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Executive Engineer, Pwd (B&R), Udaipur v. Narain Lal
Factual and Procedural Background
This is an appeal under Section 30 of the Workmen's Compensation Act against the award of the Workmen's Compensation Commissioner, Udaipur dated July 31, 1975.
The workman, Narain Lal, was employed as a motor driver in the office of the Executive Engineer, Udaipur. On April 6, 1971 a jeep in which he was travelling overturned while he was on duty. As a result he suffered multiple injuries — including serious injuries to the head, a fractured collar bone and injuries to the spinal cord and neck. At the time of the accident his monthly wages were Rs. 253/-. The applicant claimed compensation of Rs. 11,500/-, alleging the injuries occurred in the course of employment and resulted in incapacity.
The State (opposite party) denied that Narain Lal was in its employment on April 6, 1971 and contended that the injuries were minor and not covered by Schedule I of the Act. The State further argued that the applicant resumed duty after obtaining a medical fitness certificate, was paid full salary while on leave for treatment and continued to receive the same job and increments, so that no loss of earning capacity occurred.
The Commissioner framed the following issues: (1) Whether the injuries resulted in permanent total disablement? (2) Whether the injuries were caused by the workman’s own negligence? (3) Of what amount the workman is entitled to under the Workmen's Compensation Act, 1923? (4) Relief?
Evidence was led on behalf of the applicant (the applicant himself and witnesses including the Executive Engineer and medical witnesses). The State did not examine any oral witnesses but produced documents. The learned Compensation Commissioner accepted the claim in part and awarded Rs. 4,180/-, payable within 30 days, and costs. The State appealed to this Court challenging the award.
Legal Issues Presented
- Whether the injuries to the workman during the course of employment resulted in permanent total disablement?
- Whether the injuries were caused due to the negligence of the workman himself?
- What amount the workman is entitled to as compensation under the Workmen's Compensation Act (in particular for permanent partial/total disablement)?
- Whether the appeal is maintainable under Section 30 of the Workmen's Compensation Act (i.e., whether a substantial question of law arises)?
Arguments of the Parties
Appellant-State's Arguments
- The applicant failed to establish permanent disability and the extent of incapacity; therefore he is not entitled to compensation under the Act.
- There is insufficient material to infer permanent disability or loss of earning capacity; reliance was placed on authorities (including Calcutta Port Commrs v. Prayag Ram and others) to argue medical evidence alone cannot establish loss of earning capacity.
- The learned Commissioner erred in law in allowing Rs. 4,480/- (contended figure) and costs to the applicant.
- The applicant had resumed duties and continued to receive full pay and increments; hence there was no diminution in earning capacity.
Applicant-Respondent's Arguments
- The appeal is not maintainable as no substantial question of law is involved under Section 30 of the Act; reliance placed on G.R. Sane v. D.S. Sonavane & Co. and Alimohamed v. Shankar.
- The parties agreed to refer the matter to a Medical Board and to abide by its opinion; the Medical Board assessed 50% disability for the work of a driver and recorded ongoing limitations (pain, neck movement restriction, weakness in left limbs).
- Even though the workman was continued in service by way of the employer's grace, that does not negate the statutory right to compensation for loss of earning capacity; reliance placed on Ram Naresh v. Lodhna Colliery Co.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Calcutta Port Commrs v. Prayag Ram | Explained that physical defect resulting from an accident may not necessarily reduce actual capacity to work; loss of earning capacity is a question of fact and medical evidence alone is not decisive for loss of earning capacity. | The court reviewed this authority but noted its ratio has been reconsidered elsewhere (Ram Naresh). The court discussed the authority when analysing whether medical evidence alone can determine loss of earning capacity, and observed that Calcutta Port's strict approach was not adhered to in subsequent cases. |
| Calcutta E.S. Corpn. v. Habul Chandra | Loss of earning capacity must be proved as a fact; medical evidence of physical disability alone is insufficient to prove loss of earning capacity. | The court cited the principle to underscore that loss of earning capacity is a factual question and cannot rest solely on medical percentages; it considered this when evaluating evidence of loss of earning capacity. |
| P.E. Davis & Co. v. Kesto/Kasto | Held that for injuries in course of employment compensation must be awarded in proportion to percentage loss of earning capacity; for non-scheduled injuries S.4(1)(c)(ii) applies and loss of earning capacity is paramount; medical percentage does not equate arithmetically to loss of earning capacity. | The court relied on this to explain how the Commissioner should assess compensation — by focusing on loss of earning capacity, not merely the medical percentage, and considering nature of work and circumstances. |
| Maharashtra Sugar Mills Ltd. v. Ashru Jaiwant Tribhuvan | Medical certificates deal only with physical incapacity; the court must consider nature of injury, nature of work, and availability of work; the court need not follow the medical opinion unquestioningly. | The court cited this authority to support the proposition that medical evidence is only one factor and the Court/Commissioner must take broader facts into account when assessing loss of earning capacity. |
| Seva Singh v. Indian Hume Pipe Co. | In assessing compensation under S.4(1)(c)(ii) loss of earning capacity must be considered; if a workman retains the same employment and wages after disablement, there may be no loss of earning capacity. | The court cited this as an example of the principle that actual continued employment at the same pay may indicate absence of loss of earning capacity, but considered it in the factual matrix where the employer's continued payment might be by grace. |
| G.R. Sane v. D.S. Sonavane & Co. | (Relied on by the applicant to support the contention that the appeal was not maintainable under Section 30 because no substantial question of law arose.) | The applicant relied on this authority for the maintainability point. The Court considered the maintainability argument in the context of the appeal but proceeded to decide the appeal on the merits. |
| Alimohamed v. Shankar | (Relied on by the applicant for the argument that no substantial question of law arises under Section 30, making the appeal not maintainable.) | The applicant cited this case for the maintainability issue; the Court considered the contention in its overall analysis of the appeal. |
| Ram Naresh v. Lodhna Colliery Co. | Held that, for permanent partial disablement, comparison of wages before and after the accident is not decisive; the correct inquiry is the reduction in earning capacity across every employment the workman could undertake at the time of the accident — a notional assessment for the Commissioner to make. Laid down principles: (1) earning is not the same as earning capacity; (2) rises in earning do not negate loss of earning capacity; (3) loss of physical capacity is not co-extensive with loss of earning capacity; (4) physical incapacity may be relevant to assess reduction in earning capacity. | The Court expressly agreed with and followed this authority. It adopted the view that employer's continued employment by grace does not negate a statutory claim for compensation and that loss of earning capacity must be assessed notionally by the Commissioner. |
| Ali Akbar v. Java Bengal Line (Calcutta) | Where a Commissioner calls a medical expert to assist in adjudication and the parties acquiesce (no procedural objection), the opposing party cannot later raise procedural objection in appeal to the use of that medical expert. | The Court applied this principle to hold that because the State (appellant) agreed to refer the case to the Medical Board and acquiesced, it could not later object to the Medical Board's findings. |
Court's Reasoning and Analysis
The Court examined the record and evidence: eyewitness and supervisory witnesses confirmed the accident occurred on April 6, 1971 while the applicant was on duty; medical evidence (Dr. R.P. Bajaj) described injuries to the skull, spinal cord and neck and recorded high percentages of disability in left upper and lower extremities; a Medical Board, convened with the consent of the parties, assessed a 50% disability for the job of a driver and noted ongoing neck pain, limited movement and left-sided weakness.
The State's core contention was that despite medical findings the applicant suffered no loss of earning capacity because he was continued in employment and paid full wages and increments. The Court undertook a doctrinal review of authorities addressing the relation between medical disability and loss of earning capacity, particularly contrasting the stricter approach in Calcutta Port Commrs v. Prayag Ram (which emphasised that medical evidence is not decisive for loss of earning capacity) with the approach in Ram Naresh v. Lodhna Colliery Co. (which recognises a notional assessment of loss across employments and emphasises that mere continuation in employment by employer's grace does not negate compensation).
The Court concluded that the statutory scheme of the Workmen's Compensation Act aims to secure the workman against loss in earning capacity resulting from permanent partial disability, and that such protection should not depend on the employer's mercies. The Court accepted the approach in Ram Naresh that a Commissioner must assess loss of earning capacity notionally, taking medical evidence and other facts into account.
The Court further held that because the case was referred to the Medical Board with the full consent of the appellant (State), and the appellant had acquiesced in that procedure, it could not turn around and disavow the Board's findings. Considering the medical evidence, the Medical Board's 50% finding, the applicant's testimony and supporting witness evidence, the Court found there was a permanent partial disability and no reason to interfere with the Commissioner's award.
Holding and Implications
HOLDING: The appeal is DISMISSED.
Implications and direct effects:
- The award of the Workmen's Compensation Commissioner (payment of Rs. 4,180/- within 30 days and costs) is upheld and is not disturbed by this Court.
- The Court endorsed the approach that loss of earning capacity for permanent partial disablement must be assessed by the Commissioner taking medical and other factual evidence into account, and that continuation in employment by employer's grace does not automatically extinguish a statutory claim for compensation.
- The opinion does not announce a novel precedent beyond applying and preferring the principles in Ram Naresh over the stricter reading of Calcutta Port Commrs; the decision’s immediate consequence is to affirm the compensation award in this case rather than to lay down a new, standalone rule of law.
This summary is limited strictly to the facts, arguments, reasoning and citations contained in the provided opinion and does not add information not present in the opinion.
This is an appeal under Section 30 of the Workmen's Compensation Act against the award of the Workmen's Compensation Commissioner, Udaipur dated July 31, 1975.
2. The facts of the case relevant for the disposal of this appeal are that Narain Lal was working as a motor driver in the office of the Executive Engineer, Udaipur. The applicant has contended that on April 6, 1971 he received personal injuries in the accident which occurred in the course of his employment. The Jeep in which the applicant was going had turned over, and as a result thereof the applicant received several serious injuries in his head and the collar bone was broken. The monthly wages which the applicant was received at the time of the accident were Rs. 253/-. It was contended that as the respondent had not made any payment of compensation to him payable under the Act, he has filed an application claiming payment of compensation to the extent of Rs. 11,500/-.
3. The opposite party, however, denied the claim of the applicant stating that the applicant was not in the employment of the opposite party on April 6, 1971. It was also contended by the opposite party that the minor injuries received by the applicant were not covered under Schedule I of the Workmen's Compensation Act. It was also contended by the opposite party that the applicant has not suffered any loss due to this accident as he has resumed duties after having obtained a medical certificate of fitness for resuming duty. It was also contended that the applicant was given leave on full pay during the time he was under treatment, and after resuming his duty, the applicant is doing the same job which he used to do before the accident, and that if the accident has resulted in any incapacity to the applicant still she applicant is being paid his full salary. Thus, the applicant was not incapacitated in his earning. The learned Compensation Commissioner struck the following issues:—
1. Whether the injuries to the workman during the course of the employment resulted into permanent total disablement?
2. Whether the injuries caused to the workman due to negligence of the workman himself?
3. Of what amount to workman is entitled for compensation under the Workmen's Compensation Act, 1923?
4. Relief?
4. On behalf of the applicant, apart from himself, Shri S.L Joshi, Executive Engineer, Indar Lal Tak, AEN, D.R.P Bajaj and Dr. Madan Mohan Sharma were examined. The opposite party did not examine any witness, but produced certain documents. After recording the evidence of the parties, the learned Compensation Commissioner came to the conclusion that the opposite party should pay Rs. 4,180/- within 30 days to the applicant. The costs were also allowed.
5. The State feeling aggrieved against the Award of the learned Workmen's Compensation Commissioner has come up in appeal before this Court.
6. On behalf of the State, it was contended that the applicant has failed to establish his permanent disability and the extent of incapacity in work and, as such, he is not entitled to any amount under the Workmen's Compensation Act. It was also contended that the learned Compensation Commissioner has erred in Law in allowing Rs. 4,480/- and costs to the applicant. The learned counsel for the State contended that there is no sufficient material on the record on the basis of which an inference could be warranted that there has been a permanent disability and that the workman has been incapacitated entitling him to the compensation claimed. Reliance was placed on Calcutta Port Commrs v. Prayag Ram(1), Cal. E.S Corpn. v. Habul Chandra (2), P.E Davis & Co. v. Kesto (3), Maharastra Sugar Mills v. Ashru Jaiwant (4) and Seva Singh v. Indian Hume Pipe Co. (45).
7. On behalf of the applicant-respondent, it was contended that the appeal filed by the State is not maintainable as no substantial question of law is involved in this appeal as contemplated under Sec. 30 of the Workmen's Compensation Act. Reliance was placed on G.R Sane v. D.S Sonavane & Go. (6) and Alimohamed v. Shankar (7).
8. It was also contended that the ratio decidendi laid down in Clacutta Port Commrs. v. Prayag Ram(1) has been reconsidered and diluted in Ram Naresh v. Lodhna Colliery Co. (8). It was also contended that the applicant and the opposite party had agreed to abide by the opinion of the Medical Board which may examine the applicant and declare the percentage of disability, as is evident from the proceedings dated August 27, 1974. Attention was also invited to the certificate issued by the Medical Board stating that the applicant Narain Lal was examined on January 8, 1974 He is a case of old injury cervical spine with weakness of limbs. He still has got pain and limitation of movements of neck and weakness in the left limbs. He has got 50% disability for the job of a driver which is likely to improve further with treatment.
9. The respective contentions of the learned counsel for the parties have been considered and the record of the case carefully perused. Shri S.L Joshi, Executive Engineer, states that the accident took place on April 6, 1971. He himself was sitting in the jeep. The jeep over-turned near the air port. He has further stated that the applicant was on duty on that date. Indarlal AEN has stated that the applicant Narain Lal was a driver in the jeep. Shri Ashok Kumar, Executive Engineer was driving the jeep. Dr. R.P Bajaj has stated that as a result of the accident the applicant received injuries on his neck, that the applicant had become unconscious for sometime and that even after regaining consciousness the applicant could not raise his left arm. The applicant received injuries on the skull and on the spinal cord. Dr. Bajaj has also issued a disability certificate in which he has shown the disability in the left upper extremity as 72.5% and on the left lower extremity 22.05%.
10. On examination, the Medical Board came to the conclusion that the disability was 50%. The learned Government Advocate has contended that from the evidence on record it has not been established that there was loss of earning capacity Reliance has been placed on Calcutta Port Commrs. v. Prayag Ram(1). In this case, it was observed that, “The physical defect if occurs as a result of the accident may not in fact reduce his capacity to do work, but if as a result of disfigurement or otherwise it makes his labour unsaleable to any market reasonably accessible to him, then also there will be a diminution of loss in the earning capacity, “Incapacity for work” is not the same thing as “incapacity to work”. It means the loss or diminution of wage earning capacity and it includes inability to work if that be the result of the accident.” It was further observed that 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. It is clear, therefore, that the loss of “earning capacity” is a issue of fact which must be proved by evidence of physical injury resulting in a loss of earning capacity in the instant case, it was held that there was permanent disablement of the medial cuneiform bone. In the absence of other evidence it does follow that there will be a diminution in the earning capacity of the workman concerned. This Court has repeatedly pointed out that this issue cannot be decided upon medical evidence only. The utmost a medical witness can give by way of a percentage is to give the percentage of the loss of the normal physical capacity or power. The loss of earning capacity is not necessarily coextensive wit 1 the loss of physical capacity and certainly the former does not prove the latter. The learned Commissioner, therefore, was altogether wrong in taking the evidence of the medical witness not only as relevant but as decisive on the question of the loss of earning capacity.”
11. In Seva Singh v. Indian Hume Pipe Co. (4A), it was observed that in assessing compensation under S. 4(1)(c)(ii) the loss of earning capacity of a workman as a result of his permanent total disablement has to be taken into consideration and indeed the compensation has to be made proportionate to the loss of earning capacity. It was further held that where a workman, after his permanent total disablement due to an accident, was continuously employed to do the same work which he was doing before the accident and received his full wages as well as increments, which had accrued since the time when he was discharged from the hospital, it was held that there was no loss of earning capacity and hence the workman's claim for compensation under S. 4(1)(e)(ii) was not maintainable.
12. In P.E Davis & Co. v. Kasto (3), it was held that the principle underlying is that an act which is reasonable and necessary, having regarding to all the circumstances, though not one which is part of the workman's original duty may be within the sphere of his employment. What is necessary is that there should be a casual connection between the accident and the employment and further that the cause should be a proximate cause and not a very remote cause. But at the same time if a workman in the course of his employment has to be in a particular place and by reason of his being in that particular place has to face a situation in which he receives injuries that fact itself would be a sufficient casual connection between the employment and the accident. It was further held that in case of injuries in the course of employment, the compensation has to be awarded in proportion to the percentage of loss of earning capacity. There are certain schedule injuries in regard to which the percentage of loss of earning capacity has been statutorily fixed so that in those cases the Commissioner has only to refer to the appropriate schedule and find out the quantum of compensation that has to be awarded to the workman. But where the Commissioner has to deal with cases of permanent partial disablement inflicted by injuries which are not scheduled, the provisions of S. 4(1)(c)(ii) of the Workmen's Compensation Act are attracted and the Commissioner has to assess the compensation in terms of those provisions. In assessing the compensation in such cases the most important and, the paramount thing that the Commissioner has to consider is the loss of earning capacity. Diminution of physical powers or any disablement of the body would in most cases affect the efficiency of the workman and also adversely effect his earning capacity but there is no arithmetical relation between the amount of disability and the amount of diminution in earning capacity in such cases. Everything will depend on the nature of the work that a workman has to do, the nature of the injury as well as on other environmental circumstances.
13. In Calcutta E.S Corpn. v. Habul Chandra (2), it was held that loss of earning capacity has to be proved as a fact. Medical evidence of physical disability alone is not sufficient. Loss of physical capacity cannot be equated with loss of earning capacity. Where workman claims compensation in respect of an injury which is not scheduled injury, the loss of earning capacity cannot be proved by mere medical evidence. It must be proved by evidence which will establish that the workman was, as a result of the injury unable to earn as much as he did before this being a question of fact it has to be proved by the evidence like any other questions of fact.
14. In Maharashtra Sugar Mills Ltd. v. Ashru Jaiwant Tribhuvan* (4), it was held that medical certificate deals only with physical incapacity. Court should take into account the nature of injury, the nature of work which the workman was capable of undertaking and its availability to him. The Court need not follow the medical opinion.
15. The learned counsel for the applicant-respondent placed reliance on Ali Akbar v. Java Bengal Line*, Calcutta (8) wherein it was held that where in a case under the Workman's Compensation Act the Commissioner took a recourse to the services of the medical expert whom he called to assist in the adjudication and the examination by such expert took place in the presence of the Commissioner, the opposite party and the applicant's pleader but the applicant's pleader not only did not raise any objection as to procedure but actually acquiesced in it. In this case, it was held that the applicant could not raise any objection in appeal.
16. The learned counsel for the applicant-respondent also placed reliance on Ram Naresh v. Lodhna Colliery Co.(7), wherein it was held that in considering the loss of earning capacity in the case of a “permanent partial disablement” the comparison between the wages drawn by the workman before and after the accident from his employer at the time of the accident is not a decisive factor what has to be found out is the reduction in earning capacity suffered by the workman in every employment which he was capable of undertaking at the time of the accident. This has necessarily to be a notional figure for which it is not possible for the workman to give precise factual evidence. In fact, this notional assesment of loss in earning capacity with regard to every possible employment's the task of the Judge who, in such cases, is the Commissioner for the Workmen's Compensation. In certain cases, of course, it may be possible to adduce some evidence on facts to help the assessment. But it is not possible that assessment of such a notional loos can always be made purely on the basis of factual evidence. It was further held that following principles may be kept in view while assessing loss in earning capacity—
1. Earning is not the same as earning capacity.
2. Rise in earning may be because of various factors and rise in wages is not, therefore, decisive proof that there is no loss of earning capacity.
3. Loss of physical capacity is not co-extensive with loss of earning capacity.
4. Loss of physical capacity or physical incapacity may be relevant in assessing to what extent there is loss of earning capacity form “every employ-men” which the workman was capable of undertaking at the time of the accident or re-employment in which he was engaged at that time.
17. It was further observed, “The fact that he is still holding his old post and getting his old wages is because his employer is giving it to him by way of grace. It would be a complete misunderstanding of the Workmen's Compensation Act to hold that in such circumstances, the workman will not be entitled to any compensation this was not certainly the intention of our judgment in AIR 1967 Cal. 7.
18. In the instant case, it has to be observed that there has been a permanent partial disability of the applicant. Neck has become stiff and is incapable of free movements. There is disability in the spinal cord also. The question is whether because of this disability the applicant has suffered any loss in the earning capacity. He is con inning in the same employment with all its benefit and normal increments. The learned counsel appearing on behalf of the state has strenuously argued that the applicant has suffered no loss in earning capacity, because even if no accident had taken place, or if no injury had been caused to the applicant, than too he would have drawn the same salary and would be entitled to the same benefits which he is at present availing of. On the other hand, the learned counsel for the applicant-respondent has contended that the name of the applicant is continuing in service is hardly of any consequence. Under the scheme of the Workmen's Compensation Act, the Court has to see whether as a result of the injuries received any permanent disability has been caused to the applicant causing loss in the earning capacity. It was also contended that if by an act of mere grace the applicant is continued in service it does not mean that be has not suffered any loss in the earning capacity and that because he is continuing in service he is not entitled to the compensation payable to him under the Workmen's Compensation Act.
19. Having given my most anxious consideration to this aspect of the case, I have no hesitation in holding that the loss in the earning capacity has to be calculated in terms of the permanent partial disability to which the applicant has been subjected to. In computing the loss in earning capacity the Court may take into consideration the medical evidence or such other evidence on the basis of which the Court can come to a conclusion. The view taken by their Lordships of the Calcutta High Court in Calcultta Port Commrs v. Prayag Ram (1) has not been adhered to in Ram Naresh v. Lodhna Colliery Co. (7). The theme in the Workmen's Compensation Act is to provide security to the workman who receives partial incapacity resulting in a loss in the earning capacity. The protection so afforded to the workman is independent of the acts of grace or mercy which the employer might show to him. In a welfare State like ours, the protection afforded to a disabled workman cannot be allowed to rest on the mercies and grace shown by the employer. If the employer does so, it is commendable, but the workman has still a stake for his employment which is guaranteed to him under the Workmen's Compensation Act. Under these circumstances, I am in respectful agreement with the view propounded in Ram Naresh v. Lodhna Colliery Co. (7)
20. In the instant case, the appellant has not led any oral evidence. The case was referred to a Medical Board with the full consent of the appellant. The appellant having acquiesced and agreed to abide by the result of the Medical Board, cannot, now, be permitted to turn round and say that the result arrived at by the Medical Board should not be adhered to. Apart from the Medical evidence of Dr. Bajaj and the Medical Board the evidence of Narain Lal is also on the record. The extent of loss in the workman's capacity has to be calculated by the Commissioner under the Workmen's Compensation Act having regard to all the facts. It would rather be extremely difficult for any workman to lead precise evidence as to what extent he has suffered loss in the earning capacity.
21. Looking to all the facts and circumstances of the case, I feel that no case has been made out for any interference in the award given by the Compensation Commissioner.
22. For the reasons stated above, there is no force in this appeal, which is hereby dismissed.
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