Patel, J.:— This is an appeal by a workman under the Workmen's Compensation Act. He was working as a carpenter with the respondent. While removing the centering etc. of a chajja it collapsed and fell on him and he was seriously injured. He was in hospital for seven months. The doctor gave a certificate that the disability was 65 per cent. The appellant claimed compensation under the Workmen's Compensation Act, 1923. He claimed a sum of Rs. 3,185 relying on this certificate. The respondent denied theft the injury was caused by reason of the employment and alleged that he acted contrary to instructions. He also attributed his own negligence in the doing of the work and pleaded that he had paid in the aggregate a sum of Rs. 2,850 to the appellant.
2. The learned Commissioner held that the accident arose out of and in the course of employment, that the respondent was liable and he had not proved that the amount of Rs. 2,850 was paid by him to the appellant. He held that the appellant fell within the wage group of Rs. 80-100 and on the basis of 65 per cent, permanent partial disablement awarded Rs. 2,730 and Rs. 25 as costs. Mr. Kamerkar has contended (1) that the learned Commissioner was in error in holding that the disability was 65 per cent, aud awarding only an amount of Rs. 2,730 and (2) that penalty for delaying the payment should have been imposed.
3. In his application the appellant had claimed Rs, 3,185 on the basis that he was earning daily Rs. 3.50 and that would work out at 65 per cent, permanent partial disability. Mr. Kamerkar has made an application for amendment of the claim by substituting the amount of Rs. 4,900 on the basis of total disability for the amount of Rs. 3,185. He contends that the appellant committed a mistake in computing the claim relying on the medical certificate and in the interest of justice he should be allowed to amend the claim. His adviser Cassier has filed his affidavit. He says that he had claimed Rs. 4,000 but the Registrar asked him to reduce the claim to Rs. 3,185 which he did. In this he is supported by the application where the figure of “Rs. 4000” has been scored out and substituted by the figure “Rs. 3185”. In the correspondence the appellant had claimed Rs. 7,000.
4. Mr. Israni has opposed the application on the ground of delay and limitation. Generally amendment application should be granted unless it changes the cause of action or the application is not bona fide. It ought not to be rejected only on the ground of delay. In the present case new cause of action is not sought to be added. There can be no question of the bar of limitation. As the appellant was misled by the medical certificate I would allow the amendment.
5. The next question is one of construction of the relevant provisions of the Act. Section 4 provides for payment of compensation in cases of death, permanent total disablement and permanent partial disablement. Section 2(g) and (l) define “partial disablement” and “total disablement”. The definitions so far as relevant are:
“(g) ‘partial disablement’ means,…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 Schedule I shall be deemed to result in partial disablement.”
“(l) ‘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 time of the accident resulting in such disablement: provided that permanent total disablement shall be deemed to result from permanent total loss of sight of both eyes or from any combination of injuries specified in Schedule I. when the aggregate percentage of the loss of earning capacity, as specified in that Schedule against those injuries, amount to one hundred per cent.”
6. Reading the definitions together would show that in the case of scheduled injuries disablement is parital or total according as the total percentage of all of them together is less than or equal to 100 per cent. Difficulty arises only in the case of non-scheduled injuries. Both total and partial disablement has reference to earning capacity. In the definition of “partial disablement” there is direct reference to the earning capacity of the workman while in the case of “total disablement” it is referred to in the case of scheduled injuries. Moreover, the underlying purpose of the Act is to make some provision for a workman who is disabled from earning by work. Merely being physically capable cannot enable him to earn which he can do only if there are persons who would employ him. If there is such incapacity that he cannot get employment for any work he can undertake it would be total permanent disability. The words “incapacitates a workman for all work” therefore cannot mean any and every work which he may do but means such work as is reasonably capable of being sold in the market. In other words they do not mean “incapacitate to work”. The words do not have reference to physical incapacity.
7. Mr. Israni lays emphasis on the word “all” before the word “work” and contends that in order that a workman should be totally disabled he must be incapable of doing any work. Looking to the purpose which the Act was intended to serve and the context in which the words are used, I am not prepared to accept the contention.
8. In Ball v. William Hunt & Sons, Ltd. . [1912] A.C 496., a workman was blind of one eye. But the defect was not visible and he was to all outward appearances a two eyed man. He sustained an employment injury as a result of which the defective eye had to be removed with the consequence that he could not get employment though physically he was as well as before. The House of Lords held that “incapacity for work” included inability to get work or in other words “There is incapacity for work when a man has a physical defect which makes his work unsaleable in any market reasonably accessible to him.”
9. In E.I Ry. v. Maurice Cecil Ryan . [1937] A.I.R Cal. 526., under this section it was held that loss of earning capacity has to be estimated and not loss of physical capacity. A workman employed by the Railway Company was injured. Surgeon certified his incapacity at 50 per cent, and declared him fit for sedentary work i.e lowest grade in the employment. He was engaged as a clerk but after trial he was declared unfit for that work also. It was held to be total disablement under the Act. The same principle was applied in Rukiyabai v. George D'Cruz . [1961] A.I.R Ker. 108.
10. In General Manager, G.I.P Ry. v. Shankar . [1950] A.I.R Nag. 201. the workman claimed compensation as for total disablement. The learned Judge said (p. 202):
“…But this inability did not imply his inability to do other work. Disablement must be of such a character that the person concerned is unable to do any work.”
11. Mr. Israni has naturally very strongly relied on this passage. The observations must be read in the context of the facts of the case. The workman though incapable of working as a fireman as before was yet capable of working as a bearer which employment was offered to him but he refused. Under the circumstances the learned Judge held that he was entitled to compensation on the basis of partial disablement only. It is difficult to hold that the learned Judge when he made the observations above intended to refer to physical incapacity.
12. In the present case the issue as to the nature of the disability was not framed and the case proceeded only on the basis of the medical certificate, a procedure which was strongly disapproved, with respect, rightly in Kali Das v. S.K Mondal . [1957] A.I.R Cal. 660.. The certificate of a medical expert can only say what the injury is, its effect temporary or total on the limb and to an extent the physical incapacity of the man. It is, however, for the Court to find having regard to the evidence before it whether the workman has suffered partial or total disablement. The Court must take into account the nature of the injury, the nature of the work which the workman was capable of undertaking and its availability to him. In this connection the employer's willingness to employ him in any other alternative employment may have relevance. In my view, the learned Commissioner adopted a wrong procedure in dealing with the case.
13. Medical certificate appears to be incomplete and does not show which of the particular limbs are affected and to what extent. I understand that the appellant had to be brought to Court supported and on crutches. Prima facie the disablement is much more serious than certified and I think proper inquiry is necessary.
14. I remit the following issue:
“Whether the appellant has suffered permanent, total or partial disability and if partial what is the extent?”
15. The parties will be allowed to lead such evidence as they desire and the Commissioner will certify the finding within two months from the writ reaching him. The question of penalty has been fully argued before me but I will deal with the question when I finally decide the matter.
16. Order accordingly.