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First Appeal from Order No. 129 of 1967, decided on 12th April 1968.

Ss. 2(1)(1) & 3‑‑Compensation‑Workman having failed to show that there had been complete loss of earning capacity‑His case otherwise not covered by proviso to S. 2(1) (1)‑Compensation awarded by Commissioner at 60% as permanent partial disablement on basis of medical report, in circumstances, held, calls for no interference.

Agent, East Indian Railway v. Maurice Cecil Ryan A I R 1937 Cal. 526; Muslim Cotton Mills v. Din Islam P L D 1959 Dacca 599 and General Manager of the G. I. P. Rly., Bombay v. Shankar A I R 1950 Nag. 201 ref.

All‑India Construction Co. Ltd. v. Munshi Ram A I R 1931 Lah. 319 rel.

Ali Hazoor Najafi for Appellant.

S. M. Bashir, Addl. A.‑G. for Respondent.

Date of hearing: 12th April 1968.

Khawaja Zahoor‑ud‑Din appellant was employed as an electric precision meter repairer in the Power‑house Workshop, Mughalpura, of the respondent Railway, when he met with an accident on the 24th of September 1965, in which accident he sustained the following injuries :‑

"(a) Three fingers of the right hand were completely cut off:

(b) Palm of the right hand was also partially lost.

(c) Index finger and thumb of the right hand were perma nently disabled."

It is stated that the Divisional Medical Officer assessed the loss of earning capacity at 100% on account of permanent partial disablement of the loss of right hand. Whereafter the appellant was declared invalid for service in the electric Workshop of the respondent and was retired with effect from the 24th of March 1966. The appellant moved an application under section 3 of the Workmen's Compensation Act of 1923 (hereinafter called the Act) for award of 100% compensation as recommended by the Divisional Medical Officer of the respondent, his case being that of permanent total disablement. The application was resisted by the respondent and ultimately on the 14th of February 1967, when an offer was made to the appellant to get him examined by the Medical Superintendent, West Pakistan Government, or their Board, the cost of which examination was to be borne by the respondent, the appellant agreed to get himself re‑examined and he was thereafter referred to the Medical Superintendent, Services Hospital, and a consent order was passed in this regard on the 2nd of March 1967. The Medical Superintendent of the Services Hospital communi cated the result of his examination of the appellant by his letter dated the 12th of April 1967, wherein he stated that he had examined the appellant on the 12th of April 1967 and that the appellant bas loss of 3 fingers below the matacarpo to phalyngeal joint and cannot use the right hand, and that the permanent loss is 60 %'. On receipt of this report, the respondent agreed to deposit compensation calculated at 60% disability and the same amount, on deposit, was paid to the appellant.

2. Feeling aggrieved by this assessment of compensation at 60 % as permanent partial disablement and not permanent total disablement, the appellant has come up to this Court. Learned counsel contends that in view of the definition of the two types of disablements, namely, partial disablement and total disablement, whether temporary or permanent, given in clauses (1)(g) and (1)(l) of section 2 of the Act, because the appellant has been incapacitated for all work which he capable to perform at the time of accident resulting in his disablement, it was a case of permanent total disablement and not permanent partial disablement. In support of his conten tion be has referred to the various documents placed on the record which are a part of correspondence that has passed between the various officers of the respondent Railway with regard to employment of the appellant in some other capacity if not as P. M. R. Mistri. He has attempted to argue that because employment in any other capacity with the Railway has been refused to the appellant and he has been thrown out of job, he has been rendered incapacitated for all work which he was capable of doing at the time of accident. He tried to draw support from an authority of the Calcutta High Court reported as Agent, East Indian Railway v. Maurice Cecil Rayn (A I R 1937 Cal. 526), wherein their Lordships while con sidering the case of an employee of the Railway Company finding that the Railway Company, who employed the workman, had discharged him on the ground that be was physically unfit and permanently incapacitated for further service on account of disability, held that the employee was entitled to compensation for permanent total disablement and not permanent partial disablement. The reason given is:

"What has to be estimated is the loss of earning capacity caused by the injury. That is a different thing from the loss of physical capacity. It is the loss of earning capacity. As a surgeon, Mr. Banerjee might well estimate the loss of physical capacity for work, but the loss of earning capacity must be estimated by some other person. The best estimate that can be given is by those people who would have the opportunity of seeing the workman work before and after the accident. . . . . .Earning capacity is capacity to earn money. Here the Railway Company employed this man before the accident. His earnings were Rs. 125 a month plus Rs. 37 for allowances. That was the money which he had earned before the accident. After the accident he was classified as fit only for C.2 work. He began work as a clerk on Rs. 90 a month the 4th of October and continued in that work for some days but gave it up because he stated that he was unable to do it. On the 24th of October the District Medical officer thought that he was unfit for work in any class and on the 30th of October the Railway Company discharged him . . . ... .. . That was the estimate that his own employers were in a position to make, and did make, of his loss of earning capacity. It may be, and probably is, true that he has some residuum of earning capacity which as the learned Commissioner says, in a special post, he would be able to employ but that must necessarily be small."

He has also invited my attention to Muslim Cotton Mills v. Din Islam (P L D 1959 Dacca 599). In that decision the learned Judges of the Dacca High Court, while discussing the question of permanent partial disablement and permanent total disablement observed:

"It will be seen at once from the definition of partial disablement as quoted above that when the earning capacity of the workman in every employment which he was capable of undertaking at the time of the accident is reduced, it will be partial disablement, and if such disablement is of a permanent nature it will be permanent partial disablement. The proviso to the section only says that the injuries specified in Schedule I to the Act shall be deemed to result in permanent partial dis ablement irrespective of the fact whether the earning capacity has been reduced or not. It will again be seen from the definitions of total disablement as quoted above that when the disablement is such as incapacitates the workman for all work which he was capable of performing at the time of the accident it is a case of total disablement and, if such disablement is of a permanent nature, it will be permanent total disablement. The proviso only lays down that in cases of injuries enumerated in the proviso they will be deemed to be cases of permanent total disablement irrespective of the fact whether the workman has or has not been incapacitated for all work which he was capable of performing at the time of the accident. Mr. Khondker's argument that only the injuries spoken of in the proviso in section 2(l)(l) of the Act will be permanent total disable. ment overlooks, in our opinion, the main provision in the definition section. In our opinion, in every case of accident to a workman brought before the Commissioner he has to come to a finding whether the workman has been incapacitated for all work which he was capable of performing at the time of the accident or whether only the earning capacity of the workman in every employment which he was capable of undertaking at the time of the accident has been reduced. The former will be a case of total disablement, and the latter of partial disablement. The provisos in the two definitions which are quoted above only relieves the Commissioner of the duty of investigating facts in certain cases. If the Court finds on evidence that the workman has been incapacitated for all work which he was capable of performing at the time of the accident resulting in such disablement, in our opinion, it is a clear case of total disablement, and if it is of a permanent nature the workman will be entitled to compensation under section 4(1) clause (b) . . . . . . . . ."

Reliance has also been placed on a decision of the parallel Indian jurisdiction reported as General Manager of the G. I. P. Rly. Bombay v. Shankar (A I R 1950 Nag. 201).

3. Learned counsel for the respondent has met this argument by referring to a decision of the Lahore High Court: All‑India Construction Co. Ltd. v. Munshi Ram (A I R 1931 Lah. 319). The learned Judge while dealing with the case of a crane driver, who had met with an accident and lost 2/3rd of index and middle fingers of his right hand and the whole of the third and fourth fingers of the same hand, his thumb and hand remaining intact, held that the employee was not entitled to any compensation by virtue of section 3(l)(c) reproduced below, as it stood at the relevant time :‑----

"3. (1) If personal injury is caused to a workman 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 this chapter.

Provided that the employer shall not be so liable‑

(a) .

(b) .

(c) except in the case of death or permanent total disable ment, in respect of any workman employed in the construction, repair or demolition of a building or bridge."

The question of total disablement as defined in section 2(1)()l of the Act was considered in the judgment and it saw observed:

"Total disablement is defined in section 2(1)(l) of the Act and means such disablement, whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement provided that permanent total disablement shall be deemed to result from she permanent total loss of the sight of both eyes or from any combination of injuries specified in Schedule 1 where the aggregate percentage of the loss of earning capacity, as specified in that Schedule against those injuries, amounting to 100 per cent. In Schedule 1 the loss of an index finger is put down at 10 per cent. of loss of earning capacity and loss of any other finger at 5 per cent. Calculated according to Schedule I therefore the percentage of loss of earning capacity of Munshi Ram is at the most 25 per cent. Actually it is less than this as he has got 1/3rd of his index and middle fingers left. According to the Schedule therefore it cannot be said that there is permanent total disablement.

Nor can it be said that the disablement described incapa citates Munshi Ram from all work which he was capable of performing at the time of the accident. Obviously he can do many kinds of work still which he was capable of performing then. On the question of law therefore I must hold that there was no permanent total disablement . . . . . ."

It is also argued that because the appellant has accepted the verdict of the Medical Superintendent of his choice with regard to loss of his earning capacity, the appellant cannot challenge the conclusions of fact in this regard by the Commissioner based on the medical examination report of the Doctor. It is further argued that no evidence has been led before the learned Commissioner to show that the appellant has been incapacitated for all work, which he was capable of performing at the time of the accident resulting in his disablement and the mere fact that the respondent has not been able to retain him in service on an alternative job will not go to establish that the incapacity is total disablement. It is maintained on behalf of the respondent that the proposition of law as laid down by their Lordships of the Calcutta High Court is too broadly stated because loss of capacity is to be determined with respect to capacity of the person before the accident and his reduced capacity after the accident, but it is not relatable to his non employment afterwards by the employer.

4. I have gone through the various orders passed by the learned Commissioner and I find that the appellant had accepted re‑examination at the hands of the Medical Superintendent, Services Hospital, and the said medical expert has considered the appellant's case as loss of right arm below the elbow which is assessed at 60 % in the Schedule for purposes of loss of earning capacity. I further find that as it is not a case of loss of the sight of both eyes or the aggregate percentage of the loss of earning capacity, as specified in the Schedule with respect to various injuries sustained by the appellant, amounting to one hundred per cent. proviso to section 2(1)(1) is not attracted. It was, therefore, necessary for the appellant to prove that he has been incapacitated for all work which he was capable of performing at the time of the accident. In the absence of evidence in this regard and also in the absence of any request having been made by him after the receipt of the report of the medical specialist to show that he was really incapa citated for all work, no finding can be claimed by the appellant that he has been incapacitated for all work which he was capable of performing at the time of the accident and it is not a case of reduction of earning capacity in every employment which the appellant was capable of undertaking at the time of the accident. Following with respect the ratio decidendi of All‑India Construction Co. Ltd. v. Munshi Ram, I hold that the appellant having failed to show that there has been complete loss of earning capacity and his case also not being covered by proviso to section 2(()(1), the compensation awarded to the appellant at 60% by the Commissioner calls for no interference.

5. The appeal fails and is dismissed. The parties are left to bear their own costs.

A.E. Appeal dismissed.

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