RAJASTHAN STATE ROAD TRANSPORT Vs. RAMOTAR

JUDGEMENT

(1.) MR . Gupta, learned Counsel for the appellants has raised a very pertinent point, in this appeal by Rajasthan State Road Transport Corporation against Ramotar son of Birdhi Chand, in S.B. Civil Misc. Appeal No. 313 of 1985. His submission is that the doctor has failed to assess the percentage of permanent loss of disability of the injured and therefore the Tribunal has acted in an arbitrary manner in holding that there would bs 50 per cent loss of strength of capacity to work of Ramotar who is doing the job of a washer man.

(2.) MR . Srivastava, has submitted that the statement of doctor read with the statement of Ramotar makes it clear that Ramotar in this accident lost two fingers of the leg and there was a fracture in the thigh and knee. Ramotar has come in evidence himself and stated on oath that he cannot earn anything now, although he was earning Rs 700/- per month earlier. The Tribunal has held that this assertion of Ramotar that he cannot earn anything cannot be believed because the fracture of the right thigh and knee has now been treated and there has been only partial loss of movement in the right knee. Doctor Rajendra Kumar PW 4 who examined the injured has stated that the fracture of right thigh and right knee results in partial loss of movement creating difficulty in walking and sitting. He has stated that the right leg has also been shortened and it would never be now completely cured. The left leg two fingers have been crushed and that is also permanent disability of fingers on account of which he would not be able to wear shoes and there would be lot of difficulties in walking, running and lifting any weight. It is true that Mr. Gupta's submission is correct that in terms of percentage of disability the doctor has not stated anything. The question is whether on account of this the injured should be kept high and dry and no compensation should be allowed. Mr. Gupta pointed out that in Employees Insurance Act, 1943, the schedule has been given for compensation and in fact the result of permanent disablement has been provided in part II. Amputation of lower limbs have been dealt with in S. No.17 to 30. These serials show that in case of amputation of both feet percentage of loss of earning capacity should be 90 per cent then comes the amputation or of both fees 80 per cent and loss of both toe of both feet 40 per cent. Then there is corresponding decree from 30, 20, 19,18,17, 16. The other injuries are mentioned in S. No. 49 and 50 where there are only some injuries of two toes of one foot which has been as 5 per cent and part of which shows as 2 per cent. The note says that the complete and permanent loss of the use of three limbs and the member referred to in schedule shall be deemed to be equivalent to loss of that limb or that member. Now as the evidence stands it is very difficult in the present case to say that whether there was any particular type of loss in terms of the schedule, obviously there was no amputation and yet the evidence is that the claimant was permanently incapacitated so far as his capacity to work as washer man lifting of weight, running etc. is concerned. Amputation have been variously created as 90 per cent loss. Loss of both toes of both free have been treated as 40 per cent loss of earning capacity. Imputation of a heap is 90 per cent. Now in the present case the medical evidence is that in the leg two fingers were totally crushed. Crushing of the fingers with total loss has not been provided for any where specifically. In my opinion any exercise by this Court for categorising the loss under the provisions of the Employees State Insurance Act would be too hazardous because neither the medical evidence has been led by any parties on that basis nor any specific category is being shown by any of the parties. The loss of toes of both feet have been provided for but not loss of fingers in the schedule so far as pointed out to me.

(3.) IN that view of the matter I am constrained to observe that the handicapped washer man and that too an injured a victim of accident with poor resources is facing in this case, it would be a preciated against the mighty resources of the corporation.