SAMIR U PARIKH Vs. SIKANDER ZAHIRUDDIN

JUDGEMENT

(1.) This appeal under the Workmen's Compensation Act, 1923 (hereinafter referred to as 'the Act') raises an important question of law, namely, whether the Commissioner for Workmen's Compensation has jurisdiction or power to assess the percentage of loss of earning capacity more than what is indicated against the particular injury in Part II of Schedule I of the Act.

(2.) The admitted facts are that the applicant workman was in the employment of the appellant. At about 5.30 p.m. on the 1st September, 1976 while he was on duty loading iron sheets in a motor lorry, a bundle of iron sheets weighing about 2 1/2 tons fell on his right leg. As a result, his right foot was injured and had to be amputated completely below the ankle. The stump left after the amputation had an unhealthy skin-flap which did not adhere to the bone. The stump was also not ideal for artificial limb fitting. It gave a biting pain and the workman was unable to put his weight on it since it was also 3 1/2" off the ground. He had suffered a severe waste of the muscles of his calf and thigh and had to walk with the aid of a crutch. He was also unable to squat on the floor on his haunch. The medical evidence showed that the disability though partial was permanent and that the workman would not be able to do the work as a lorry-cleaner for which he was employed at the time of the accident or to do any other work which required him to stand. According to the medical opinion, further, the permanent partial disability was to the extent of 40 per cent.

(3.) The workman filed his application for compensation under the Act alleging that he had sustained a total loss of his earning capacity on account of the said injury, and claimed a compensation of Rs. 29,400/- on that basis. The application was resisted by the opposite party on various grounds. Since the risk in question was covered by an insurance policy from the United India Fire and General Insurance Co. Ltd., the company deposited an amount of Rs. 8,820 as compensation with the Commissioner during the pendency of the proceedings, on the basis that the workman had sustained an injury which as per the Schedule of the Act, showed a loss of only 30 per cent of his earning capacity. The only contention which was raised on behalf of the opposite party before the learned Commissioner was that the injury in question fell within the description of the injury given either at Sr. No. 22 or at best at Sr. No. 21 in Part II of Schedule I of the Act, and the workman was entitled to compensation only on the basis that the loss of his earning capacity was either 30 per cent or 40 per cent respectively. The opposite party therefore urged that the compensation payable to him should be calculated accordingly and not on the basis of 100 per cent loss of the earning capacity as claimed by the workman. As against this, the contention advanced on behalf of the workman was that since he had sustained a total loss of his earning capacity, he should be awarded compensation on that basis. The learned commissioner held that although the injury in question answered the description of the injury listed at Sr. No. 21 and the loss of earning capacity shown in the Schedule against the said injury was 40 per cent, it was open for the workman to prove that the actual loss of his earning capacity was more. Since in the present case the workman proved that the actual loss of his earning capacity was 80 per cent, the learned commissioner awarded compensation of Rs. 23,520 on that basis. It is this order of the Commissioner which is challenged before me.