Judgement This is an appeal by Sewa Singh whose claim for compensation under Section 4 of the Workmens Compensation Act has been dismissed by Mr. J.S. Chatha, as Commissioner.
2. Sewa Singh appellant was working as a fitter with the respondent Company - The Indian Hume Pipe Company Ltd., of Rajpura. He sustained a fracture on his right leg as a result of an accident on 1-7-1959. He was hospitalized for a period of 5 months from where he was discharged on the 1st of December, 1959. Thereafter the appellant has been continuously employed with the respondent-company.
3. The claim of the petitioner is founded on clause (c) of Sub-Section (1) of Section 4 of the Workmens Compensation Act 1923 which provides that compensation would be payable where permanent partial disablement results From the injury - "(i) in the case of an injury specified in Schedule 1 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 1, 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;" It has been rightly conceded by the counsel for the appellant that sub-clause (i) of clause (c) is not applicable as the injury sustained by the appellant is not mentioned anywhere in Schedule 1. What the counsel has relied on is the provision in sub-clause (ii) that the compensation would be payable in case of "permanent total disablement." It is, however, significant to note that the compensation payable for such disablement is related to the "loss of earning capacity" as it is to be proportionate to such a loss in earning capacity. The learned counsel has invited my attention to the testimony of Dr. Puspha Devi of Ajit Parshad Jain Hospital Rajpura who examined Sewa Singh on the 19th December, 1960, after he had been discharged from there. According to the doctor, Sewa Singh had got "right leg deformity, restricted movements of the knee joint, which affects on his gait and do for having work 50 per cent" She further testified that the injury sustained by the appellant was "permanent."
4. Before the Commissioner there was some dispute about the wages which the appellant received at the time of accident. He himself claimed that he was receiving a sum of Rs. 80/- P M. The Commissioner has accepted the evidence of the respondent-company that the wages amount to Rs. 75.79 nP. This finding is now accepted by the appellant.
5. The learned judge further held that the appellant had not been able to make good his case for compensation under Section 4(1)(c)(ii) of the Workmens Compensation Act in my opinion the conclusion reached by the Commissioner is correct. It is not denied that the appellant right from the time when he was discharged from the hospital on 1st December, 1959, had been receiving his full wages as well as the increments which had accrued since then. The Commissioner in assessing compensation under sub-clause (ii) of clause (c) of Sub-Section (1) of Section 4 has to take into account the loss of earning capacity as a result of permanent total disablement and indeed the compensation has to be made proportionate to the loss of earning capacity. The question is naturally to be asked by the Tribunal whether the appellant has actually suffered a loss of earning capacity. In the present instance the responded company had been paying the full wages to the appellant who is doing the same work which he was doing before the accident. Assuming in favour of the appellant that there has been permanent total disablement, no loss of earning capacity has been established Miss Surjit Kaur for the appellant suggested that the respondent-company had been paying him full wages in order to avoid its liability of payment of compensation under the Workmens Compensation Act. It is not possible to accede to this contention. It has to be borne in mind that the appellant has received his wages for about 4 years now and the compensation if it is allowed in full under the relevant provisions of the. workmens compensation act would be less than half the amount which he has received as wages since 1st of December, 1959. The counsel for the respondent has stated at the bar that the appellant had been employed because of his capacity to maintain his work as a fitter in which capacity he was working before the accident and further that he would continue to be employed as such irrespective of the decision in this appeal provided, of course, he does not misconduct himself as a worker. In my opinion there is no force in this appeal which fails and is dismissed. I would, however, like to add that should the appellant be discharged by his present employer and is compelled to seek employment elsewhere at a reduced wage he would be entitled to prefer his claim once again under sub-clause (ii) of clause (c) of Sub-Section (1) of Section 4. In the view which I take the compensation payable as a result of permanent total disablement has to be related to a loss of earning capacity and there being no loss of earning capacity at present the claim does not fall under this provision. There will be no order as to costs. Appeal dismissed.
Comments