M/s. Vibgyar Plastics vs K. Munusamy

Prabha Sridevan, J.—The opposite party in a claim under Workmen''s Compensation Act has filed the above appeal. The respondent while

working under the appellant received personal injuries arising in the course of his employment resulting in permanent disability. The accident

occurred around 4:00a.m. on 04-06-1996 while he was working as an injection moulder in the machine. The switch failed resulting in the accident.

The respondent sustained fracture on the right hand. He suffers inability to flex his fingers and sustained other injuries also. According to the

respondent the disability is 40%. He was 18 years old at the time of accident earning a monthly salary of Rs. 1500/- and he was entitled to a sum

of Rs. 2,00,000/- as compensation. The appellant in the counter statement denied all the allegations. The Commissioner, Workmen''s

Compensation on a consideration of the oral and documentary evidence awarded a sum of Rs. 70318/-. Aggrieved by this the present appeal has

been filed. Mr. Jayachandran, learned counsel for the appellant submitted that the Workmen''s Compensation Commissioner had erred in ignoring

the findings of the Government Doctor marked as Ex-A1 issued at the time of discharge of the Workmen and that the findings in Exs-A1, and A4

are unsustainable and contradictory and when Ex-A1, the discharge certificate had certified that there is no disability the Commissioner erred in

awarding the compensation. The learned counsel for the respondent on the other hand submitted that there is no denial that the accident occurred

during the course of employment and the respondent had examined a Doctor who would certify the disability at 40% and therefore, there was no

reason to interfere with the award. A perusal of the award shows that the Commissioner has taken into consideration the evidence not only on the

respondent''s side namely AW 1, who is the respondent himself and AW2, the doctor, but also R.W. 1 partner of the opposite party, the appellant

herein and R.W.2. This is what the Commissioner has stated with regard to examination of R.W. 1, the partner of the appellant:

On behalf of the respondent, C. Rajan, partner of Opposite party gave evidence and marked Ex-R1. He had categorically stated in chief

examination that the petitioner was employed by the opposite party as helper and the applicant was drawing a salary of Rs. 1500/-p.m. In the

cross examination RW1 Rajan has admitted that the accident took place while the applicant was at work and that two persons are required to

perform the job in injury moulding machine. Strangely the witness has stated that the applicant was working in another company at Ekkaduthangal

but has not stated the name of the company.

It is seen therefrom that there is an admission that the respondent is an employee of the appellant and that he was drawing a salary of Rs. 1500/-.

There is also an admission that the accident took place during the course of the employment. R.W.2 was examined on the side of the respondent/

appellant to show that the respondent was not working for the appellant but only for Chanakya Plastics. But in the absence of Salary Register, etc.,

to show that the respondent worked for Chanakya Plastics the Workmen''s Compensation Commissioner declined to rely on the evidence of

R.W.2. The Commissioner therefore, rightly came to the conclusion that the appellant is liable to pay compensation for the injuries sustained by the

respondent during the course of employment. Ex-A1 is the O.P. sheet and the physiotherapist had given a certificate denying the disability. But the

Doctor who gave this certificate has not been examined. Even as regards the evidence of the respondent, which is stated as follows:

There is absolutely no cross examination regarding the factum of injury. No question was asked that the respondent''s hand did not get caught in

the moulder. No question was asked regarding the genuineness of the fracture to the right hand. The focus of the cross examination appears to

have been only whether the respondent knew how to operate the injection moulding machine and whether the accident occurred on account of his

negligence. The fact of injury has not been disputed. The evidence of the Doctor is that four of the bones have been broken and they have fastened

with wire. Some grafting also appears to have been done to the right thumb. He assesses the disability at 40%. In cross-examination he admits that

according to Ex-A1, the applicant is not entitled to disability certificate. The injury suffered by the appellant is not a schedule injury.

Section 4(1)(c) (ii)of the Workmen''s Compensation Act, 1923 states that where permanent partial disablement results from injury in case of an

injury not specified in Schedule 1 the percentage of the compensation payable will be such percentage of the compensation that is payable in the

case of permanent total disablement as is proportionate to the loss of earning capacity permanently caused by the injury. The loss of earning

capacity should be assessed by a qualified medical practitioner if the injury is of the nature described u/s 4(1)(c)(I), the Workman is required only

to show that he had suffered injury in the course of employment and that it is a schedule injury and he will be entitled to compensation and for

nonscheduled injury the workman should show by letting in evidence that as a matter of fact he had suffered loss of earning capacity and he is

entitled to compensation in proportion to the loss of earning capacity.

The Supreme Court has held in Pratap Narain Singh Deo Vs. Srinivas Sabata and Another, that compensation should be awarded not with the

reference to loss of physical capacity but with reference to loss of earning capacity. Some times, physical disability may not be the same as the loss

in earning capacity, though the former may help in determining the latter. The learned counsel for the petitioner also relied on the decision in Bharat

Singh Vs. Pluton Cement Pvt. Ltd., which is a Madhya Pradesh judgement where the Court granted compensation at the rate of 100% disability.

In that case the Doctor had certified the disability at a lesser extent. In spite of that since the workman lost two phalanges of the index finger and

middle finger of the left hand the High Court enhanced the award.

In this case it is relevant to note that the Doctor who issued Ex-A1, certificate was not examined. At the best Ex-A1 may be referable to

physical disability. Whereas the Doctor who has given evidence as the appellant''s witness has stated that the thumb has deformed and therefore

the appellant will not able to grip. Therefore, the thumb and the other fingers cannot be brought together and therefore, it will be very difficult for

the appellant to grip anything with firmness.

In these circumstances, definitely the appellant''s earning capacity has suffered a loss and the Commissioner also has unquestioningly accepted

the evidence of A.W.2. the Doctor and fixed the loss of earning capacity at 30%. Therefore, the substantial question of law raised by the appellant

with regard to the Commissioner ignoring Ex-A1 is answered against the appellant. In view of my discussions above I do not think there is any

contradiction between Exs-A1 and A4 to warrant interference with the order of the Commissioner. This C.M.A is therefore, dismissed with costs.

Consequently, C.M.P. No. 8793 of 2000 is closed.