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George v. Thankan .
Court Opinion Summary — Subramonian Poti, J.
Factual and Procedural Background
The Workmen's Compensation Commissioner, Ernakulam awarded the respondent (a workman employed at Pullikanatn Estate, Peermade) compensation of Rs. 3,780 for permanent partial disablement (found to be 20%) resulting from an accident on 31-5-1977. While pruning tea bushes the respondent suffered injury to his left hand: one phalanx of the left index finger was cut off, and the middle and ring fingers were injured and alleged to be incapacitated. Compensation calculation used a monthly wage of Rs. 143.52 and 20% permanent partial disablement.
The appellant (the superintendent of the estate) appealed the Commissioner’s award. The written statement by the appellant admitted the loss of the phalanx of the index finger and injuries to the other fingers, and admitted that the respondent could no longer perform the work he was doing at the time; but it alleged that the appellant offered alternative employment at the same wages. The doctor who issued a medical certificate stating "20% permanent disability" was not examined. Counsel for the appellant appeared and argued the appeal; the respondent and his counsel did not appear.
Legal Issues Presented
- Whether the medical certificate stating a percentage of permanent disability, without examination of the doctor who issued it, can be treated as sufficient evidence to establish the extent of disablement.
- Whether an offer of alternate employment at the same wages by the employer is a sufficient answer to a claim of loss of earning capacity so as to negate entitlement to compensation.
- Whether the injuries suffered fall within Part II of Schedule I of the Workmen's Compensation Act and, if so, the correct statutory percentage(s) applicable for computing compensation; alternatively, if not in Schedule I, how to assess percentage by reference to loss of earning capacity.
Arguments of the Parties
Appellant's Arguments (as presented by counsel Mr. V. Rama Shenoy)
- In the absence of medical evidence in the form of the doctor’s statement on oath, the medical certificate would be of little or no evidentiary value.
- Because the employer offered alternate employment at the same wages, there was no loss of earning capacity and therefore the compensation award was unjustified.
Respondent's Position (as reflected in the record)
- The respondent relied on a medical certificate stating one phalanx of the left index finger had been cut off and that a total permanent disability of 20% under the Workmen's Compensation Act resulted from the accident.
- The petition averred that the middle and ring fingers had become incapacitated so that no work could be done with them; the respondent claimed compensation based on 20% permanent partial disablement.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| M.S.N Company v. Mohammed Kunju, A.I.R. 1956 T.C. 55 | Authority cited for the proposition that a medical certificate may require proof by the doctor’s sworn statement to be treated as evidence. | The court noted the decision was relied upon by counsel but stated it need not decide the point here because the court was not required to treat the doctor’s certificate as formal evidence. The nature of the injury was admitted in the pleadings, so examination of the doctor was unnecessary for proving the injuries. |
| Kali Das v. S.K. Mondal, A.I.R. 1957 Cal. 660 | Authority cited alongside M.S.N. Company for the proposition concerning the evidentiary value of medical certificates absent the doctor's sworn testimony. | The court observed the citation but did not examine or apply the authority to decide the case, for reasons similar to M.S.N. Company: the injuries were admitted in the written statement and the doctor need not be called to establish them. |
| King v. Port of London Authority, 1920 A.C. 1 | Supports the proposition that where there is no present incapacity but a reasonable probability of future incapacity, the court may suspend pronouncement and decide the question later when loss of earning capacity actually arises. | The court referenced this authority as supporting counsel’s contention about prospective loss of earning capacity, but found the point unnecessary for the present case. The court stated it was not called upon to decide whether such an approach is available under the Indian Workmen's Compensation Act because the present case concerned an alleged present loss of earning capacity rather than only a future possibility. |
Court's Reasoning and Analysis
The court proceeded by first noting uncontested facts and pleadings. The material facts about the injury (loss of one phalanx of the left index finger and injuries to the middle and ring fingers) were admitted in the appellant’s written statement; the doctor’s certificate corroborated those facts but the doctor was not examined. Given the admission in the pleadings, the court held that formal examination of the doctor was unnecessary to establish the nature of the injuries.
The court then analysed entitlement to compensation under the Workmen's Compensation Act, focusing on:
- Statutory definitions: Section 2(g) of the Act defines "partial disablement" differently for temporary and permanent disablement and states that injuries listed in Part II of Schedule I shall be deemed to result in permanent partial disablement.
- Assessment provisions: Section 4(c) (referred to in the opinion) governs compensation where there is permanent partial disablement. If an injury is specified in Part II of Schedule I, the compensation is the percentage specified there (relative to total permanent disablement). If not specified, the percentage depends on the proportionate loss of earning capacity.
- Application to the facts: Loss of a phalanx of the left index finger is item No. 29 in Part II of Schedule I and carries a 9% loss. The note to the Schedule treats complete and permanent loss of use of a member as equivalent to loss of that member. The petition averred that the middle and ring fingers were incapacitated for work; there was no categorical denial of this averment in the objection statement, so the pleading stood uncontroverted. Treating the middle and ring fingers as lost (by reason of the Schedule note) yields a 20% loss for those two fingers and an aggregate of 29% (9% for index phalanx + 20% for middle and ring fingers). The Commissioner had awarded only 20%.
- On the employer’s argument that offering alternate employment at the same wages defeats a claim of loss of earning capacity, the court examined Section 2(g) and the statutory concept of loss of earning capacity "in every employment which he was capable of undertaking at that time." The court explained that the test is whether the injured person would, despite the disability, "generally" obtain the same wages in employment appropriate to his qualifications and capacity. A unilateral offer by the employer to continue the same wages does not conclusively establish that the injured person's general earning capacity remains unaffected, because that offer might reflect the employer's special generosity and may not reflect the market generally or persist under future employers.
- Because the pleadings contained an uncontradicted averment of loss of use of the middle and ring fingers and because the employer's response was an offer of alternative employment rather than a pleading that earning capacity was not affected, the court concluded the workman was entitled to compensation in accordance with the Schedule analysis.
The court therefore found that the Commissioner’s award (which had fixed permanent partial disablement at 20%) was not adequate in the face of uncontroverted pleadings pointing to a higher percentage under Schedule I, and rejected the employer’s argument that mere offer of alternative employment at the same wages was a defense to the compensation claim.
Holding and Implications
Holding: The appeal is DISMISSED. The parties are directed to bear their respective costs.
Implications: The direct effect is that the Commissioner’s award in favour of the respondent stands and the appeal by the employer fails. The court emphasised that:
- Where injuries specified in Schedule I are established (or admitted), the scheduled percentages govern compensation calculations; admission in pleadings may obviate the need to call the treating doctor to prove the existence and nature of the injury.
- An employer's unilateral offer of alternative employment at the same wages does not automatically negate a claim for loss of earning capacity under Section 2(g); the statutory test is whether the injured person's earning capacity has been reduced "in every employment" he was capable of undertaking, i.e., whether he would generally obtain the same wages despite the disability.
The opinion does not state that it sets a new legal precedent beyond applying statutory provisions and established principles to the admitted facts; its effect is to affirm the compensation award in the circumstances of this record.
Subramonian Poti, J.:— Despite the non-appearance of respondent and counsel in this case we had occasion to hear both sides of the case as counsel Mr. V. Rama Shenoy appearing for the appellant fairly placed all aspects of the case before us in this appeal. The Workmen's Compensation Commissioner, Ernakulam has awarded the respondent compensation of a sum of Rs. 3,780/- for partial disablement suffered by him as a result of an injury caused in the course of his employment. The appellant is the superintendent of Pullikanatn Estate at Peermade and the respondent was a workman in that estate. On 31-5-1977 while the respondent was pruning the tea bushes an injury was caused to his left index finger. One phalanx of the left index finger was cut off. Injuries were sustained by the middle and ring fingers by which, according to the respondent, these fingers were incapacitated so that no work could be done with the use of these fingers. Based on the monthly wages at Rs. 143.52, 20% for permanent partial disablement was claimed. That was allowed and consequently a sum of Rs. 3,780/- was awarded as compensation. That is the subject of this appeal.
2. There is the medical certificate issued by the doctor, who treated the respondent workman. That showed that one phalanx of the left index finger had been cut off and there were injuries to the other two fingers. Further the certificate mentioned that a total permanent disability of 20% according to the Workmen's Compensation Act had resulted from the accident. The doctor who issued the certificate was not examined. It may be noticed that there was no dispute as to the nature of the injury suffered by the respondent. The written statement filed by the appellant categorically admitted the loss of the phalanx of the index finger and the injuries to the other fingers. It further categorically admitted that because of such injury the workman would not be able to carry on the work which he was attending to at that time. But alternative work was offered to the workman. Whether this is sufficient answer is one of the questions that we will have to consider.
3. Learned counsel Sri. Rama Shenoy mainly stressed two points. First, without medical evidence in the form of a statement of the doctor on oath the certificate would be of no use. The second point is evidently that the employer having offered alternate employment on the same wages, loss of earning capacity cannot be found in this case and if so the award of compensation would be unjustified.
4. It is true that if the medical certificate is necessary to be proved in this case the examination of the doctor, who issued the certificate, would be necessary. The counsel referred to the decision of the Travancore-Cochin High Court in M.S.N Company v. Mohammed Kunju . A.I.R 1956 T.C 55. and that of the Calcutta High Court in Kali Das v. S.K Mondal . A.I.R 1957 Cal. 660.. We need not go into this question for we are not called upon in this case to treat the certificate of the doctor as evidence. The doctor would be competent to speak to the injury and the consequence of the injury. He would be competent to say how far the person who had suffered the injury, has been immobilised by the said injury. But what is the extent to which the injured has lost his earning capacity must primarily be a matter for other evidence. In this case the evidence of the doctor is not necessary to establish the injuries. The nature of the injury suffered by the respondent is admitted in the written statement. There is no controversy. There is no controversy even as to the fact that such injury had resulted in the disablement of the workman so much so he could no longer attend to the work he was used to do. There is no averment in the objection statement in categorical terms that the workman's earning capacity was not affected. We are saying this because this assumes considerable relevance on the facts of this case. Whether an offer of other employment at the same wages would be sufficient answer in the absence of a plea that earning capacity has not been affected is a question which will have to be considered in the light of the arguments advanced before us by counsel Sri. Rama Shenoy.
5. Reference was made to a case in King v. Port of London Authority . 1920 A.C 1. in support of the contention of the learned counsel that where there is no present incapacity but there is reasonable probability of future incapacity the proper course for a court to adopt would be the suspension of the pronouncement on the question so as to leave it to be adjudicated on a later occasion when loss of earning capacity actually arises. Whether within the frame work of the Workmen's Compensation Act in force in India such a decision would be possible is a matter of some interest. But the examination of that may not be called for in this case, for, the question is not whether there is a likelihood of loss of earning capacity at present or later but whether there is loss of earning capacity. The plea is that there is. The claim for compensation is on that account. In answer there is an offer to employ the person concerned on the same wages as if it would be an answer to the plea of loss of earning capacity.
6. Section 2(g) of the Workmen's Compensation Act, 1923 defines “Partial disablement” thus:
“‘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 reduce 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.”
7. Section 3 provides that if personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of Chapter II. Section 4 provides for determining the amount of compensation. We are concerned in this case with section 4(c) which deals with a case of permanent partial disablement resulting from the injury. If the injury is one specified in Part 2 of Schedule I of the Act such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as the percentage of loss of earning capacity caused by the injury could be recovered as compensation. If the injury is one not specified in Schedule I it would be 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. Therefore, the first question would be whether an injury is one which falls within Part II of Schedule I or not. If this falls within it irrespective of any question whether there is loss of earning capacity the compensation is to be determined in accordance therewith, where it does not fall within Schedule I the proportion will depend upon loss of earning capacity caused by the injury.
8. In this case the loss of the phalanx of the left index finger falls within Schedule I Part II. It is item No. 29 and the percentage of loss is 9. The other two fingers if they have become completely useless for work must be treated as lost in view of the note to the schedule which reads:
“Complete and permanent loss of the use of any limb or member referred to in this Schedule shall be deemed to be the equivalent of the loss of that limb or member.”
9. In the petition it is categorically averred that the middle and ring finger which were cut had consequently become incapacitated to do any work. There is no categorical reply to this and if that be so the pleading remains uncontroverted. This may be sufficient to treat the plea as one of loss of use of the fingers which by reason of the note is equivalent to the loss of the fingers. The loss of two such fingers would attract loss of earning capacity at 20% and the aggregate would thus be 29%. Only 20% has been found by the order under appeal. This will be sufficient to answer the appellant's case. Even otherwise when the plea of loss of earning capacity has not been denied categorically in the objection statement and the only answer is one of offer of alternative employment, the workman will be entitled to compensation. Section 2(g) refers to the reduction in the earning capacity in other employment which the injured workman is incapable of undertaking at the time and not merely the loss of earning capacity in the employment in which he was at the time he suffered the injury. Therefore it is not sufficient to say that in the particular employment in which he was at the time he suffered the injury he would earn lesser wages, but in any other employment in which he is capable of engaging himself his earning capacity would be reduced. That means that if the person is to offer himself for work of a kind which his qualification and capacity would justify whether he would get the same wages is the matter to be considered. The respondent herein can engage himself in manual unskilled work. There is no case that he is literate so that he can engage in occupations other than those requiring only manual work. The question is whether as a manual labourer if he offers himself for work he would get the same wages as others are generally offered. The answer by the employer is that he would get the same wages generally but then he has offered the same wages. The appellant may perhaps out of his good sense offer this, but that will not answer the question whether there would generally be such an offer for him. May be the appellant may change his mind or his successors in office may not show a similar attitude. In other words the question is not whether the injured person is offered a job at the same wages by the employer but whether despite the disability he has suffered he would generally get same wages. If that be the situation the mere offer by the employer will not be the answer. On the pleadings no other aspect of the question would arise.
10. In the circumstances we dismiss the appeal. We direct the parties to suffer their respective costs.
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