001 is enhanced to Rs.3,10,000/- by granting enhancement of Rs.2,32,500/- which both the respondents are jointly and severely liable to pay with simple interest @ 12% p.a. from the date of accident i.e. 04^th March, 2001 till its realisation.