KUNEI MINZ Vs. R C NAYAK

JUDGEMENT

(1.) THE workman being aggrieved by the judgment dated September 10, 1999 passed by the Asst. Labour Commissioner and commissioner for Workmen's Compensation, rourkela, ('commissioner' hereafter) in W. C. Case No. 38/1999 has filed this appeal under section 30 (1) of the Workmen's Compensation act, 1923 (in short 'the Act') for enhancement of the compensation awarded by the commissioner. A learned single Judge of this Court while hearing this appeal found that the Division bench of this Court in C. David v. Gobind chandra Mishra and Another, 1997-II-LLJ-844 (Ori), and the single Judge decision in golakha Chandra Bej v. Gobinda Hari passoria and Another, 1997-III-LLJ (Suppl)1168 (Ori), both rendered relying upon the decision of the Supreme Court in Pratap Narain singh Deo v. Shrinivas Sabata and Another, air 1976 SC 222 : (1976) 1 SCC 289 : 1976-I-LLJ-235 (SC), were contradictory. Keeping in view the conflicting opinions and the importance of the question involved, the learned single Judge by order dated March 14, 2000 referred the matter to a larger Bench and that is how this matter is placed before this bench to resolve the issue.

(2.) IN order to appreciate the scope of the reference, it would be apt to notice the facts of the case in brief which are as hereunder: the appellant-workman was employed as a Khalasi in the truck bearing registration No. ORS 4128 owned by respondent No. 1 and insured with respondent No. 2-New India assurance Co. Ltd. , Rourkela. The said truck while proceeding from Rourkela towards jharsuguda met with an accident on April 26, 1999 as a result of which the appellant, who was on duty, sustained serious injuries which ultimately led to amputation of his left hand below shoulder. The appellant filed an application before the Commissioner claiming compensation to the tune of Rs. 2,28,400/-against the owner as well as the insurer of the truck on the ground that he has become permanently disabled due to amputation of his left hand in the accident arising out of and in course of his employment. The appellant in support of his claim adduced evidence and examined apart from him one Sarat Nayak and relied upon as many as five documents including the F. I. R. and the medical bills. His claim was that he was permanently disabled; he was getting salary @ Rs. 1,700/-per month and was aged 20 years at the time of the accident. The Commissioner framed two issues, namely (i) what is the quantum of compensation payable? and (ii) whether the owner of the truck in question or the insurer of the said truck was liable to be pay compensation? the Commissioner on consideration of the materials on record found that the appellant was employed by respondent no. 1 in the truck in question; he met with an accident arising out of and in course of his employment on 26. 4. 1999; the monthly wages of the appellant were Rs. 13,507/- and his age at the time of accident was 20 years. The Commissioner further found that the amputation of left hand below the shoulder being a scheduled injury, as per Schedule-I, Part ii, the appellant has lost 70% of his earning capacity due to such injury and calculated the compensation at Rs. 1,27,008/- and fixed the liability of payment of the compensation amount on the owner of the truck, as the relationship of employer and employee was established in course of trial, but directed the insurer of the vehicle to indemnify the owner since it was found that the vehicle was duly insured with the insurer.

(3.) THE appellant claiming higher compensation has filed this appeal on the ground that as the injury sustained by the appellant rendered him permanently disabled, the percentage of loss ought to have been determined at 100% and not at 70%, which is the minimum prescribed under the schedule. The further ground taken in this appeal is that the quantum provided in Schedule I, Part II, is minimum and does not preclude the commissioner from assessing the compensation at a higher percentage in view of the fact that the disablement of the claimant-appellant is total and not partial. Law in this regard is well settled that if the injury makes the workman unfit for the work which he was discharging prior to the accident, the disablement is total and not partial.