BABU ALTHAF Vs. FARIDA ABBA KHASIM

JUDGEMENT

(1.) WE have heard the learned counsel who represent the contesting parties. The main submission canvassed by the appellant's learned counsel is that the authority was wrong in having awarded only 60 per cent of the aggregate compensation that had been computed insofar as the finding and evidence clearly indicates that the appellant was incapable of carrying on with the machine job after the amputation and furthermore that he was in fact discharged from service. Reliance is placed on two decisions, the first of them reported in 1964 (2) Mys LJ 85 wherein the Division Bench has very clearly applied the test as to whether the injured was capable of carrying on any other lesser form of employment and in the absence of evidence to establish this that he has lost his job as a result of the accident that he would still be entitled to 100 per cent compensation and not the percentage amount. The same view has been expressed by the bombay High Court in the decision reported in Ahmed Abdul v. H. K. Sehgal, AIR 1965 Bombay 32.

(2.) ON behalf of respondent insurance company, learned counsel submits that the court is required to take cognisance of the gravity of the injuries and quite apart from the fact that Part II of Schedule I of the act in an injury of the present type at item 4 clearly indicates that the compensation should be limited to 60 per cent, that the court must also take judicial notice of the question as to whether the injury has left the workman in such a condition that he is not in a position to carry out any work. Learned counsel submits that this is the very test which is contemplated in Schedule I, Part II while prescribing that in the case of amputation of one hand that the compensation will be limited to 60 per cent. His submission is that merely because the workman could not continue in that job in that factory would under no circumstances disqualify him from doing any lesser form of work wherein two hands are not required. Consequently, his submission is that no interference with the order is contemplated.

(3.) AS regards the point of law involved, the case-law is very clear to the effect that the percentage prescribed in Schedule I would normally apply but that the court is within its discretion to vary this percentage. The spirit behind providing for compensation under Workmen's Compensation act is in order to offset the loss that would be caused due to the injury that has occurred and that is why the courts have gone into the question of whether after that accident the workman would be in a position to secure any other employment. One of the leading cases on the point Ball v. William Hunt and Sons Ltd. , (1912) AC 496, was a case in which a workman had lost one eye which happened to be an eye in which he had no sight and consequently, the effective loss was zero but despite this he could not get employment anywhere because every employer insisted that it was a requirement that the workman must have two eyes and the court granted the 100 per cent compensation though technically, the workman had potential to do some other job. The Division Bench in the decision referred to by us has very aptly summarised the legal position by indicating that it is certainly open to the employer to demonstrate that the workman could get some other job possibly of a lesser nature and that he has in fact got it. Both the courts in the string of decisions went into the aspect that employment for a handicapped person is almost impossible when there are enough of able-bodied workers available. This is an angle of the law which the appellant's learned advocate has highlighted and which is in fact justified. Under these circumstances, the order passed by the authority will have to be varied and the aggregate compensation will have to be stepped up to Rs. 1,08,455 as against rs. 65,073 as awarded.