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Judgment
G.C. Mital, J.—Chajju Ram was working with the Shahabad Farmers Cooperative Marketing-cum-Processing Society, Shahabad (for short ''the Society''). On 15.1.1975 when he was getting the bags loaded, some bags from the heap fell on his left leg as a result of which the same was badly crushed. On 10.10.1977 he filed an application u/s 10 of the Workmen''s Compensation Act, 1923 (for short ''the Act''), before the Commissioner under the Act, for award of Rs. 16,000/- for permanent disability caused in his left leg. The application was contested on the point of limitation and whether accident arose out of and during the course of employment. It was nowhere pleaded in the written statement that the claimant was not a workman nor this point was raised during trial of the application. But at the time of arguments in appeal, this point was sought to be raised but was not allowed to be raised for want of pleadings.
The Commissioner came to the conclusion that for the severe injury caused to his leg he remained under treatment till December, 1975 and therefore his application filed in October, 1977 was within limitation. Although different wording has been used by the Commissioner but one can make out this is what he meant.
On the quantum of compensation he took notice of the law as it stood at the time of the filing of the claim application and awarded Rs. 20,580/- , after coming to the conclusion that the fracture of the left leg has resulted in loss of limb as there was shortening of leg by 5 inches and there was loss of earning capacity to the extent of 70 per cent. This decision was rendered vide order dated 30th March, 1985. This is appeal by the employer.
Adverting to the point of limitation first, it is true that the application is beyond the period of two years of the accident. The law has given discretion to the court to extend the time in suitable cases. The claimant is present in court. He is quite old and has to use crutches to move about. He was really in pitiable condition even till after 13� years of the accident and one has to imagine what would be his condition soon after the accident. In his statement he has given out that till December, 1975 he was bedridden and if two years are calculated from that date the claim application would be within limitation. All the same the delay in filing the claim application deserves to be condoned on the peculiar facts of this case and I order accordingly.
Adverting to the injury, the claimant has really suffered severe injury on his left leg, which has made him almost crippled and dependent on crutches. The finding of the Commissioner about the loss of earning capacity was not seriously disputed by the counsel for the employer and therefore, is upheld. Moreover, it could not be disputed on the basis of the material on record.
In the claim application, only Rs. 16,000/- were claimed whereas the Commissioner has awarded Rs. 20,580/- . There was a change in the compensation Schedule attached to the Act, by Amendment Act, 1976 with retrospective effect from 1.10.1975. In this case the accident took place on 15.1.1975, that is, before the amendment came into force. Therefore, we have to look to the law, as it stood on the date of accident, as per decision of this Court in Oriental Fire and General Ins. Co. Ltd. Vs. Moola Singh and Others . As per the Schedule of compensation, as it stood on the date of accident, if there had been total loss of earning capacity, the claimant would have been allowed Rs. 14,000/- . In this case, the claimant is entitled to compensation under Schedule IV read with Schedule I part II, entry 18. Under this, the claimant is entitled to 70 per cent of the aforesaid amount as loss of earning capacity which comes to Rs. 9,800/- . I order accordingly.
While admitting the appeal, it was ordered that the amount deposited be put in FDR for a period of five years in the name of the Commissioner Workmen''s Compensation, Ambala, so that the benefit of interest may go to the successful party. Accordingly, it is ordered that the Commissioner will encash the FDR and will pay Rs. 9,800/- with proportionate interest, which would accrue on this amount, to Chajju Ram, the claimant. The claimant would also be entitled to costs of Rs. 1,000/- . The Commissioner will pay Rs. 9,800/- with proportionate interest as mentioned above and the amount of Rs. 1,000/- to the claimant first and then will return the balance amount to the Appellant Society.
The appeal stands disposed of accordingly.