JUDGMENT

N.S Veerabhadraiah, J.:—

This is the insurer's appeal against the order passed by the Commissioner for Workmen's Compensation Belgaum, questioning the findings.

2. The brief facts of the case are as follows:

That on 29.5.1986 the injured Nyaya Mathasab Ghouse Sab Muke, while during the lorry of Sri Allamkhan Hussain Khan Rathan, it met. with an accident near Sankeshwar and he sustained with grievous injuries resulting in the amputation of right hand ring finger and little finger and other grievous injuries to the palm and also injury to the middle finger. On account of the injuries suffered during the course of his employment, he filed an application before the Commissioner for Workmen's Compensation, Belgaum. The injured got himself examined as P.W 1 and also examined the Doctor and produced Exts. P1 to P14 whereas, the owner of the lorry remained absent and the matter was contested by the Insurance Company.

3. The Commissioner for Workmen's Compensation considering the evidence and the documents produced held that the injuries suffered by the workman has resulted in 100% loss of earning capacity and awarded a total compensation of Rs. 1,06,785/- with interest. The insurer being aggrieved of the finding fixing the percentage of loss of earning capacity at 100% has come up with this appeal.

4. Learned Counsel for the appellant Sri O. Mahesh contended that the injuries suffered all come within the scheduled injuries. Therefore, the Commissioner has erred in fixing the loss of earning capacity at 100%. Secondly, that the Commissioner has not considered the nature of the injuries suffered. Even according to the evidence of the doctor, at the most, the percentage of loss of earning capacity can be taken only as 50% and not more than that. The injuries suffered by the workman has not resulted in his total disablement for all such other works and under the circumstances, the determination of the loss of earning capacity at 100% by the Commissioner is not sustainable in law. Therefore, he prayed to allow the appeal.

5. On the otherhand, the learned advocate Sri Ram Bhat, contented that on account of the injuries suffered, it has resulted in total permanent disability wherein the workman is not in a position to discharge his duties as a driver and thereby, the Commissioner for Workmen's Compensation is justified in fixing the loss of earning capacity at 100%. He secondly contended that the appeal is filed only by the insurer and therefore, the finding of the Commissioner being not questioned by the owner; the appeal itself is not maintainable, as it is a pure question of fact. Learned Counsel in support of his submissions relied on the decision reported in Hanumantha Gowda v. Devaraju . ILR 19953 Kar. 1916. and also on the decision reported in Pratap Narain Singh Deo v. Shrinivas Sabata . 1976 ACJ 141. and submitted that wherever the injuries have resulted in permanent disability or in total disablement the workman is entitled for 100% loss of earning capacity. Accordingly, he prayed to dismiss the appeal.

6. In the light of the submissions, the points for consideration that arise are:

1. Whether the appeal by the insurer is not maintainable?

2. Whether fixing of loss of earning capacity at 100% by the Commissioner for Workmen's Compensation does call for interference?

3. What Order?

7. It is an admitted fact that the workman in the course of his employment while driving the lorry of Sri Allamkhan Hussain Khan Rathan met with an accident and as a result of it, he sustained with injuries over his right hand and right hand fingers. On account of the severe injuries, the right hand ring finger and little finger were amputated and he had also sustained some minor injuries over the palm and on the middle finger. In view of the contentions of the learned advocate, now firstly it has to be exmined, whether the appeal by the insurer is maintainable or not. In the case on hand, the owner of the vehicle Allamkhan Hussain Khan Rathan has remained absent before the Commissioner for Workmen's Compensation. In this appeal, the insurer has questioned the loss of earning capacity determined by the Commissioner for Workmen's Compensation, it is further to be noted that the insurer has not questioned the quantum of compensation awarded. When the percentage of loss of earning capacity has been questioned, it is purely a question of law which has to be scrutinised on the materials available on record. Therefore, it is a question a law which is involved for consideration. In that view of the matter, the submission of the learned Counsel for the respondents that the appeal by the insurer is not maintainable cannot be accepted and it is without any merits.

8. The next point for consideration that arises is, whether the Commissioner for Workmen's Compensation is justified in fixing the loss of earning capacity at 100% and if so, it is liable to be interfered with?

9. It is in the evidence of the doctor that the workman sustained injuries over the 2nd, 3rd, 4th and 5th fingers of right hand. Out of the said fingers, the ring finger and the little finger were amputated and as a result of the injuries suffered, he has suffered with disability and he was not in a position to move the other fingers and he could not have any grip over the right hand and the doctor has opined that the disability is about 50% over the upper limbs. According to the evidence of the doctor himself, that as far as the injuries are concerned, the disability is 50%. That in case of injuries suffered by the workman in the course of his employment, for the purpose of awarding compensation, the loss of percentage of the earning capacity has to be determined as per Schedule I, Part I and Part II.

10. The evidence given by the doctor shows that the percentage of disability suffered is in respect of the upper limbs to an extent of 50% and the doctor has not spoken anything about the loss of earning capacity. Therefore, two factors remain for consideration. One is the disability suffered and the another is loss of earning capacity, in that view of the matter, the Court has to consider the percentage of disability suffered for assessment of loss of earning capacity. In the Workmen's Compensation Act, nowhere it is provided for assessment of percentage of disability. What Schedule I denotes is for assessment of loss of earning capacity. If the disability results in the total: loss of earning capacity, it comes within the expression of total disablement of permanent disablement. In this regard, in the decision reported in Pratap Narain Singh Deo v. Shrinivasa Sabata, the Apex Court at para 5 observed as follows:

“The expression ‘total disablement’ has been defined in Section 2(1)(1) of the Act as follows:

(1) “total disablement” means such disablement whether of a temporary or permanent nature, as incapacitates workman all work which he was capable of performing at the time of the accident resulting in such disablement.”

It has not been disputed before us that the injury was of such nature as to cause permanent disablement to the respondent, and the question of consideration is that whether the disablement incapacitated the respondent for all work, which he was capable of performing at the time of the accident. The Commissioner has examined the question and recorded his finding as follows:

“The injured workman in this case is carpenter by profession… By loss of the left hand above the elbow, he has evidently been rendered unfit for the work of carpenter as the work of carpentry cannot be done by one hand only.”

This is obviously a reasonable and correct finding. Counsel for the appellant has not been able to assail it on any ground and it does not require to be corrected in this appeal. There is also no justification for the other argument which has been advanced with reference to Item 3 of Part II of Schedule I, because it was not the appellant's case before the Commissioner that amputation of the arm was from 8″ from tip of acromion to less than 4½″ below the tip of olecranon. A new case cannot therefore be allowed to be set up on facts which have not been admitted or established.”

While considering the provisions of Section 2(1)(1) the Apex Court has clearly held that the amputation of the arm has made the workman unfit for the work of the carpenter and in that view of the matter held that the disablement is one of total and not partial. Accordingly, upheld that the total loss of earning capacity is 100%.

11. Similarly, this Court in the decision reported in Hanumantha Gowda v. Devaraju considering the provisions of Section 2(1)(1) held at page 1921 as follows:

“If the workman is incapacitated to do all the work which he was capable of performing at the time of the accident, it is a case of total disablement. It may be that in view of the above injuries, the workman is capable enough to render some other sort of work but still when there is incapacity to do the work which he was capable of performing by the date of the accident, it is a case of total disablement.”

In the Workmen's Compensation Act, Section 4 provides for determining the quantum of compensation that can be awarded by taking into consideration the list of injuries mentioned in Scheduled I, Part I and Part II. But the factors that have to be taken into consideration for the purpose of assessing the percentage of disability with such equation to determine the percentage of loss of earning capacity is not provided. In that view of the matter, two factors, i.e, one is percentage of disability and another regarding percentage of loss of earning capacity are two distinct and separate factors which should be considered according to the medical evidence available. Even though Schedule I has not provided for and if the workman were to suffer with such percentage of disability which renders him unfit to do the work which he was doing in the light of the decisions supra, under such circumstances, it is open for the Commissioner for Workmen's Compensation to award the compensation taking into consideration the loss of earning capacity according to the injuries suffered.

Section 2(g) of the Workmen's Compensation Act reads as follows:

“2(g) 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 Part II of Schedule I shall be deemed to result in permanent partial disablement.”

It is in respect of the list of injuries described in Part II of Schedule I have to be construed as permanent partial disablement and accordingly, provides for loss of earning capacity.

Similarly, Section 2(1) reads as follows:

“2(1) ‘total disablement’ means such disablement, whether of a temporary or permanent nature, as incapacities 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 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 one hundred per cent or more.”

If a workman were to suffer such injuries as listed in Part I or Part II of Schedule I, he is entitled to claim such percentage of logs of earning capacity. By reading both the provisions together. It does not provide for the method of assessing the percentage of disablement.

Section 4(c)(ii) of the Act reads as under:

“4(c)(ii) in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury.”

Here also, it is provided for determining the loss of earning capacity and not the percentage of disability.

In my opinion, without assessing the percentage of disability, the loss of earning capacity cannot be determined at all. In that view of the matter, while awarding compensation, in respect of the injuries suffered, the Court should take into consideration firstly, the percentage of disability which may result in permanent or partial disablement which sometimes leads to total loss of earning capacity as the case may be.

In the case on hand, on account of the injuries suffered by the workman, it has resulted in the amputation of the ring finger as well as the little finger and there are certain restrictions over the other fingers which has led to disability. It is no doubt true that the workman is a driver, when the disability stated by the doctor is 50% and there being amputation of only two fingers, it is rather difficult to hold that the disability of 50% in the case on hand has resulted in 100% of the loss of earning capacity. The facts mentioned in the decision supra cannot be made applicable to the facts of the present case. In that view of the matter, the finding of the Commissioner for Workmen's Compensation fixing the loss of earning capacity at 100% is not sustainable and in view of the clear evidence of the doctor, the disability and the loss of earning capacity has to be fixed only at 50% and not more than that. There is no dispute regarding the age of the workman, the earnings and other factors. In that view of the matter, the loss of earning capacity can only be taken as 50%.

12. For the foregoing reasons, the appeal is allowed in part holding the percentage of loss of earning capacity as only 50%. The workman is entitled for 50% of the amount awarded by the Commissioner for Workmen's Compensation which shall carry interest at 6% per annum. If any excess amount is deposited, the same may be refunded to the appellant by the Commissioner.

The parties shall bear their own costs.