The Officer-Commanding vs Mr. Sita Ram Banda, & Anr.

Heard Shri S. Rupachandra, the learned ASG appearing for the appellant and none is present for the respondents despite notices being served upon them.

This appeal is directed against the award dated 27-07-2001 passed by the learned Commissioner, Workmen''s Compensation, Manipur in Claim Case No. 38 of 2000.

The facts of the case, in brief, are that the respondent No.1 was, at the relevant time, working as C.P. Mazadoor being deployed at K.M.1.330 on Road Kharasam-Chakyang-Tusom. In an accident that took place on 25-04-1998 while he was doing the work of breaking stone into metal for surfacing works, the respondent No.1 sustained injury on his right eye, as a result he was admitted at the Regional Institute of Medical Sciences (RIMS), Imphal where after he having been examined by the Doctor, his right eye was removed and an artificial eye ball was implanted. On 04-07-2000 the appellant, by accepting the liability to pay compensation for the personal injury to the respondent No.1, deposited with the learned Commissioner a sum of Rs.78,430/- (Seventy-eight thousand four hundred thirty) only as compensation under Section 8 of the Workmen''s Compensation Act, 1923 (hereafter referred to as "the Act, 1923"). The respondent No.1 withdrew the said amount without prejudice to his right to make further claim under Sub-section (2) of Section 4-A of the Act, 1923. Accordingly, the respondent No.1 filed a petition being Claim Case No. 38 of 2000 praying for payment of compensation under Section 19 of the Act, 1923 and the rules made thereunder.

The learned Commissioner framed as many as four issues which are given as under:-

i) Whether applicant is permanent total disablement within the meaning of Section 2(1)(1) of the said Act or not?

ii) Whether the amount of compensation payable for the disablement of the applicant is Rs. 1,95,075.00 or not?

iii) Whether the amount of compensation deposited by the appellant is sufficient or not?

iv) Whether the appellant is liable to pay interest on the amount of compensation for his default in paying the same? If so, what is the amount of interest payable?

After having considered the aforesaid issues, the learned Commissioner answered and determined all the four issues in favour of the respondent No.1. The learned Commissioner came to the conclusion that the respondent No.1 had permanent total disablement as defined in section 2(1)(l) of the Act relying upon the decision rendered by the Hon''ble Supreme Court in the case of Pratap Narain Singh Deo -Vs.- Shri Niwas Sabata, reported in AIR 1976 SC 122 and accordingly, the learned Commissioner awarded compensation for an amount of Rs. 1,96,074/- (One lakh ninety six thousand & seventy-four) only payable under section 4(1)(b) of the said Act. Accordingly, the appellant was directed to deposit with the Hon''ble Commissioner on or before 16-08-2001 the balance amount of compensation amounting to Rs. 1,17,644/- (Rupees one lakh seventeen thousand six hundred and forty four) only with its simple interest @ of 12 percent for the period from 25-04-1998 to the date of depositing the said amount.

Being aggrieved by the said award of the learned Commissioner, the appellant has preferred the instant appeal on the inter-alia grounds that the learned Commissioner has failed to appreciate the Medical Certificate showing the percentage of the disability of the appellant as 40%; that the injury sustained by the respondent No.1 is categorized as permanent partial disablement as per Item No. 25 of Para II to Schedule I of the Act, 1923 and not permanent total disablement as referred to in Part I to Schedule I of the Act; that after various procedural requirements and verification of claim being done by the authority, the compensation amount of Rs. 78,430/- (Rupees seventy eight thousand four hundred and thirty) only was released to the respondent No.1; that the learned Commissioner has given erroneous finding to the effect that the employment of the respondent No.1 was terminated because of the injury sustained by him, although this plea was not taken by the respondent No.1 and that the learned Commissioner misinterpreted Section 4- A(3) of the Act while awarding the interest.

It is not in dispute that the respondent No.1 sustained injury, as a result of which his right eye was removed and an artificial eye ball was implanted in its place. The question that arises for consideration by this court is as to whether the learned Commissioner is justified in holding that the injury sustained by the respondent No.1 resulted in permanent total disablement or not. In other words, the short issue is as to whether the injury sustained by the respondent No.1 resulted in permanent total disablement referred to in item 4 of part-I of Schedule-I or permanent partial disablement of the nature referred to in item No. 25 of part-II of Schedule-I. The injuries caused to an employee may result either in partial or total disablement and both may be either temporary or permanent. The expression "partial disablement" as defined in Section 2(g) means, where the disablement is of a temporary nature, such disablement as reduces the earning capacity of an employee in any employment in 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. Similarly, the expression "total disablement" is defined in Section 2 (l) of the Act, 1923 as such disablement, whether of a temporary or permanent nature, as incapacitates an employee for all work which he was capable of performing at the time of the accident resulting in such disablement. In his book called the Commentary on the Employees'' Compensation Act, 1923, Shri R. N. Choudhry has summarised as regards these two definitions as under:

"From the very definition of the term "partial disablement" and "total disablement", a fundamental difference between the two is apparent which the former concerns itself with loss of earning capacity consequently upon an accident resulting in injuries to a workman, the later relates to workman''s incapacitation for all work that he was capable of. The former affects the wages while the later affects his very capability to get the work".

The main ground on which the award has been challenged by the appellant, is that as per the medical certificate, the percentage of disability is 40% and the learned Commissioner has failed to appreciate it. What is relevant is not the percentage of disability but is to see whether the injury sustained by respondent No.1 has incapacitated him from doing all work that he was capable of. On perusal of the medical certificate filed along with the memo of appeal as Annexure-X/1, it is nowhere stated that the respondent No.1 could continue to do all work that he was capable of prior to the accident except certifying that the percentage of disability was 40%. The reason given by the learned Commissioner in his award is that the loss of eye sight has rendered him unable to perform works for which eye-sight is essential in his employment. He has also observed that the employment of the respondent No.1 was terminated by the appellant on the ground that the respondent No.1 was unfit for all work for which he was capable of. This observation has been refuted by the appellant in its memo of appeal stating that the respondent No.1 was not terminated/ removed by the appellant as a result of the said injury and that he continued for more than two years with intermittent absence. Be that as it may, it appears that the respondent No.1 is no longer in the employment of the appellant, may be, for the reason that he has left/ resigned or has been removed from his employment by the appellant. But the fact remains that either his leaving/ resignation or his removal is due to the injury sustained by him, otherwise there is no reason as to why he will leave his employment after he having come over here from a far distance for employment. Moreover, if one looks at the nature of the work that the respondent No.1 was doing at the time of accident namely breaking stone into metal, the reason given by the learned Commissioner that eye-sight is essential, appears to be quite reasonable. The expression "for all work he was capable of" is very significant. After the injury he sustained, the respondent No.1 could not have been in a capacity to do all work that he was capable of. It is no doubt true that he could have been doing some work but not to the satisfaction of the appellant as per standard of employment required by it. Having heard the learned counsel appearing for the appellant, this court is of the view that there is no merit in the appeal which is, accordingly, liable to be dismissed.

For the reasons stated hereinabove, the instant Misc. First Appeal preferred by the appellant against the award dated 27-07-2001 passed by the learned Commissioner, Workmen''s Compensation, Manipur in Claim Case No.38 of 2000 fails and is accordingly dismissed with no order as to costs.