Somnath Iyer, J.:— On March 7, 1961 Usman Khan who is the respondent before us sustained injuries when he was driving a truck belonging to the Canara Public Conveyance Company Limited which had employed him. It is undisputed that on account of a mechanical defect in the truck, one of its springs broke and caused the accident in which Usman Khan was involved. He was treated for his injuries in the Government Hospital at Chickmagalur between March 7, 1961 and March 11, 1961 when he was discharged. Thereafter he went to a medical practitioner in Puttur in the District of S. Kanara and was under his treatment until May 11, 1961. But eventually notwithstanding all this treatment to which he was subjected, he lost completely the use of his right hand. It is in evidence that in consequence of the accident the third rib and the collar bone were both fractured and that the bones which so broke never united.
2. As required by Section 10(1) of the Workmen's Compensation Act, Usman Khan gave notice of the accident to his employer in which there was also a demand for the payment of compensation. This was followed up by the issue of a demand made through a lawyer's notice issued on June 3, 1961. But to that notice a reply was sent by the employer on June 14, 1961 repudiating the claim to compensation. Eventually Usman Khan made a claim before the concerned Commissioner for Workmen's Compensation. The Commissioner directed the payment of a sum of Rs. 3,360 as compensation on the ground that Usman Khan had suffered permanent total disablement and therefore became entitled to the sum of Rs. 3,360 specified in the third column of Sch. IV to the Workmen's Compensation Act which will be referred to as the Act.
3. The employer appeals.
4. It is no longer disputed before us that Usman Khan met with an accident and lost the complete use of his right arm during the course of his employment under the employer. That is what Mr. Puttaswamy submitted to us on behalf of the employer, although in the reply which was sent to the lawyer's letter the employer denied that Usman Khan had suffered any injury in the course of his employment. But the argument presented before us was that the Commissioner was wrong in finding that there was permanent total disablement and that the proper finding which the Commissioner should have recorded was that there was only partial disablement entitling Usman Khan to a sum of not more than Rs. 2,016, which is 60 per cent of the amount claimable by him if really there had been permanent total disablement.
5. Now, if the Commissioner's finding that there was permanent total disablement is correct, it is not disputed that the compensation awarded by him was properly determined. Section 4 of the Act directs that where there is permanent total disablement resulting from an injury and the injured workman has been in receipt of monthly wages falling within limits shown in the first column of Sch. IV, the compensation payable to him is the amount shown against such limits in third column thereof. Since there was no controversy between the employer and the employee that the monthly wages which Usman Khan was receiving was Rs. 80 a month, it should follow that the sum of Rs. 3,360 would be the compensation payable to him if there was permanent total disablement, as found by the Commissioner.
6. It is similarly indisputable that, if the disablement was not permanent total disablement, but was only permanent partial disablement as contended for the employer. Usman Khan would have been entitled under the provisions of Section 4(1)(c)(i) to a sum equivalent to 60 per cent of Rs. 3,360.
7. Now ‘partial disablement’ is defined by Section 2(1)(g) of the Act, while ‘total disablement’ is explained in the definition contained in clause (1) of that sub-section. Clause (g) reads:
“‘Partial disablement’ means, where the disablement is of a temporary nature, such disablement as reduces the earning capacity of a workman 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: provided that every injury specified in Schedule I shall be deemed to result in permanent partial disablement;”
Clause (1) reads:
“‘Total disablement’ means such disablement, whether of a temporary or permanent nature as incapacitates as 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 the permanent total loss of the sight of both eyes or from any combination of injuries specified in Schedule I where the aggregate percentage of the loss of earning capacity, as specified in that Schedule against those injuries, amounts to one hunrred percent.”
8. The argument placed before us was that, since Usman Khan lost the use of only one hand, the disablement was only partial though permanent disablement, particularly since it did not incapacitate him for all work which he was capable of performing at the time of the accident.
9. The effect of the finding recorded by the Commissioner was that Usman Khan was incapacitated for all work which he was capable of performing at the time of the accident in which he was involved. This finding being a finding essentially on a question of fact, is not what can be called in question in an appeal under Section 30 of the Act which lies only if the appeal involves a substantial question of law.
10. Mr. Puttaswamy however submitted to us that this appeal did raise two substantial questions of law. His first submission was that, since Usman Khan himself, in the notice which he gave to the employer about the accident, made it very clear that the injuries resulted in only permanent partial disablement, and that since that statement was also reaffirmed in the lawyer's letter addressed to the employer on June 3, 1961, it was not within the competence of the Commissioner to make out a special case for Usman Khan and award him compensation on the basis of permanent total disablement. The other contention maintained by Mr. Puttaswamy was that, since according to the provisions of Sch. I to the Act, the loss of a hand must be deemed to result only in permanent partial disablement as provided by the definition in clause (g) of Section 2(1), it was impossible for the Commissioner to find permanent total disablement.
11. It is true that both in the notice of the accident and in the lawyer's letter there was a reference to permanent partial disablement. But when a claim was made before the Commissioner, Usman Khan very wisely desisted from stating whether the disablement was of the one kind or the other. All that he did was to specify the injuries which he sustained and the other particulars which he was required to specify and to make a claim for the payment of a sum of Rs. 3,360.
12. Mr. Ganapathi Bhat for the workman is, in our opinion, right in contending that that being the form in which the claim was made, it could not be said that the Commissioner made out for the workman a case entirely at variance with that which was presented before him. The argument advanced by Mr. Bhat was that the claim for the payment of a sum of Rs. 3,360 was inexplicable on any other hypothesis than that the disablement was a permanent total disablement. It seems to us that the argument cannot be dismissed as insustainable.
13. Nor do we find it possible to say that the statement in the notice of accident and the lawyer's letter that the disablement was only a permanent partial disablement could have precluded Usman Khan from urging before the Commissioner that in truth the disablement was a permanent and total disable-ment.
14. In a case like this where a claim to compensation is made before a Commissioner, all that is necessary for the workman to do is to state the particulars relating to the injuries such as those which are specified by him. It is for the Commissioner upon the presentation of the claim to determine, on the materials before him, what precisely was the nature of the disablement. It was really unnecessary for Usman Khan, in the notice of accident which he served on the employer under Section 10(1) of the Act, to describe the exact nature of the disablement, since it was not necessary for him to say in that notice whether the disablement was total or partial, as is clear from sub-sections (1) and (2) of Section 10. Sub-section (1) enjoins notice of the accident in manner provided by the Act. Sub-section (2) prescribes the manner in which that notice shall be given. What it provides is that every such notice shall give the name and address of the person injured and shall state in ordinary language the cause of the injury and the date on which the accident happened. Usman Khan did state in his notice the cause of the injuries and the date on which the accident happened, in ordinary language. But what he unnecessarily did was to add in that notice that the injuries had produced permanent partial disablement. It is not improbable that the lawyer who issued the notice which followed the earlier notice, mechanically incorporated in his letter what had been quite unnecessarily stated by Usman Khan in the notice which he himself had given.
15. However that may be, it is clear that the Commissioner was not precluded, notwithstanding what might have been stated by Usman Khan or his lawyer when the notice of demand was made, from finding whether on the materials before him the disablement was total or partial, although it was of course open to the Commissioner to consider the fact that the allegation was an allegation of partial disablement at the earliest stagte. That being the true position, we should not, in our opinion, accede to the submission that the allegation of partial disablement made on the earlier occasions to any extent resulted in deprivation of the power in the Commissioner to find total disablement.
16. We should now turn to consider the submission which rests upon Sch. I to the Act. Item 2 of that Schedule says that the loss of a hand and a foot produce one hundred per cent loss of earning capacity. The note appearing at the end of the Schedule makes it clear that complete and permanent loss of the use of any limb referred to in that Schedule shall be deemed to be the equivalent of the loss of that limb. So it is clear that the loss of the use of the hand which was the consequence of the accident is for the purposes of the Act the loss of the hand itself. The argument constructed was that total disablement as defined by clause (1) of Section 2(1) means incapacity for all work which Usman Khan was capable of performing at the time of the accident and that such incapacity as indicated by the second item in Sch. I is not produced unless there is, in addition to the loss of a hand, also the loss of a foot. So, we were asked to say that since Usman Khan lost only a hand and did not lose a foot in addition, the earning capacity was not totally destroyed and that therefore there was no incapacity for all work which Usman Khan was capable of performing at the time of the accident.
17. The concomitant argument which was maintained was that, on the materials before the Commissioner, what emerged was no more than that Usman Khan could no longer work as the driver of a lorry and that in the physical condition in which he was after the accident, there was no incapacity for other kinds of work, although such other work in which he could engage himself might not be productive of the same income which he could have derived before the accident happened.
18. Turning to the argument founded on the second item of Sch. I to the Act, it should be observed that that argument is founded upon the concluding part of the definition in Section 2(1)(g) which consists of the words “provided that every injury specified in Sch. I shall be deemed to result in permanent partial disablement”. These words do not mean that Sch. I is a statutory catalogue of injuries producing only permanent partial disablement and nothing more serious than that. We should understand those words as incorporating a provision, that, to sustain a plea of permanent partial disablement it is enough to prove one of the injuries in Sch. I. That provision which in truth is a rule of evidence dispensing with extrinsic or other proof in that way, cannot be comprehended as a statutory declaration that the injuries enumerated in that Schedule, produce, in no case, incapacity graver than permanent par-tial disablement. So, the tenth item of Sch. I which refers to the loss of a hand as productive of 60 per cent diminution in the earning power can sustain a plea of permanent partial disablement even in case where what is proved is nothing more than the loss of a hand. But neither Section 2(1)(g) nor Sch. I can support the deduction that the loss of a hand could in no case be made the foundation of a plea of permanent total disablement. A disablement which falls within Section 2(1)(1), and, is therefore complete does not become partial by reason of the injury causing it being within Sch. I.
19. That, that, is the correct view to take is what is indicated by Section 4(1)(c) which makes it manifest that the question whether there is partial or total disablement is dependent essentially upon the consequence of the injury and not upon whether the injury is the one specified in Sch. I. That clause of Section 4(1) makes it clear that its emphasis is upon the consequence which the injury produced and not upon the injury itself, although in a case where there is no evidence that the injury did not produce any total disablement such injury, in law, must be deemed to have resulted in permanent partial disablement.
20. The true position therefore is that, if there is no other material on record except that there was the loss of a hand in consequence of an injury, the conclusion that should be reached is that there was only permanent partial disablement. But if the workman who lost the hand is able to produce evidence that the injury which he sustained produced or resulted in total disablement such as what clause (1) of Section 2(1) defines, there is nothing either in the definition in clause (g) of that sub-section or in Sch. I which can preclude him from claiming higher compensation on the basis of total disablement.
21. We must therefore decline to say that the fact that Usman Khan lost only a hand and nothing more, excludes a finding that there was permanent total disablement. The argument to the contrary has to be repelled for another reason. Now, according to the medical evidence given by P.W 1 which stands corroborated by the evidence given by R.Ws 1 and 2,. the accident broke the right collar bone of Usman Khan and also the third rib on the right hand side. The evidence of P.W 1 was that none of those bones ever united and that nothing that he was able to do for Usman Khan could ever repair the damage caused to him. He was definite that any further attempt to bring the broken bones together would have been dangerous and might have caused death on account of perforation of the lungs.
22. So it will be seen that there was a plurality of injuries sustained by Usman Khan. There was a fracture of the collar bone and there was also a fracture of the rib. But what is obvious is that the loss of the hand was plainly attributable to the fracture of the collar bone and not to the fracture of the rib. Nor was any foundation laid for the theory that the fracture of the rib also con-tributed to the loss of the hand.
23. In that view of the matter, Usman Khan was entitled to claim compensation not only in respect of the injury which resulted in the loss of the hand but also the injury to the rib. That he could make such a claim is clear from the Explanation appearing underneath clause (c) of Section 4(1) which provides that where more injuries than one are caused by the same accident, the amount of compensation could be claimed in respect of all those injuries, subject to the condition that the aggregate compensation shall not exceed what is claimable for permanent total disablement. In that view of the matter the compensation awardable was not merely the sum of Rs. 2,016 for the loss of the hand, even if it could be said that such loss resulted in only permanent partial disablement, but also compensation for the fracture of the rib. In any view of the matter, that injury to the rib is what displaces the contention that there was only permanent partial disablement attributable to the loss of the hand.
24. What remains to be considered is the postulate that the materials before the Commissioner did not establish permanent total disablement. This argument was constructed on the definition of total disablement contained in clause (1) of Section 2(1). We were asked to say that since there could be no total disablement unless such disablement incapacitated Usman Khan for all work which he was capable of performing at the time of the accident, the Commissioner could not have found that there was such total disablement. This argument assumes that there remained in Usman Khan capacity for some kind of work which he was capable of performing at the time of the accident.
25. Mr. Puttaswamy is right, in our opinion, in submitting that total disablement is not established merely by proof of incapacity on the part of Usman Khan for the performance of his duties as a lorry driver, which he was, at the time of the accident. What should be established is that there was incapacity for every other kind of work which he was capable of performing at the time of the accident, whatever may be the nature of that work and whatever may be the income derivable therefrom. So understood, the total disablement which Section 2(1)(1) defines, lis, established only where the earning capacity becomes totally inexistent and no modicum of it remains.
26. That Usman Khan, notwithstanding the loss of his right hand, could have still secured some kind of employment somewhere and-that the loss of the right hand did not constitute an impediment to engage himself in such activity was Mr. Puttaswamy's submission.
27. But this submission rests upon hte theory that so long as Usman Khan had the physical ability or capacity to attend to some other kind of work, provided he was able to persuade someone to appoint him for such work, there would be no total or complete incapacity. But it will be seen that clause (1) does not speak of incapacity ‘to work’ but incapacity for ‘work’. The preposition ‘for’ appearing in the phrase “incapacitates a workman for all work” which is to be found in clause (1) make it manifest that the incapacity to which that clause refers is not physical incapacity but incapacity to secure employment produced by the injury which aused the disablement. If there be such capacity to secure employment, whatever nay be the physical ability to perform work involved in such employment, and if there be no one who in the usual course of events would be willing to offer him such employment, there would remain in the workman 10 longer that modicum of the earning capacity, on the existence of which alone could it be said that the incapacity was not complete.
28. In Ball v. William Hunt & Sons Ltd. (1), interpreting the words ‘incapacity for work’ in paragraph 1(b) of the First Schedule to the Workmen's Compensation Act, 1906 Earl Loreburn L.C said this:
“In the ordinary and popular meaning which we are to attach to the language of this statute I think there is incapacity for work when a man has a physical defect which makes his labour unsaleable in any market reasonably accessible to him, and there is partial incapacity for work when such a defect makes his labour saleable for less than it would otherwise fetch”, (pp. 499; 500).
Lord Macnaghten, explaining the distinction between ‘incapacity to work’ and ‘incapacity for work’ pointed out that as illustrated in Lysons v. Andrew Knowles & Sons Ltd. (2):
“The first thing one has to do is to apply one's mind to what is the substantive intention and meaning of the statute”. (p. 501).
29. And that when that is done the injury for which the statute gives compensation is not mutilation or disfigurement or loss of physical power, but loss or diminution of the capacity to earn wages. Proceeding further the noble Lord observed:
“The earning of wages depends as much on the demand for the workman's labour as it does upon his physical ability to work. If because of his apparent physical defects no one will employ him, however efficient he may be in fact, he has lost the power to earn wages as completely as if he was paralysed in every limb” (p. 505).
30. The words ‘incapacitates the workman for all work’ occurring in clause (1). of Section 2(1) have to be understood in the same way in which ‘incapacity for work’ was interpreted by the House of Lords in the above case.
31. That being so, what we should say is that in all cases where there is no longer any earning power remaining in the workman who was injured, whatever may be his physical power to perform a duty in any sphere of activity, so long as no one could be persuaded to offer him any such employment, the incapacity is complete. In the case before us Usman Khan, who had completely lost the use of his right hand and one of whose ribs was broken and could not be repaired despite all the medical attention which he received, on account of the danger to his life by reason of the perforation of the lungs, would not, it is obvious, have been able to secure any employment, even if some little physical power remained in him, and, was therefore incapacitated for all work which he was capable of performing at the time of the accident. That, in effect, was the conclusion reached by the Commissioner and we do not see any reason for dissenting from that view taken by him.
32. We therefore dismiss this appeal with costs. Advocate's fee Rs. 100.