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Judgment
V. Bakthavatsalu, J.—The respondent/opposite party in the Workmen''s Compensation Case is the appellant herein. The respondent herein
filed O.P. claiming compensation.
The case of the petitioner is as follows:
On April 6, 1986 while the petitioner was working as a conductor in the bus Route No. 303 plying between Madras and Hosur, at about 10.30
p.m. at Krishnagiri a tractor was approaching the bus from the opposite side and the driver of the bus in order to avoid a collision steered the bus
to the side of the road and in the above process, the rear portion of the bus came into contact with a stationary lorry and the petitioner sustained
injuries. The petitioner took treatment in C.M.C. Hospital, Vellore and later he reported for duty on August 21, 1987 and he was posted to work
as time keeper for one month at Madras and thereafter, he was posted to work as time keeper in Broadway bus stand, Madras and ultimately, he
was retrenched from service on and from September 30, 1991. The petitioner made several representations to the Management to pay
compensation. The respondent has not paid compensation. Hence, this application is filed for compensation of Rs. 81,535/-.
The case of the respondent is as follows:
The application is barred by limitation. The petitioner has to prove the age and income as alleged in the petition. The compensation claimed is
excessive. As the accident occurred 8 years ago, the respondent is not able to trace back the records.
On consideration of the materials, the Commissioner has held that the petitioner sustained injuries out of and in the course of employment and
accordingly, the Commissioner has determined the compensation at Rs. 81,535/-. Aggrieved by the said award, the Management i.e., Transport
Corporation has filed this appeal.
It is contended by the appellant that the petition is barred by limitation and that the Commissioner erred in awarding cent percent compensation
for the disability of 60% and that the petitioner was not permanently disabled from seeking any employment.
On the other hand, learned counsel for the respondent contended that the delay in filing the petition was already condoned and that the petitioner
was retrenched from the services and that as he has lost one of his hands, he could not seek any employment and that therefore, the Commissioner
has not committed any error.
The following substantial questions of law are raised by the appellant in this appeal:
Whether the injured Nathaian is entitled to compensation u/s 3(1)(b)(ii) of the Workmen''s Compensation Act?
Whether the injured is entitled to cent percent compensation ?
It is seen from the file that the petitioner filed I.A. No. 43 of 1993 to condone the delay in filing the application. The above application was
enquired by the Deputy Commissioner, Salem. It is seen from the order available in the file that the delay in filing the original case was condoned
by the Commissioner on October 26, 1993. As the delay in filing the main case is condoned, the contention of the appellant that the original case is
barred by limitation has got to be rejected.
It is not in dispute that the petitioner sustained injuries while he was under the employment of the respondent. There is no dispute that, the
petitioner is the workman employed under the respondent. Therefore, the finding of the Commissioner that the petitioner sustained injuries in the
course of employment under the respondent has to be accepted.
Learned counsel for the appellant inter alia contended that the disability sustained by the petitioner is about 60 % only and as such, it is not
open to the Commissioner to award compensation for cent percent. In Ex. A-2, the order passed by the Management, it is stated that the
petitioner is not fit for service due to post traumatic crash injury to left hand and fore arm and that the finger functions are useless. It is seen that
though the petitioner was given the job of time keeper, subsequent to the date of the accident he was invalidated by an order dated September 21,
1991 i.e. Ex. A-2. Thus, the management itself is of the opinion that the petitioner cannot perform the duties of the conductor and the alternative
job of time keeper was also not continued after sometime. The opinion of the doctor that the petitioner sustained disability to the extent of 60%
alone will not preclude the Commissioner from holding that the petitioner sustained total disablement. Learned counsel for the respondent relies
upon a decision reported in National Insurance Co. Ltd. Vs. Susanta Das and Another, (Cal-DB). It had been held in the above decision that loss
of one hand does not mean that loss of earning capacity should be restricted to 50%. At this juncture, it would be useful to refer to the definition
given in the Workmen''s Compensation Act. Section 2(1) of the Act defines disablement thus:
total disablement"" means such disablement, whether of a temporary or permanent nature, as incapacitates a workman for all work which he was
capable of performing at the same time of the accident resulting in such disablement (provided that permanent total disablement shall be deemed to
result from every injury specified in Part I of Schedule I or from any combination of injuries specified in Part II thereof where the aggregate
percentage of the loss of earning capacity, as specified in '' the said Part II against those injuries, amounts to be hundred percent or more)"".
In this case, the petitioner was invalidated from the services, even after offering an alternative job of time keeper. Therefore, it has to be held that
the petitioner is incapacitated from performing any duty or work. Therefore, the incapacity and disability sustained by the petitioner will fall under
the definition ""total disablement"". In view of the above fact, the Commissioner has held that Ex. A-2 is sufficient to hold that the petitioner could not
work as the Conductor after the accident. For the above reasons, I hold that the Commissioner has not committed any infirmity in awarding
compensation at cent percent under the head ""total disablement"". I hold that the finding of the Commissioner in awarding compensation is not
vitiated by any infirmity. I hold that there are no merits in the appeal.
In the result, the Civil Miscellaneous Appeal is dismissed. No costs. The Order passed by the Commissioner is confirmed.