RAJESH Vs. MP. ELECTRICITY BOARD

JUDGEMENT

(1.) THIS appellant had been working for 4 years as an employee of Madhya Pradesh Electricity Board (Board for short) (R-1) on Rs. 950/- per month as wages. On 26.7.1994 the appellant with other employees Dilip and Suresh had been loading big bundles of wires in a truck. Suddenly one such big bundle slipped from the shoulder of co-workers Dilip and Suresh and fell on the chest and right leg of the appellant fracturing both tibia and fibula bones. Appellant became unconscious and was taken to Ambedkar Hospital, Mhow and after providing first aid was sent to M.Y. Hospital, Indore where he remained admitted for 5 days. His right leg was put to plaster. Later his leg was put to plaster 4 times but his right leg was shortened. He has become disabled and can walk only with the help of crutches. Despite notice he was neither re-employed nor his back wages were paid. Thus, a claim was filed under Workmen Compensation Act, 1923 (Act for short) for 1.58 lacs. Board (R-1) had taken the stand that the appellant had been a daily wager. He had suffered a fracture which was cured after the same was put to plaster. According to Board (R-1) there had been no diminution in his earning capacity and the appellant was not entitled to get any compensation for mental strain, medical expenses, special diet, etc. The Commissioner holding that permanent disablement was only to the extent of 15% and awarded Rs. 15,454/- as compensation with interest @ 6% per annum.

(2.) THIS appeal under section 30(i) of the Act on following substantial question of law are involved : (a) Could the Commissioner hold the extent of disability at 15% only against the certificate of Doctor. (b) The Commissioner erred in not imposing penalty on the Board (R-1).

(3.) .The Commissioner held that diminution in coordination, strength and security are not factors of permanent disability. In my considered opinion the Commissioner had been clearly at error in giving such a finding. Diminution of coordination, strength and security are definitely important factors affecting the physical fitness of a labour. Thus, in my considered opinion, the Commissioner should have assessed the permanent disability to the extent of 30% instead of 15%. Prahlad Gupta (NAW-1) had admitted that the appellant used to work on muster roll that is on dally wages. According to him appellant was not expelled from the work but he himself did not return to work. Appellant himself Rajesh (AW-1) has admitted that he is still working as a labour- in construction work in other words admitting he is not fully disabled. On this evidence the present is. not a case of 100% disability unlike G.V. Venkatesh Baku v. Krishna Kumar 2002 AC J 1998, Pratap Narain Singh. Deo v. Srinivas Sahara 1976 ACJ 141 (SC). It is well settled that loss of earning capacity has to be adjudged or determined looking both to the nature of injury sustained, as per the opinion of Doctor and the nature of work carried out by the labour as far Anwar Hussain v. Khalif Mohd. 2000 (1) MPWN 50 based on Bharat Singh v. Pluton Cement Pvt. Ltd. 1999 ACJ 496, Shankarlal v. General Manager, Central Railway Bombay 1990 ACJ 1028. Medical evidence as to loss of physical capacity is an important factor to determining loss of earning capacity Sarat Chatterjee and Co. v. Mohd. Khalil 1979 ACJ 106, Bangal Coal Co. Ltd. v. Barium Gape 1983 (11) ILLJ 86. In the facts of the present case, the learned Commissioner had certainly been wrong in discarding the opinion of Doctor Sapan Kumar Banerjee (AW 2) as in sufficient reasons. Certainly, the extent of diminution in earning capacity had been to the extent of 30% as per medical evidence. Thus, an enbncement of Rs. 15,454/- with interest @ 6% per annum since the date of accident i.e. 26.7.1994 has to be allowed.