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Judgment
S. Vimala, J.—The injured / employee, aged 34, earning a sum of Rs.5,200/- per month, suffered:
(a)Fracture of right rib bones 8, 9, 10 and 11;
(b)Fracture of wrist in the right hand; and
(c)Fracture of hip bone,
while he fell down from 50 feet, (while attempting to put up a roof), in an accident, which took place out of and in the course of employment.
He claimed a sum of Rs.5,00,000/- as compensation. The claim was disputed on the following grounds:
(a) The accident occurred due to the negligence of the claimant himself;
(b) The claimant did not follow the safety instructions issued by the employer;
(c) Injuries sustained were minor in nature and did not result in disability, and therefore, there is no loss of earning capacity.
The Commissioner for Workmen Compensation, assessed the age of the claimant as 33, and finding that the accident arose out of and in the course of employment and also finding that there was loss of earning capacity, fixed the compensation at Rs.2,66,191/- (60/100 x 4000 x 201.66 x 55/100). This award is under challenge by the appellant.
The bone of contention is that the Deputy Commissioner of Labour is not correct (a) in fixing the disability at 55%, (b) in assessing the monthly income at Rs.5,074/-, and (C) granting award for loss of earning capacity when the claimant is reinstated in service in the same salary. In other words, the contention is that the physical disability did not result in loss of earning capacity and therefore, the Tribunal is not correct in awarding compensation for loss of earning capacity.
The contention raised, raises the following branching issues:
(a)The percentage of physical disability is whether equivalent to loss of earning capacity?
(b) When the employee continued in the service of the employer even after the accident, whether he is entitled to compensation on account of loss of earning capacity and whether that would be a disentitlement to claim damages on account of permanent disablement?
(c) Whether the opinion of the Doctor with regard to functional disability will be final and binding on the Tribunal?
(d) Whether determination of loss of earning capacity is confined to the present position the claimant is holding or the assessment must be extended to future possible assignments that could be taken up by the claimant?
These issues have been answered in the following decisions:
(1) In the decision reported in Mgt. of Tamilnadu Cement Corporation Ltd. Vs. N. Jayapalan, , it has been held that the opinion of the Doctor with regard to physical and functional disablement is not final and binding and it is always open to the employer to show that the opinion of the Doctor is unacceptable. In the very same decision, it has been held that just because the employee continues in employment even in the higher salary, he is entitled to compensation on account of the permanent disability suffered by him. It has been held in the said decision as under:
"4.Learned counsel for the appellant next argued that the respondent was continuously employed and he was paid higher salary even after the accident and hence, he is not entitled for any damages on account of the permanent disability suffered by him. In The Management of Sree Lalithambika Enterprises, Salem Vs. S. Kailasam, , a Division Bench of this Court has held that merely because the employer pays the same salary to the workman, it cannot be stated that there is no loss of earning capacity. If the law were to be so, the employer can easily evade the provisions of the Act by continuing the employment on the same terms as were enjoyed by the workman prior to the accident. Nor again can it be said that if in future the workman is compelled to seek employment at reduced wages, he can claim compensation. That would only result in the negation of the beneficial provisions of the Act. Further, if the management winds up its business, the workman will be in the lurch because no person will give employment to a person who had suffered the injury. I therefore find no merit in this appeal."
(2) In the above decision, the decision reported in The Management of Sree Lalithambika Enterprises, Salem Vs. S. Kailasam, , has been relied upon, whereunder, it has been held as follows:
"10.Coming to the scope of Section 4(1)(c)(ii) of the Act, we are of the view that the loss of earning power should not be confined only to the present capacity because it is contended by the management that at the same salary the workman is continued in employment. That will be only begging the question. If this were to be the law, the employer can easily evade the provisions of the Act by continuing the employment of the same terms as was enjoyed by the workman prior to the accident. Therefore, we are unable to agree with the view taken by the Punjab High Court in Sewa Singh v. Indian Hume Pipe Co., (supra). Nor again can it be said that if in future the workman is compelled to seek employment at reduced wages he can claim compensation. That would only result in the negation of the beneficial provisions of the Act which are intended to benefit unfortunate workmen like the respondent herein. Added to this, should the management wind up its business, the workman will be in the lurch because no person with his eyes open will give employment to a person who had suffered an injury of this kind. Therefore, this is clearly a case to which Section 4(1)(c)(ii) of the Act would apply. Consequently, we agree with the judgment forming the subject-matter of the appeal."
(3) In the decision reported in National Insurance Co. Ltd. Vs. Mubasir Ahmed and Another, , it has been held that loss of earning capacity is not a substitute for percentage of physical disablement and that it is one of the factor to be taken into account.
(4) In the decision reported in 1997 (1) L.L.N. 947, it has been held that when the medical officer has assessed the permanent disability and has also spoken of its effect on his employment, the Commissioner has discretion to assess the loss of earning capacity with reference to the medical evidence.
So far as this case is concerned, the Doctor has assessed the physical disability and considering its effect upon the employment of the employee, has certified the disability at 60%, but the Commissioner has exercised his discretion and assessed the disability at 55%.
So far as the salary is concerned, even though monthly salary is Rs.5,074/-, as per the statute, the maximum has been taken only at Rs.4,000/-. The fact remains that the employer is under the responsibility to take care of the interest of the employee. The employer is a pay master. It is within the personal knowledge of the employer to say whether the salary of the employee as stated by him, is correct or not. If really it is not correct, it is open to the employer to produce the salary certificate. But nothing has been done. The employer is duty bound and is responsible to place correct facts before the Court. But, instead of discharging the responsibility, the employer has chosen to dispute the age and everything, just because he has been given liberty to place his objections. The objections taken are irresponsible and it does not merit acceptance. Therefore, the Civil Miscellaneous Appeal is dismissed. Consequently, the connected miscellaneous petitions are closed. No costs.