E. Muthu vs Santhi Enterprises

P.R. Shivakumar, J.

This appeal has been preferred under Section 30 of the Employee''s Compensation Act, 1923 against the order of the Commissioner for

Employee''s Compensation-2/Deputy Commissioner of Labour-2 (Employee''s Compensation), Teynampet, Chennai-600 006 dated 11.10.2010

made in W.C.No. 466/2008.

The claimant workman is the appellant in the present appeal. He made the claim for compensation on the basis of his contention that he was

employed as a workman doing the work of grinding of motor under the first respondent herein on a daily wage of Rs.200/-, apart from annual

bonus, travelling, tea and other allowances and that on 31.12.2007 at about 10.00 a.m, he sustained injuries in an accident arising out of and in the

course of employment, resulting in complete loss of sight of his left eye and other multiple injuries. He made the claim against the first respondent

herein as his employer and the second respondent herein as the insurer, on the file of the Commissioner for Employee''s Compensation-2,

Teynampet, Chennai 600 006.

The first respondent/employer did not appear before the Commissioner for Employee''s Compensation and he did not file any objection also.

The second respondent/insurer alone filed a counter denying the averments made by the claimant and also contending that the claimant should

prove that he was a workman under the first respondent; that he was in receipt of a daily wage of Rs.200/- and that he sustained injury in an

accident arising out of and in the course of employment under the first respondent. It was also contended therein that the claimant should prove his

age, nature and the extent of disability. Apart from the above said general denial and contentions intended to cast the burden of proof on the

workman/claimant, the second respondent had also taken a plea that the employer, namely the first respondent had insured only five workman

employed under the first respondent under a policy bearing Policy No. 411901/48/2007/15; that the appellant herein/claimant was not covered by

the insurance policy and that the employer, namely the first respondent herein did not inform the second respondent/insurer of the accident in which

the appellant/claimant sustained injuries leading to the alleged permanent disability. Based on the above said contentions and also contending that

the amount claimed was not made in accordance with the provisions of the Employee''s Compensation Act and on the other hand, it was highly

exorbitant and imaginary, the second respondent herein pleaded before the Commissioner for Employee''s Compensation-2 for the dismissal of the

claim as not maintainable.

In the enquiry before the Commissioner for Employee''s Compensation-2/Deputy Commissioner of Labour-2 (Employee''s Compensation),

three witnesses including the claimant were examined as PWs1 to 3 and 10 documents were marked as Exs.A1 to A10 and also three documents

were marked as Exs.C1 to C3 as Court documents. On the side of the respondents, only one witness was examined as RW1 and only one

document was marked as Ex.R1.

The Commissioner for Employee''s Compensation-2/Deputy Commissioner of Labour-2 (Employee''s Compensation), after considering the

rival contentions, rendered a finding that the claimant had proved that he was a workman under the first respondent. However holding that the

appellant herein/claimant did not prove by adducing sufficient evidence that he was in receipt of a daily wage of Rs.200/- apart from allowances,

applied the minimum wage as notified by the Government of Tamil Nadu prevailing as on the date of accident, took the basic pay at Rs.54/- per

day (Rs.1,620/- per month), added D.A. of Rs.1684.80 per month and took the monthly wages of the appellant/claimant to be Rs.3,304.80.

Based on the evidence that the appellant herein/claimant had lost the eye sight of his left eye totally without any complication affecting the eye sight

of the right eye, the Commissioner took the disability to be partial permanent disability at 40%, assessed the age of the appellant herein/claimant as

on the date of accident to be 26 years based on Ex.A1-school transfer certificate, applied the relevant factor 215.28 and calculated the

compensation using the formula and arrived at the figure Rs.1,70,750/- as the total amount of compensation to which the appellant herein/claimant

was entitled. Rejecting the contention of the second respondent herein/insurer that the appellant/claimant was not covered by the insurance policy,

the Commissioner for Employee''s Compensation-2/Deputy Commissioner of Labour-2 (Employee''s Compensation) held the second

respondent/insurer liable to pay the said amount. As the claim of the said appellant/claimant was not settled within 30 days from the date of

accident, the Commissioner for Employee''s Compensation/Deputy Commissioner of Labour-2 (Employee''s Compensation) directed payment of

the above said amount together with an interest at the rate of 12% per annum calculated from the date of expiry of 30 days from the date of

accident till the date of deposit of the amount, without cost.

As against the said order of the Deputy Commissioner of Labour-2 (Employee''s Compensation), no appeal has been preferred either by the

employer, namely the first respondent herein or by the insurer, namely the second respondent herein. The workman, namely the appellant herein

alone has preferred the appeal under Section 30 of the Employee''s Compensation Act, 1923 contending that though the injury suffered by the

appellant was a scheduled injury listed in Part II of Schedule I, the Commissioner for Employee''s Compensation-2/Deputy Commissioner of

Labour-2 (Employee''s Compensation), committed an error in simply applying the percentage noted in the schedule, as the loss of earning capacity

and awarded compensation on the said basis, whereas the claim of the appellant/claimant (workman) was that due to the loss of eye sight in one

eye he had suffered 100% loss of earning capacity.

As against the order of the Commissioner for Employee''s Compensation, an appeal shall lie to the High Court, under Section 30 of the

Employee''s Compensation Act, 1923. But such a right is subject to a condition that a substantial question of law should involve in the appeal. The

first proviso to Section 30 of the Employee''s Compensation Act, 1923 says that no appeal shall lie against any order unless a substantial question

of law is involved in the appeal, and in the case of an order other than an order refusing to allow redemption of a half-monthly payment, unless the

amount in dispute in the appeal is not less than three hundred rupees. The other provisions are not applicable, because it is an appeal preferred by

the employee himself claiming enhancement of compensation. Even in an appeal preferred by the employee claiming enhancement of compensation,

the condition that a substantial question of law is involved in the appeal should be satisfied.

At the time of admission of the appeal, the following has been framed as the substantial question of law:

The authority below is correct in fixing the loss of earning capacity at 40% only when the claimant has claimed for 100%.

It shall be obvious that the same was not in a question form and on the other hand, it is in the form of a statement. It is found that a clerical mistake

has crept in not converting the statement into a question. The sentence could be converted into a question by prefixing the word ''whether''. As

such the substantial question formulated, is recast as follows:

Whether the authority below is correct in fixing the loss of earning capacity at 40% only when the claimant has claimed for 100%?

The arguments advanced by Mr.M.Swamikannu, learned counsel for the appellant and by M/s.Nageswaran & Narichania, learned counsel for

the contesting respondent were heard. The materials available on record were also perused.

So far as the finding of the Commissioner for Employee''s Compensation-2/Deputy Commissioner of Labour-2 (Employee''s Compensation)

regarding the nature of relationship between the appellant and the first respondent as a workman and employer is concerned, there is no dispute

and the finding of the Commissioner is not challenged by either of the respondents. Similarly, the finding of the Commissioner that the appellant

suffered an injury leading to permanent disability in an accident arising out of and in the course of his employment under the first respondent is also

not challenged. The finding of the Commissioner that the appellant is a covered employee and that the second respondent is liable to pay the

compensation that could be worked out under the Employee''s Compensation Act, 1923 is also not under challenge. The respondents have not

preferred any appeal or cross-objection challenging any of the said findings. Hence the said findings have become final. As the appeal has been

preferred by the appellant/workman contending that the compensation awarded by the Commissioner is inadequate, the only question that arises

for consideration in this appeal is regarding the sufficiency of the compensation awarded by the Commissioner for Employee''s Compensation.

By the evidence adduced before the Commissioner through the appellant, who figured as PW1 and through the doctors, who figured as

PWs.2 and 3 and the documents marked as Ex.P8 to P10, the appellant was able to prove that he had lost his left eye and the eye sight of his left

eye had been totally impaired. The evidence of the Medical Officers also make it clear that the injury caused to the left eye, though resulted in total

loss of the sight of left eye, did not involve complication affecting the other eye and that the other eye was perfectly alright and the eye sight of the

right eye was found to be at 6/6. It is quite obvious that apart from the loss of sight of left eye, no complication affecting the right eye has been

found. The other injuries if any, had not resulted in a permanent disability. The only injury that resulted in the permanent disability is injury caused

on the left eye due to hit of a piece of stone that flew when the claimant was doing the grinding work.

The loss of eye sight of one eye is admittedly a scheduled injury. It appears as item No. 25 of Part II of Schedule I. The percentage of loss of

earning capacity has been noted in the schedule as 40%. Section 4 of the Employee''s Compensation Act, 1923 deals with the amount of

compensation in case of death, injuries resulting in permanent total disablement, permanent partial disablement and temporary disablement, whether

total or partial. Section 4(1)(b) prescribes the amount of compensation in case of permanent total disablement. According to the said provision an

amount equal to 60% of the monthly wages of the injured multiplied by the relevant factor or an amount of Rs.1,20,000/- whichever is more shall

be the compensation.

Sub section (c) deals with compensation awardable in case of permanent partial disablement. It classifies the injuries into two categories,

namely 1) injuries specified in Part II of Schedule I to the effect that the percentage of compensation would be the percentage of loss of earning

capacity as specified in the relevant entry in Part II of Schedule I; and 2) non-schedule injuries, namely injuries not specified in Schedule I in which

case, the loss of earning capacity shall be decided based on the assessment to be made by a qualified Medical Practitioner. For better appreciation

Section 4(1) is extracted here under:

Amount of compensation.- (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:-

(a) where death results an from the injury : amount equal to fifty per cent of the monthly wages of the deceased employee multiplied by the relevant

factor; or an amount of one lakh and twenty thousand rupees, whichever is more;

(b) where permanent total disablement results from the injury : an amount equal to sixty per cent of the monthly wages of the injured employee

multiplied by the relevant factor;one lakh and twenty thousand rupees, whichever is more;

[Provided that the Central Government may, by notification in the Official Gazette, from time to time, enhance the amount of compensation

mentioned in clauses (a) and (b).]

(c) where permanent partial disablement result 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 (as assessed by the qualified medical practitioner) permanently caused by the injury;

(d) where temporary disablement, whether total or partial, results from the injury a half monthly payment of the sum equivalent to twenty-five per

cent of monthly wages of the employee, to be paid in accordance with the provisions of sub-section (2).

A perusal of the said provision will make it clear that in order to achieve uniformity in assessing the loss of earning capacity in case of

employment injuries resulting in permanent disability, the Legislature thought it fit to provide a schedule specifying six categories of injuries in Part I

of Schedule I as resulting in 100% loss of earning capacity and as many as 50 injuries (Sl.Nos. 1 to 48, 10(a) and 26(a) also counted as two more

items) in Part II of Schedule I. It is not the case of the appellant that apart from the loss of eye sight in the left eye he suffered permanent disability

in any other part of his body and the cumulative disability shall be 100%. On the other hand, it is a simple case of loss of eye sight of one eye,

namely left eye, without any complication where the other eye being normal.

Learned counsel for the appellant relying on the following judgments argued that the percentage of disability cannot be equated with the

percentage of loss of earning capacity. The judgments relied on by the learned counsel for the appellant are:

1) K. Janardhan Vs. United India Insurance Co. Ltd. and Another, ;

2) Pratap Narain Singh Deo Vs. Srinivas Sabata and Another, ;

It is true that the Legislature intended to achieve uniformity by prescribing a particular percentage of disability in case of the schedule injuries.

The Employee''s Compensation Act is a beneficial legislation aimed at alleviating the sufferings of the workman, who suffers injuries resulting in

disability or the sufferings of the legal heirs of the workman who dies in such accident. So far as the case of death is concerned, there cannot be

any problem, because the compensation is to be assessed on the basis of the monthly wages and the relevant factor applicable to the age of the

deceased in completed years as on the date of accident. So far as the permanent disability is concerned, certain types of disabilities are presumed

to be permanent disabilities resulting in 100% loss of earning capacity. They are the injuries found listed in Part I of Schedule I. In such cases,

depending upon the nature of the work done by the injured workman and the work with which he was trained, the burden of proving that he did

suffer only a lesser percentage of earning capacity shall be on the person who claims so. Similarly, when a workman has sustained an injury listed in

Part II of Schedule I, it shall be prima facie proof and it has to be presumed that he has suffered loss of earning capacity to the tune of percentage

noted against such injury and it shall be for the person who claims that the loss of earning capacity shall be less than or more than the percentage

noted against such entry to prove the same. In case the workman who has suffered the injury specified in Part II of Schedule I is able to prove that

he has suffered loss of earning capacity more than the percentage noted against the such entry in Part II of Schedule I, then he shall be entitled to a

compensation based on such proof that he had suffered loss of earning capacity at a higher percentage.

In Janardhan''s case cited supra, a driver who sustained injuries in the accident lost his right leg as it was amputated up to the knee joint.

Holding that driving was the job in which he was trained and he was disabled from continuing the job as driver, it was held that loss of earning

capacity could be assessed at 100%, since he was disqualified even from getting a driving licence as per Sections 8 and 9 of the Motor Vehicles

Act, 1988 even though the disability would have been assessed at 65%. In view of the said finding alone, the Hon''ble Supreme Court held that the

appellant therein suffered 100% disability and incapacitated from earning in his job as a tanker driver, since his right leg had been amputated up to

the knee joint. The very fact that he was even disqualified from getting a driving licence was the reason for the Hon''ble Supreme Court to arrive at

a conclusion that he had suffered 100% loss of earning capacity.

In Pratap Narain Singh Deo''s case cited supra, a Larger Bench of the Hon''ble Supreme Court consisting of four judges dealing with the case

of a carpenter, who sustained injuries leading to the amputation of his left arm from the elbow, came to the conclusion that he could not continue his

job as a carpenter because both hands were absolutely necessary for a carpenter to do the carpentry work. In that view of the matter, the Hon''ble

Supreme Court referred to the definition of total disablement found in Section 2(1)(l) of the Employee''s Compensation Act, 1923 and held that he

had suffered 100% loss of earning capacity. Section 2(1)(l) of Employee''s Compensation Act defines total disablement as follows:

(l) ""total disablement"" means such disablement, whether of a temporary or permanent nature, as incapacitates a employee for all work which he

was capable of performing at the time of the accident resulting in such disablement.

While interpreting the said provision, the Hon''ble Supreme Court made the following observations:

It has not been disputed before us that the injury was of such nature as to cause permanent disablement to the respondent, and the question for

consideration is that whether the disablement incapacitated the respondent for all work which he was capable of performing at the time of accident.

The Commissioner has examined the question and recorded his finding as follows:

The injured workman in this case is carpenter by profession.. By loss of the left hand above the elbow, he has evidently been rendered unfit for

the work of carpenter as the work of carpentry cannot be done by one hand only.

This is obviously a reasonable correct finding. Counsel for the appellant has not been able to assail it on any ground and it does not require to be

corrected in this appeal. There is also no justification for the other argument which has been advanced with reference to Item 3 of Part II of

Schedule I, because it was not the appellant''s case before the Commissioner that amputation of the arm was from 8"" from tip of acromion to less

than 4 1/2 "" below the tip of olecranon, a new case cannot therefore be allowed to be set up on facts which have not been admitted or

established.

A perusal of the said observation of the Hon''ble Supreme Court will make it clear that even though an injury is found listed in Part II of Schedule I,

the workman can prove that he has been disabled from doing the work in which he was trained and he was capable of performing at the time of

accident and on such proof he should be considered to have suffered a 100% loss of earning capacity. The said ratio alone was followed in

K.Janardhan''s case while deciding the question of percentage of loss of earning capacity of a driver whose right leg was amputated up to the knee

joint.

The contesting respondent relied on a judgment of the Hon''ble Supreme Court in Ramprasad Balmiki Vs. Anil Kumar Jain and Others, . The

same was a case in which a driver who suffered the injuries underwent three operations in his right leg for the fracture of femur bone and tibia bone

resulting in shortening of leg. It was contended that he became unfit to drive vehicle and hence he was to retire from service and his retirement was

on medical grounds. The claimant therein claimed that he suffered 100% permanent disablement and the compensation should be assessed on the

basis that he suffered 100% loss of earning capacity as against the certified disablement of 40%. The ratio decided in Pratap Narain Singh Deo

was discussed and it was held therein that the shortening of the leg to some extent did not come within the purview of permanent total disablement.

If the above said principles are applied to the facts of the case on hand, one can arrive at a conclusion that by the loss of one eye without

complications, the other eye being normal, has not resulted in 100% permanent disability, namely permanent total disability to assess compensation

holding that he sustained 100% loss of earning capacity. It has not been proved by evidence that the appellant/claimant has become unfit or

disqualified from doing the job, which he was doing in the first respondent company at the time of accident. In the claim application made before

the Commissioner, the appellant did not mention what was the nature of job he was doing in the first respondent concern. He had simply stated

that he was a workman employed by the opposite party and he received personal injuries in the accident that took place on 31.12.2007 at about

10.00 a.m as the grinding stone had fallen on his eye while he was doing the work of grinding the motor. In his evidence as PW1, he had stated

that he was employed as an electrical worker under the first respondent.

One Dr.P.Rajini, Government Ophthalmic Hospital, Egmore, was examined and through her Exs.C1 to C3, namely case sheet, Accident

Register copy and Discharge summary came to be marked. However, she has not been assigned any rank in the witness list. One Dr.Rajappa was

examined as PW2. He himself has given evidence that except the loss of the left eye, there was no complication and the right eye was normal and

his vision of the right eye was 6/6 and that the disability suffered by the loss of left eye was to be assessed at 40%. The disability certificate issued

by him has been marked as Ex.A9. There is no evidence to show that he suffered more percentage of disability or that he could not continue the

job for which he had been employed. It is also not the evidence of PW2 that he cannot do any work in which he was trained. As it is stated that he

was employed as an electrical worker, it cannot be said that the loss of one eye has resulted in total disability of doing the job of electrical worker

or any other job in which he was trained.

The Commissioner for Employee''s Compensation-2/Deputy Commissioner of Labour-2 (Employee''s Compensation), relying on the evidence

adduced on the side of the appellant/claimant himself has arrived at a correct conclusion that the appellant herein/claimant suffered only a partial

permanent disability to the tune of 40% and that the same resulted in 40% loss of his earning capacity. Even in the proof affidavit of PW1 he had

simply stated that he was treated as an in patient from 31.12.2007 to 08.01.2008 and thereafter he took treatment as an outpatient for about two

weeks. It was his further evidence that after the above said treatment in the Government Ophthalmic Hospital, Egmore, he took treatment for

about two days on 21.06.2008 and 22.06.2008 as an inpatient in Rajan Eye Care Hospital, where his left eye was completely removed and an

artificial eye ball was fixed in the cavity. He did state in the proof affidavit that he was doing grinding and winding work in the first respondent

concern.

It is pertinent to note that in Ex.A3-notice issued by the appellant herein/claimant through his counsel to the first respondent that he was a

skilled winder of grinding motor and was drawing a salary of Rs.1,175/- per week. In the reply issued by the first respondent through their counsel

it was admitted that the appellant herein was employed under the first respondent in the capacity as stated in the notice and that an accident took

place on 31.12.2007. Though it has been stated in the notice that he was getting a weekly salary of Rs.1,175/-, in the claim made before the

Commissioner he had stated that he was drawing daily wages at Rs.200/-. However, in the proof affidavit he claimed that he was getting a monthly

wage of around Rs.5,000/-. When his attention was drawn to those aspects and he was cross examined, he had stated that he gave the figure

Rs.200/- per day as wages including over time pay. However he did admit that there was no evidence in proof of the same. In the light of the said

admission made by the appellant/claimant, the Commissioner for Employee''s Compensation chose to take the minimum wage as per the

Notification issued by the Tamil Nadu Government which was applicable on the date of accident for assessment of compensation. According to

the minimum wages notification, the monthly basic wage was assessed at Rs.1,620/- at the rate of Rs.54/- per day. Adding a sum of Rs.1,684.80

as DA, total monthly wage was taken as Rs.3,304.80P. The same cannot be found fault with. In the absence of clear evidence and in the light of

the admission made by PW1 that he did not have any document to prove his contention that he was getting a sum of Rs.200/- per day as wages,

the adoption of the minimum wages notified by the Government can be perfectly justified. As we have seen supra the finding of the Commissioner

that the appellant/claimant suffered only a permanent disability and loss of earning capacity at 40%, the assessment of compensation taking the

monthly wages at Rs.3,304.80 and working out 40% of the compensation payable in case of total permanent disability can be fully justified.

The Commissioner for Employee''s Compensation-2/Deputy Commissioner of Labour-2 (Employee''s Compensation), relied on the transfer

certificate produced by the appellant/claimant as Ex.A1 to fix his age. According to the certificate he was born on 20.04.1981. He had completed

the age of 26 years as on the date of accident. The Commissioner correctly took the relevant factor to be 215.28 and assessed the compensation

using the formula

The above said calculation made by the Commissioner for Employee''s Compensation-2/Deputy Commissioner of Labour-2 (Employee''s

Compensation) is correct. Since compensation was not paid within 30 days from the date of accident, the Commissioner for Employee''s

Compensation-2/Deputy Commissioner of Labour-2 (Employee''s Compensation) has rightly held that the appellant/claimant was entitled to an

interest on the above said compensation amount at the rate of 12% per annum as provided under Section 4(a)(iii)(a). The Commissioner for

Employee''s Compensation has acted properly in awarding interest from the date of expiry of 30 days from the date of accident.

The above said discussions will make it clear that the claim of the appellant/claimant that he suffered 100% loss of earning capacity due to the

loss of one eye without complications, when the other eye not being affected, is not substantiated and that the substantial question of law

formulated in this appeal deserves to be answered accordingly against the appellant herein/claimant and in favour of the respondents. In all other

respects also, the order of the Commissioner for Employee''s Compensation cannot be stated to be either erroneous or defective warranting

interference by this court in this appeal preferred under Section 30 of the Employee''s Compensation Act, 1923 and that hence the appeal

deserves dismissal. However, this court is of the view that there shall be no order as to cost.

In the result, the civil miscellaneous appeal is dismissed and the order of the Commissioner for Employee''s Compensation-2/Deputy

Commissioner of Labour-2 (Employee''s Compensation), Teynampet, Chennai 600 006 dated 11.10.2010 made in W.C.No. 466 of 2008, shall

stand confirmed. However, there shall be no order as to cost.