JOWALA PROSAD AGARWALLA Vs. BHOLA ROUTH

JUDGEMENT

(1.) THIS is an appeal by Jowala Prosad Agarwalla, Partner Agarwalla Saw Mills, Bijni, under Section 30 of the Workmen's Compensation Act (Act No. VIII of 1923).

(2.) THE Respondent made an application under the Workmen's Compensation Act before the Commissioner for Workmen's Compensation, on the allegation that he was a workman employed by the opposite party Jowala Prosad Agarwalla and was originally engaged in the Saw Mill of the opposite party working on the machine for about four years. Thereafter he fell sick and took leave for about three months and resumed to his duties in the month of Magh, 1365 B. S. On resumption the Opposite party engaged the applicant in their log and timber handling and transporting job on Railway wagons at Railway sidings near the Railway Station at Bijni. On the 27th Baisakh, 1365 B. S. corresponding to 11th of May 1959, the applicant received personal injury in course of his emplement. In the application there is a statement the effect that more than ten persons are employed and working in the different premises of the said Mills during the preceding twelve months. In paragraph 2 of the petition it is stated that the applicant sustained the following injuries, namely:

(3.) IN the present appeal, two main points have been urged. It is firstly contended that the Commissioner erred in calculating the amount of compensation. The workman is entitled to compensation as provided for in Section 5 and Schedule of the Act. Schedule I lays down the list of in juries deemed to result in permanent partial disablement. One of the items in this list is loss of thumb, and, if there is loss of thumb, the workman is entitled to 25 per cent of the loss of earning capacity. In case of loss of index linger, the work -pan is entitled to 10 per cent of the loss of earning capacity. It is not disputed that if there was a loss of thumb the workman would have been entitled to 25 per cent of the loss of earning capacity. It also cannot be disputed that if there was a loss of the index finger, the workman was entitled to 10 per cent of the loss of earning capacity. The point taken before us is. That there is no evidence to support the finding that there was a loss of the index finger. It is further contended that even on the findings arrived at by the Commissioner it cannot be said that the applicant was entitled to 10 per cent of the loss of earning capacity on the ground of loss of the index finger.