Bhaskar Bhattacharya, J.:— This appeal under S. 30 of the Workmen's Compensation Act is at the instance of the insurance company and is directed against an award, dated 5 March 1997, passed by the 2nd Commissioner for Workmen's Compensation, West Bengal, in Claim Case No. 524 of 1995 thereby awarding a sum of Rs. 1,05,895 on the ground of 100 per cent loss of earning capacity.
2. Respondent 1 lodged the aforesaid claim case on the grounds that he was working as a khalasi of the vehicle No. WGE 2377 owned by respondent 2 and insured with the appellant, that on June 3, 1994 on its way to Calcutta from Santipur, the vehicle met with an accident as a result, respondent 1 received injuries in both hands, shoulder, waist and back, that he was initially treated at Ranaghat Sadar Hospital and subsequently at Kalyani Hospital and a surgical operation was done in the said hospital in the left hand and that he had suffered 100 per cent loss of earning capacity. In the said application he described his monthly wages of Rs. 1,500 a month and claimed a lump sum payment of Rs. 1,05,895 for loss of 100 per cent earning capacity and further claimed penalty and interest from the date of accident.
3. The aforesaid claim case was not contested by respondent 2, the owner of the vehicle. The appellant however contested the claim by filing written statement.
4. At the time of hearing of the aforesaid case, the claimant himself deposed as P.W 1, a “co-khalasi” of the vehicle and eye witness of the accident gave evidence as P.W 2 and the doctor certifying 100 per cent loss of earning capacity figured as P.W 3. The appellant adduced no evidence to contradict the evidence given on behalf of respondent 1.
5. The learned Commissioner, on the basis of the materials on record, accepted the case of respondent 1 that he was aged 28 years and was in the employment of respondent 2 as a ‘khalasi’ of the vehicle insured with the appellant and that he suffered a loss of 100 per cent earning capacity due to such accident on thus passed the award impugned in this appeal.
6. Sri Das, the learned advocate appearing on behalf of the appellant, at the outset challenged the findings of the Commissioner on all the points, viz., age of the applicant, relationship of master and servant between respondent 2 and the applicant, rate of salary, nature of injury and even the factum of accident.
7. After going through the materials on record we find that all the findings recorded by the learned Commissioner are based on appreciation of uncontroverted evidence adduced on behalf of respondent 1 and any prudent man from the materials on record will come to such findings. Therefore, there is no scope of interference with such findings of fact based on evidence in this appeal under S. 30 of the Workmen's Compensation Act.
8. Sri Das has however raised a pure question of law in support of this appeal.
9. According to Sri Das, even if the case of respondent 1 as regard the injuries is accepted, it is a case of loss of only left hand; but such injury does not come within any of the items (1) to (6) as mentioned in Sch. I of the aforesaid Act. Sri Das contends that only in the cases of serial Nos. 1 to 6 of Sch. I, the Commissioner can declare 100 per cent loss of earning capacity, Sri Das submits that in case of loss of both hands or loss of a hand and a foot as specified in serial Nos. 1 and 2 respectively, the Commissioner declare 100 per cent loss of earning capacity. Sri Das opines that this is a case where the Commissioner ought to have held that respondent 1 lost 50 per cent of earning capacity, having lost only the left hand. In support of such contention Sri Das has relied upon the following decisions:
(a) Dhrubendra Ray v. Biswanath Agarwal [1994 (1) A.C.C 1].
(b) New India Assurance Company, Ltd. v. Chittaranjan Sandha [1996 A.C.J 35](On.)
(c) New India Assurance Company, Ltd. v. Bhagaban Bhuyan [1991 A.C.J 726] (Ori.)
(d) New India Assurance Company, Ltd. v. Sammayya M. Shankar (Workman) [1996 (2) L.L.N 1005].
10. In the case of Dhrubendra Roy (vide supra), the Court was considering a case of permanent partial disablement resulting from injury. The certificate issued by the debtor did not breath a word about the nature of job which was being undertaken by the claimant. The Commissioner, in that case, did not consider the stand of the employer that the claimant was fit enough to discharge his normal duties and was working as a driver under another employer. The certificate merely contained the recital that extent of the permanent disability was 50 per cent. In the fact of such a case, Pasayat, J., observed that such certificate could not be accepted as it did not take note of the nature of the duty to be performed by the claimant nor did it mention the percentage of loss of earning capacity. In our opinion, the said decision has no factual application to the instant case where the doctor being examined as P.W 3 has clearly asserted that sensation over the left index, middle, right and little fingers are absent with ventral contractor of all these fingers. He further opined that the claimant was unfit for the job of khalasi of a vehicle and as such sustained permanent total disablement of 100 per cent.
11. New India Assurance Company Ltd. v. Chittaranjan Sandha (vide supra), is a case under S. 4(1)(c)(ii) of the Act where the doctor assessed the percentage of permanent disability as 40 per cent. The said evidence was not accepted as the doctor's assessment was not in conformity with the provision contained in S. 4(1)(c)(ii) and Explanation II of the said section. Such is not the case in our hand and thus the said decision does not help the appellant in any way.
12. We fail to understand how the decision in the case of New India Assurance Company, Ltd. v. Bhagaban Bhuyan (vide supra), can be of any assistance to the appellant. In the said case, although the Tribunal observed that there was no material in support of the injuries, but nevertheless award Rs. 45,000 plus Rs. 1,000 for damages to the cycle of the claimant. Under the aforesaid circumstances, Pasayat, J., instead of remanding the matter, in order to avoid delay, himself assessed the amount of compensation on the basis of material on record.
13. In New India Assurance Company, Ltd. v. Sammayya [1996 (2) L.L.N 1005] (vide supra), it was held by Andhra Pradesh High Court, in Para. 10, at page 1010, that:
“…if the Commissioner had evidence only to show the loss of partial or permanent total disablemenat, but not the evidence to show actual loss of earning capacity, he cannot straightaway conclude that the loss of earning capacity of the workman is equal to the percentage of “permanent or partial disablement…”
As indicated earlier, in this case the doctor as P.W 3 has given evidence that in view of the nature of job of a khalasi of a vehicle, the claimant suffered 100 per cent loss of earning capacity. Therefore, the said decision is also of no avail to the appellant.
14. Therefore, in our considered opinion, the learned Commissioner rightly relied upon the evidence of the doctor and concluded that the claimant suffered 100 per cent loss of earning capacity. We do not find any substance in the contention of Sri Das that the claimant having lost only one hand, the loss of earning capacity should be 50 per cent because the Scn. I prescribes 100 per cent loss of earning capacity in case of loss of both hands.
15. Sri Das lastly by relying upon the decision of the Apex Court in the case of Lilaben Udesing Gohel v. Oriental Insurance Company reported in (1996) 3 SCC 608 : A.I.R 1996 S.C 1605 contended that instead of permitting respondent 1 to withdraw the amount of compensation, we should pass an order for keeping the said amount in a long term fixed deposit with a Nationalised Bank enabling the claimant only to withdraw interest therefrom.
16. In our view, the direction given by the Apex Court in the aforesaid case arising out of a proceeding under Motor Vehicles Act cannot be followed in the case in hand in view of S. 8(6) of the Workmen's Compensation Act. The aforesaid provision of the Act given a mandate to the Commissioner to pay the amount of compensation to a claimant who is not a woman or a person under legal disability by employing the word “shall” in such a case; on the other hand by using the word “may” in a case where the claimant is a woman or a person under legal disability, the Act gives discretion to the Commissioner to pass appropriate order as regards manner of payment of compensation as provided in Sub-secs. (7) and (8) of the aforesaid section. Therefore, we are unable to pass any such direction as regards the manner of payment of compensation as suggested by Sri Das.
17. Sri Banik, the learned advocate appearing on behalf of respondent 1.claimant, prayed for modification of the award impugned herein by passing a direction for payment of interest on the amount awarded from the date of accident. We are afraid, in the absence of any appeal or cross-objection at the instance of respondent 1 against the award, this Court cannot modify the award in his favour to the detriment of the appellant in the appeal preferred by the Insurance Company. Sri Banik although has relied upon several decisions in support of his contention that an appellate Court can pass a further direction for payment of interest but he could not place any authority before us showing that in an appeal by insurance company or employer, an appellate Court has incorporated a new direction for payment of interest from the date of accident notwithstanding the fact that the claimant has not preferred any separate appeal or cross-objection against the award. Thus, the prayer of Sri Banik cannot be acceded to.
18. Therefore, there is no merit in the instant appeal and as such the same is dismissed with costs which we assess at 100 Gms.
19. A. Talukdar, J.:— I agree.