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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • S.K.Saha
  • Mahadeb Ghosh
Judges
  • Sankar Prasad Mitra, C.J
  • Salil Kumar Datta, J.
Acts
  • Schedule I, Section 4 sub-s. (i), clause (a)
  • Workman's Compensation Act, 1923
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Cites
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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • S.K.Saha
  • Mahadeb Ghosh
Judges
  • Sankar Prasad Mitra, C.J
  • Salil Kumar Datta, J.
Acts
  • Schedule I, Section 4 sub-s. (i), clause (a)
  • Workman's Compensation Act, 1923
See more information ...
Smart Summary

Case Summary — Appeal from Commissioner of Workman's Compensation (West Bengal)

Factual and Procedural Background

This is an appeal from an award of the Commissioner of Workman's Compensation (West Bengal) which held that the workman sustained loss of earning capacity to the extent of 6%. The accident occurred on July 29, 1970, when rolls of carpet fell on the workman, injuring both legs and feet. The employer (appellant) contended that the workman was only temporarily disabled, had been duly paid for that temporary disability, and suffered no permanent partial disability or loss of earning capacity.

During the original proceedings the workman testified that he was treated for one month, continued to feel pain in both legs and the right foot, and admitted he was receiving Rs. 300 per month, which he continued to receive from the appellant. The workman's medical report described swelling, tenderness and stiffness in multiple parts of both legs and feet, a limping gait and difficulty in squatting; the doctor “assessed the disability at ???” (as recorded in the opinion). The employer's doctor opined there were no marks of injury and no disability.

The Commissioner examined the conflicting medical evidence, noted that the workman belonged to the wage group of Rs. 200–300, considered Ext. B (the accident report of the Calcutta Dock Labour Board confirming the injury to both legs), examined the injured legs and feet, and awarded compensation for 6% loss of earning capacity. The employer appealed. The Division Bench (Salil Kumar Datta, J., and Sankar Prasad Mitra, C.J.) dismissed the appeal with costs and vacated all interim orders, thereby upholding the Commissioner's award.

Legal Issues Presented

  1. Whether the workman suffered a permanent partial disablement amounting to loss of earning capacity as a result of the accident.
  2. What method or criteria should be applied to assess loss of earning capacity where the injury is not specified in Schedule I of the Workman's Compensation Act, 1923.
  3. Whether the fact that a workman continues to earn the same wages post-accident (or remains in the same employment) precludes a finding of loss of earning capacity.

Arguments of the Parties

Appellant's (Employer's) Arguments

  • The employer's case was that the workman suffered only temporary disability and had been paid for that temporary disablement; there was no permanent partial disability and therefore no loss of earning capacity.
  • Mr. Mahadev Ghosh, learned advocate for the appellant, contended (relying on authorities) that there was no evidence to support any loss of earning capacity and that mere physical injury does not automatically imply loss of earning capacity, particularly where the workman continued to earn the same wages after the accident.

Respondent's (Workman's) Position

  • The workman testified to continued pain after one month of treatment and to ongoing difficulty (limping gait, painful and incomplete squatting) consistent with the findings of his medical examiner.
  • The workman's medical report detailed swelling, tenderness, stiffness and painful ankle and knee joints in both legs and feet; the doctor recorded functional difficulties and assessed disability at "???" in the record (the opinion reproduces this as shown in the source).
  • Ext. B (the accident report of the Calcutta Dock Labour Board) recorded that the workman was hurt on both legs by rolls of carpet while working, supporting the occurrence and nature of the accident.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Agent, East Indian Railway v. Maurice Cecil Ryan, AIR 1937 Cal. 526 The estimate for compensation (where Schedule I does not specify the injury) must be of the loss of the workman's earning capacity and not merely loss of physical capacity. The court cited this authority to support the proposition that assessment focuses on loss of earning capacity rather than solely physical impairment.
Kali Das Ghosal v. S.K. Mondal, AIR 1957 Cal. 660 Medical opinion relates to the physical aspect of injury but is not decisive on loss of earning capacity; loss of earning capacity must be determined by how diminution of physical capacity disables the workman from performing duties of a workman like him. The court relied on this to emphasise that medical evidence supplies material on physical impairment but the Commissioner must assess consequences for earning capacity.
Commissioners for the Port of Calcutta v. Prayag Ram, AIR 1967 Cal. 7 Affirmation of the view that medical opinion is not decisive on loss of earning capacity; medical evidence is only part of the material for assessing earning capacity. Used to corroborate the established approach that loss of earning capacity must be assessed beyond medical findings alone.
P.K. Davis & Co. v. Kesto Routh, AIR 1968 Cal. 129 Similar principle: medical evidence establishes physical disability but not directly loss of earning capacity; provides basis for assessment. Referred to as part of consistent jurisprudence guiding assessment of unspecified injuries.
Calcutta Electric Supply Corporation Ltd. v. Habul Chandra Das, AIR 1968 Cal. 287 Reiterates that medical evidence is relevant to physical impairment but does not by itself determine loss of earning capacity. Used to support the pattern of authority in treating medical evidence as necessary but not conclusive for earning-capacity assessment.
Calcutta Licensed Measurers v. Md. Hossain, AIR 1969 Cal. 378 Sets out propositions: (i) earning is not the same as earning capacity; (ii) rise in earning is not decisive of no loss of earning capacity; (iii) loss of physical capacity is not co-extensive with loss of earning capacity; (iv) physical incapacity is relevant to assessing loss of earning capacity for employment the workman could undertake. The court relied on these propositions as established law to guide the Commissioner's assessment and to reject the argument that unchanged earnings negate loss of earning capacity.
Commissioners for the Port of Calcutta v. Ajit Kumar Ghosh, 76 CWN 639 Affirmation that the principles distinguishing medical evidence of physical injury from assessment of earning capacity should be followed. Referenced to show continuity of authority applying the same approach to assessment.
Bengal Coal Company v. Shahed Miah, 81 CWN 681 Reiterates that medical experts can establish injuries and physical disability but cannot alone prove loss of earning capacity; medical evidence provides basic material for assessment. Used to support the proposition that the Commissioner should use medical evidence as a basis but decide earning-capacity consequences judicially.
Moeliker v. A. Reyrolle & Co. Ltd., (1977) I All E.R. 9 Where a workman continues in employment, the court should consider if there is a 'substantial' or 'real' risk that the workman will lose his job before the end of working life and be thrown on the labour market; the court must assess and quantify such risk. The court invoked this English authority to explain that continued earnings do not automatically negate prospect-based assessments of future risk and loss; it informs the method for quantifying loss of earning capacity.

Court's Reasoning and Analysis

The court proceeded by examining the factual record and applying established legal principles governing assessment of loss of earning capacity under the Workman's Compensation Act, 1923. The analysis unfolded in these steps:

  1. Fact-finding: The Commissioner considered the accident report (Ext. B) confirming the accident and injuries to both legs, the testimony of the workman, and the conflicting medical reports (workman's doctor describing multiple areas of swelling, tenderness, joint stiffness, limping gait and difficulty in squatting; employer's doctor finding no marks of injury or disability).
  2. Wage classification: The Commissioner noted the workman belonged to the Rs. 200–300 wage group, relevant to computing compensation under Section 4 of the Act.
  3. Legal framework: The court reviewed Section 4 (1) of the Workman's Compensation Act and the distinction between injuries specified in Schedule I and unspecified injuries (clause (c)(ii)), stressing that in the latter case compensation is proportionate to the permanent loss of earning capacity.
  4. Precedent-based approach: The court summarised and applied consistent Calcutta authorities holding that medical opinion establishes physical impairment but is not conclusive on earning capacity; instead, the Commissioner must evaluate how diminution of physical capacity affects the workman's ability to perform duties and earn remuneration typical of his class.
  5. Employment prospects and risk: Drawing on Moeliker, the court acknowledged that continued receipt of wages does not necessarily preclude compensation; the Commissioner must consider whether there is a substantial risk the workman will lose his job or face reduced prospects in the open labour market and quantify that risk.
  6. Application to the record: The court found the Commissioner had followed the indicated procedure—considering both medical reports, the accident report, examining the injured parts, and making a judicial assessment of the workman's earning-capacity loss. On that basis the Commissioner awarded 6% loss of earning capacity for the unspecified injury.

The opinion notes that medical evidence may be necessary to assess physical capacity, but the ultimate determination of loss of earning capacity is a judicial evaluation that combines medical findings with employment prospects and other relevant factors.

Holding and Implications

HOLDING: The appeal is DISMISSED WITH COSTS; the Commissioner's award of 6% loss of earning capacity is upheld and all interim orders are vacated.

Implications:

  • Direct effect on the parties: The workman's award for 6% loss of earning capacity stands; the employer's appeal is unsuccessful and must bear costs. Interim orders previously in place are vacated.
  • Legal implications: The court applied existing and established principles (as set out in several Calcutta decisions and the Workman's Compensation Act, 1923) regarding assessment of loss of earning capacity for injuries not specified in Schedule I. The decision follows and reaffirms those precedents rather than establishing new legal doctrine.

This summary is prepared strictly on the basis of the text of the provided opinion and does not add information beyond what is contained therein.

Show full summary ...

    Sarat Chatterjee & Co. (P) Ltd. v. Md. Khalil

    Salil Kumar Datta, J.:—This is an appeal from the award of the Commissioner of Workman's Compensation West Bengal, holding that the workman had sustained loss of earning capacity to the extent of 6%. The accident happened on July 29, 1970 and both of his legs and feet were injured on account of the fall of rolls of carpet on him while on duty. The employer appellant's case was that the workman was temporarily disabled for which he was duly paid and no permanent partial disability was suffered so that there was no loss of earning capacity.

    2. During trial the workman stated that he was treated for one month for the injury and still felt pain on both legs and right foot. He claimed that he was receiving of Rs. 300/- p.m and admitted that he was still receiving the same rate under the appellant. His doctor found swelling and tenderness of the articular margins of the conforms and bases of 1st, 2nd 3rd metatorsals of right foot with stiff and painful joints and pain and pressure on each foot. He also found swelling and tenderness of the shin and the articular margins of the lower and right tibia with stiff and painful ankle joints as also of the articular margins of the condyles of left tibia with stiff and painful ankle joints. He further found induration and tenderness of the left calf with stiffness of left knee joint and also noted that the gait was limping, while squatting was difficult, painful and incomplete. He assessed the disability at ???. The doctor of the employer on the other hand found that there was no mark of injury on both legs nor any disability of soft or bony tissue in both legs and feet. According to his opinion the workman did not suffer from any disability.

    3. The learned Commissioner found that the workman was in the wage group of Rs. 200/- — Rs. 300/-. He considered the conflicting medical reports which is unfortunately an usual feature in such proceedings, and also considered Ext. B which is the accident report of the Calcutta Dock Labour Board. It recorded that the workman got hurt on both legs by rolls of carpet while working. He also examined the injured legs and feet and considering the evidence, he held that the workman sustained loss of earning capacity to the extent of 6% and the award was made accordingly.

    4. In this appeal Mr. Mahadev Ghosh learned advocate for the appellant has contended on authorities that there was no evidence to support any case of loss of earning capacity and mere physical injury does not automatically mean or imply loss of earning capacity particularly when the workman even after the accident was earning the same wages.

    5. The problem of assessment of loss of earning capacity has always been a controversial question and it is difficult to arrive at a mathematical precision particularly when the injury is one not specified in the Schedule I, Section 4 sub-s. (i), clause (a) provides for the amount of compensation when death results ??? the injury, clause (b) for permanent total disablement from the injury, while clause (c) is concerned with permanent partial disablement. Clauses (a), (b) and (c) are as follows:—

    Section 4 — (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:—

    (a) Where death results from the injury and the deceased workman has been in receipt of monthly wages falling within limits shown in the first column of Schedule IV—the amount shown against such limits in the second column thereof;

    (b) Where permanent total disablement results from the injury and the injured workman has been in receipt of monthly wages falling within limits shown in the first column of Schedule IV—the amount shown against such limits in the third column thereof;

    (c) Where permanent partial disablement results from the injury—

    (i) in the case of an injury specified in (Part II of Schedule I), such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury, and

    (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 permanently caused by the injury;

    EXPLANATION:— Where more injuries than one are caused by the same accident, the amount of compensation payable under this head shall be aggregated but not so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries; …………

    6. There have been consistent and uniform decisions of the Courts that in case where clause (c)(ii) applies, the estimate is to be made of the loss of the workman's earning capacity and not loss of his physical capacity as was held in Agent, East Indian Railway…Applt.; v. Maurice Cecil Ryan…., AIR 1937 Cal. 526. In Kali Das Ghosal… v. S.K Mondal…. AIR 1957 Cal. 660 the Court speaking through Chakravartti, C.J pointed out that medical opinion is only in regard to the physical aspect of the injury but not in respect of loss of earning capacity, as this is a matter on which medical opinion can possibly speak. The loss of earning capacity is to be determined by the extent to which the destruction or dimunition of physical capacity can be reasonably taken to have disabled the workman performing the duties of a workman like him and from earning his normal remuneration earned for such duties. The medical opinion is thus not a decisive factor on the question of earning. The same view was taken in later decisions in Commissioners for the Port of Calcutta v. Prayag Ram, AIR 1967 Cal. 7 and in P.K Davis & Co. v. Kesto Routh, AIR 1968 Cal. 129 and Calcutta Electric Supply Corporation Ltd. v. Habul Chandra Das AIR 1968 Cal. 287.

    7. In Calcutta Licensed Measurers v. Md. Hossain, AIR 1969 Cal. 378, the Court laid down as established the following propositions: (i) earning is not the same as earning capacity, (ii) the rise in earning may be because of various factors and rise in wages is not decisive of no loss of earning capacity; (iii) loss of physical capacity is not co-extensive with loss of earning capacity and (iv) loss of physical capacity or physical incapacity may be relevant in assessing to what extent there is loss of earning capacity for every employment which the workman was capable of undertaking at that time or the employment in which he was engaged at the time of the accident as the case falls for consideration. The Court referred to with approval the dicta in Kali Das's case (supra) that the medical evidence may be necessary to find out loss of physical capacity but as to loss of earning capacity it is but an opinion evidence. The loss of earning capacity is to be determined by taking into account firstly the diminution or destruction of physical capacity as disclosed by the medical evidence and thereafter its effect about the extent it has disabled the workman from performing the duties which a workman of his class ordinarily performs with reference to the time of the accident.

    8. These principles were followed again in Commissioners for the Port of Calcutta v. Ajit Kumar Ghosh, 76 CWN 639. In Bengal Coal Company v. Shahed Miah, 81 CWN 681 it was again reiterated that while a medical expert's evidence can establish the injuries suffered by the workman and extent of his physical disability but such evidence can not prove his loss of earning capacity. All the same the medical evidence may provide basic materials for assessing the loss of earning capacity of a workman and each case depends on its own facts.

    9. It has often been contended, as also before us, that there had been in fact no loss of earning capacity since the workman was in the same or even better job under the same employer, earning the same or higher amount. This contention though attractive appears to offer no true or correct guidance. The question was considered by the Court of Appeal in Moeliker v. A. Reyrolle & Co. Ltd., (1977) I All E.R page 9 where it has been laid down that the court will have to decide first if there is a ‘substantial’ or ‘real’ risk that the workman will lose his present job at some time before the end of his working life and be thrown on the labour market more than once (for example if he takes a job and then finds he cannot manage it because of his disabilities). The next stage is for the court to assess this risk and quantify it in damages.

    10. The case for compensation will thus require in addition a consideration of the chances of the workman's obtaining in the open labour market a suitable job like the one he was engaged at the time of accident, which under a private employer is obviously terminable, and also of the possible reduction of his earning capacity in every employment which he was capable of undertaking at that time. Unlike the general law, the Workman's Compensation Act, 1923 provides in its Schedule I for specified injuries a percentage of compensation which is payable for permanent total disablement as also specified therein. Where the injury suffered causes permanent partial disablement but is not onespecified in the Schedule I, such percentage of compensation which is payable in case of permanent total disablement, as is proportionate to the loss of earning capacity permanently caused by the injury, becomes payable to the workman.

    11. In case of such unspecified injury resulting in permanent partial disablement, it is not normally possible for a workman to establish his loss of earning capacity by his prospects or the offers to him on the open labour market, since he may be in his old or other employment. In such circumstances all that the Commissioner has to do in discharge of his judicial functions is to assess the loss of the earning capacity of the workman in the light of the medical report as also on the basis of his own estimate of the workman's possibilities of employment in the open labour market and similar other relevant factors at such percentage of the amount payable for permanent total disablement as may be deemed fair and reasonable in the facts of each case.

    12. In the case before us, we are satisfied that the learned Commissioner has adopted the procedure and method as indicated above, and his assessment of the unspecified injury at six percent of loss of the earning capacity is fully justified.

    13. The appeal accordingly fails and is dismissed with costs and all interim orders are vacated.

    Sankar Prasad Mitra, C.J:—I agree.

    Appeal dismissed.

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    Comments

    Sarat Chatterjee & Co. (P) Ltd. v. Md. Khalil
    (Dec 18, 1978)