MANAGER, KHOOMTAIE TEA ESTATE Vs. RAMIYA MAL

JUDGEMENT

(1.) This is an appeal under Cl. 15 of the Letters patent against the judgment D/- 5-2-1974 Misc. (First) Appeal No. 60 of 1972 confirming the award of the Commissioner under the Workmen's Compensation Act in W. C. Case No. 2 of 1971. The respondent workman Ramiya Mal claimed compensation of Rs. 5,880/- on account of personal injury sustained by him in an accident which occurred on 26-6-69 in course of his employment under the appellant, Khoomtai Tea Estate. The Manager of the appellant was duly notified about the claim. The workman respondent examined himself and another witness on his behalf. On behalf of the appellant two witnesses were examined. The relevant issue which is necessary for the purpose of this appeal related to the question whether the workman sustained any personal injury which resulted in his partial or total permanent disablement or partial or total loss of earning capacity. The Commissioner held that the fracture of the radius of the right hand of the workman, even though healed subsequently, so incapacitated the injured as to prevent him from using the limb as before and therefore reduced his earning capacity to the same extent as if the workman lost his right arm below the elbow. He therefore held that the injury resulted in 60% loss of the earning capacity as per Schedule I of the Act. In other words, the finding of the Commissioner is that the Loss of use of the right hand as a result of the accident is one of complete loss of use as contemplated in the note to Sch. I of the Act. The compensation to be awarded is one as if there is complete loss of the hand itself. The Commissioner, therefore, held that the loss of the permanent capacity as provided in Sch. I of the Act amounted to 60% of the earning capacity. On that basis he awarded Rs. 5,040/- as compensation payable to the respondent.

(2.) The appellant preferred an appeal under S. 30 of the Workmen's Compensation Act to this Court. The findings of the Commissioner were upheld by the learned Chief Justice in Misc. Appeal (First) No. 60 of 1972 and the appeal was dismissed.

(3.) The main point urged by Mr.P. Choudhury, the learned counsel for the appellant, is that the finding of the Commissioner with regard to the loss of earning capacity is a finding without any evidence in that regard. It is also his contention that the Commissioner was not entitled to come to the conclusion that the loss of use of the right hand was one of complete loss of use. This finding, according to the appellant, is one based on no evidence. It is his contention that there is a difference between loss of use of the limb and the loss of earning capacity and that it is only loss of earning capacity alone for which compensation is provided under the Act. It is his further contention that the onus to prove loss of earning capacity is entirely on the workman, and in the present case the workman has adduced no such evidence and that therefore the finding of the Commissioner is unsustainable and liable to interference under S. 30 at the Workmen's Compensation Act.