ORIENTAL INSURANCE CO Vs. BETI BAI SMT

JUDGEMENT

(1.) INSURER of truck No. CPK-3534 has filed this appeal under Section 30 of the Workmen's Compensation Act, 1923 (for short 'w. C. Act') against the order dated January 30, 1992 passed in case No/. WC/17/91 (NF) by the Commissioner for Workmen's Compensation (Labour Court), Jabalpur.

(2.) THE only contention raised by the appellant in this appeal is that the Respondent No. l was employed as labourer for loading and unloading purpose on truck No. CPK-3534 under the employment of the Respondent No. 2 who received injuries, fractures of the right arm and shoulder, the Commissioner for Workmen's Compensation illegally determined the loss of earning capacity of 100% disability and awarded compensation as calculated according to the Schedule IV under Section 4 of the W. C. Act. Schedule I under Sections 2 (1) and 4 even in case of amputation through shoulder joint specifies percentage of loss of earning capacity as only 90% and for loss of hands and thumb is 60% at serial No. 1 and 5 of Part II of Schedule I. Therefore the award of compensation is contrary to the compensation as specified even in relation to a case of amputation. The respondent has not suffered any amputation, but it is the fracture which is malunited.

(3.) IT is well settled that if a workman establishes that he has been incapacitated to perform his job and has become totally disabled he is not debarred from claiming more compensation than specified in the Schedule for loss of earning capacity. A Division Bench of this Court to which one of us S. K. Dubey, J. was a Member in case of United India Insurance Co. Ltd. v. Balmat Singh and Anr. , 1976 JLJ P. 253 following the decision of Supreme Court in case of Pratap Narain Singh Deo v. Shrinivas Sabata and Anr. , (1976-I-LLJ-235) and decision of Karnataka High Court in National Insurance Company v. R. Vishnu and Anr. 1992 A. C. J 590 has taken the view.