VIJAY PRAKASH SHRIVASTAVA Vs. BONAFIDE PACKERS

JUDGEMENT

(1.) THE First Appeal challenges the award of the Commissioner for Workmen 's Compensation dismissing the claim of the appellant. The appellant was employed as a Punching Machine Operator on a monthly 'A/age of Rs.984/ - with the respondent. He sustained an injury on 1.6.1985 leading to fracture of his fingers of the right hand. The Appellant after issuing notice as required under the Workmen 's Compensation Act (for Short, hereinafter referred to as the 'Act ') tiled a claim under the Act claiming compensation amounting to Rs.1,09,975/ - together\with interest and penalty. This claim was made by the appellant on the basis that he had suffered total permanent disablement. The respondent deposited an amount of Rs.43,550/ - towards the claim. In its written statement, the respondent contended that the appellant was employed as a helper and not as a Punching Machine Operator.

(2.) PARTIES led evidence before the Court. The appellant examined himself and deposed that he sustained the injury while removing a carton from the punching machine. He was moved to Nanavati Hospital and was hospitalised for 28 days. A surgery was performed on his right palm and after being discharged from the hospital, he was required to attend the O.P.D. of the hospital for about 1.1/2 months. He has also deposed that he was paid full wages for the first month after the accident. Thereafter, he was paid only Rs.600/ - per month till August 1985. The company then disallowed the appellant from continuing in employment. The appellant has contended that he is unable to do any work with his right hand after the accident and his attempts to get employment elsewhere had proved to be futile in view of his physical disability. The appellant denied the suggestion put to him in his cross -examination that he was able to do light work with his right hand. The doctor who was examined on behalf of the Appellant has stated that the appellant had suffered extensive crush injuries on his right hand and was an in -patient in the hospital. He had examined the appellant on several occasions while he was in hospital. On 7.9.1986, the Doctor assessed his disability at 100% because of his inability to return to his previous job. The Doctor has opined that the disability is final and permanent. This witness has also pointed out in his evidence as to how the disability is assessed. The suggestion of the respondent that the disability was only 60% has been denied. The partner of the Respondent who has been examined on behalf of the respondent has deposed that the appellant was working as an unskilled worker. One of the documents produced before the trial Court was the accident report accident of the workmen submitted by the respondent to New India Assurance Company Limited, the Insurance Company for the respondent. In that document, it has been mentioned that the accident occurred when the appellant was operating the punching machine and his right hand was crushed between the die and the plate of the machine. The injury sustained by him is described as compound fracture of fingers and palm of the right hand. It has also been mentioned that the injury has caused permanent disablement.

(3.) ON a perusal of the evidence recorded and the documents produced before the trial Court and the judgment of the Commissioner for Workmen 's Compensation, I am of the view that the Commissioner has committed an error by dismissing the application. There certainly has been a miscarriage of justice to the prejudice of the appellant. The Commissioner has rejected the application on the ground that the loss of earning capacity was only 60% and, since the respondent had deposited an amount of Rs.43,550/ - towards the compensation, the appellant was not entitled to any further amount.