Madras High Court
V. Jayaraj vs Thanthai Periyar Transport ... on 25 August, 1987
Equivalent citations: (1989)IILLJ38MAD
JUDGMENT
1. Applicant is the appellant. This an appeal against the order passed by the learned Additional Commissioner for Workmen's Compensation II, Madras, in W.C. Case No. 75 of 1979 filed by the appellant, granting a compensation of Rs. 5,880/- to the appellant to be paid by the opposite party viz., the respondent herein, for the injury sustained by the appellant during and in the course of his employment under the respondent herein.
2. The appellant herein filed the application claiming compensation alleging that previously he was working in the State Transport Department since 1969, that his services were taken over by the Thanthai Periyar Transport Corporation in the year 1976, that he was employed as a conductor in the Thanthai Periyar Transport Corporation and was working in the Madras Branch, that during 1978 he was drawing a monthly salary of Rs. 430/-, that on 11th June 1978 he was on duty in Bus route No. 174 and he was proceeding as a conductor in the bus bearing Registration No. TMN 7530 from Madras to Tirukoilur, that at about 8.30 a.m., the bus capsized and overturned at Vedanarayanapuram near a distillery factory when the driver tried to negotiate and to avoid dashing with the vehicle coming from the opposite direction, and during the said accident one Jayakumar, who was employed as a Fitter under the opposite party, died on the spot and the appellant got severe injury and that he was first treated at the Government Hospital at Chengalpattu and later at the General Hospital, Madras, and in spite of the best medical treatment he lost hearing beyond recovery due to shock received by him in the accident. The injury sustained by him was due to the accident which arose out of and in the course of employment with the opposite party and the injury suffered by him is listed as item '6' in Part-I of Schedule-I of the Workmen's Compensation Act and the loss of earning capacity is cent per cent. So he claimed Rs. 29,400/- as compensation.
3. The opposite party viz., the respondent herein, in the counter, admitting the employment of the workman as well as the duty of the workman in the bus TMN 7530 on 11th June 1978 and also about the accident, contended that the appellant suffered only a simple injury in the accident and was treated as an out-patient and therefore the appellant has to prove by proper and necessary medical evidence about his loss of hearing and that it was as a result of the accident. The appellant did not make any complaint about such loss of hearing or about short hearing immediately after the accident and the respondent was informed about it only after seven months from the date of accident. There was no reduction in his emoluments and he continued to receive the same amount of wages as he was drawing and he was also discharging his duties in the same post as a Conductor and neither his pay nor his status had been reduced and on 27th January 1979 he requested the respondent to provide him some hearing aid since he was feeling short of hearing and the respondent helped him in arranging for the supply of hearing aid as a welfare amenity at the cost of the respondent. Therefore the respondent prayed for the dismissal of the application.
4. Besides the appellant, one Dr. Ganapaty and another Dr. Ramalingam had been examined as A.Ws. 1 and 2 before the Additional Commissioner for Workmen's Compensation. The appellant in his statement has stated that he had given a report about the accident that took place on 11th June 1978 and has also stated that as a result of the accident he suffered difficulty in hearing and he underwent treatment under Dr. Ramalingam and he had also claimed the medical expenses incurred by him under Ex. A-3 and he also underwent treatment in the General Hospital at Madras and he claimed compensation from the respondent and he did not get any reply. In the cross-examination he has stated that firstly he was treated at Government Hospital, Chengalpattu, as an out-patient and subsequently he went to Dr. Ramalingam and he had undergone treatment for two years. He has also stated that besides loss of hearing he felt giddiness, and has also admitted that he is doing his duties as a conductor without any complaint. A.W. 1, Dr. Ganapathy working as a Research Assistant at Neuro Otology Clinic, E.N.T. Department, Government General Hospital, Madras has deposed with reference to Ex. A-9 series, which related to the said doctor examining the appellant during the months of August, 1978 and September, 1979, and issue of certificate marked as Ex. A-5. A.W. 1 had taken audiogram of the appellant and he has stated that the audiogram revealed mixed loss of hearing in both ears. He has also stated that the patient has post-traumatic audio verticular affliction and he had given the certificate Ex. A-8 in that regard. He has also stated that the loss of hearing and vertigo could have happened due to the head in injury and further he has stated that the appellant cannot have any improvement in hearing in the right ear and it is almost dead, but in the left ear hearing aid will help him to a certain extent. No doubt he has stated that he could not give the exact per centage of loss of earning capacity. In the cross-examination he has stated that the appellant can perform his duties as a conductor with difficulty. Dr. Ramalingam, working in the General Hospital, E.N.T. Department, has deposed about the treatment given by him to the appellant from 12th June 1978 to 2nd August 1978 and he has stated that after that period he directed the appellant to go to E.N.T. Department, General Hospital, for treatment of his deafness and giddiness and noise in the ear. He has issued the certificates marked as Ex. R-1 as well as Ex. A-7.
5. The Additional Commissioner for Workmen's Compensation, taking into consideration the case put forward on behalf of the respondent that the workman/appellant continued to be employed as a Conductor getting the same wages, came to the conclusion that there is no loss of his earning capacity. Pointing out the gesture of the respondent in supplying hearing aid to the appellant, but at the same time accepting the injury suffered by the appellant, held that the loss of earning capacity will not be cent per cent. as claimed by the appellant and, therefore, the Commissioner fixed the loss of earning capacity as 20 per cent. and accordingly granted the compensation of Rs. 5,880/-. Aggrieved with the said order, only regarding the quantum of compensation, the present appeal has been filed.
6. In the present appeal the appellant has come forward with the contention that the order of the learned Additional Commissioner for Workmen's Compensation is not proper and the learned Commissioner has fixed the loss of earning capacity of the appellant at 20% without proper scrutiny of the evidence of the doctors and the certificated issued by them and accordingly contended for setting aside the order passed by the learned Additional Commissioner for Workmen's Compensation and for allowing the claim in full.
7. The point that arises for consideration in this appeal is as to whether the appellant is entitled to the compensation of Rs. 29,400/- basing the loss of earning capacity at cent per cent.
8. Ex. A-4 is the would certificate issued to the appellant, dt. 22nd December 1978. D. A-4 reveals that the appellant complained of giddiness and head ache and there was no external injury and the X-Ray of the skull revealed no bony injury and he was treated as out-patient. In Ex. A-4 it is also noted that the injury was simple. There is also reference in Ex. A-4 about the appellant treated with cervical traction from 8th November 1978 to 20th December 1978 as certified by the Institute of Otorhino-Laryngology that it is a case of post traumatic audio vestibular affliction. Ex. A-5 also clearly indicates that the appellant suffered from post-traumatic audio vestibular affliction. He is shown to have complained of hard of hearing and vertigo. No doubt only in the month of January 1979 the appellant is shown to have come forward with application for compensation under Ex. A-6. The certificate issued by A.W. 2, dt. 26th August 1979 also reveals that the appellant had suffered injury on the right side of the neck, shoulder and head and he was undergoing treatment from 12th June 1978 to 2nd August 1978. He had been advised to attend E.N.T. Department, General Hospital. Ex. A-8, dated 28th September 1978, which had been issued by A.W. 1 is to the effect that there is cent per cent. sensorineural hearing loss on right ear and 73.5 per cent. hearing loss on the left ear. Having regard to the testimony of the doctors and the certificates issued by them it has to be stated that the approach made by the Additional Commissioner for Workmen's Compensation, while granting compensation restricting the loss of earning capacity to 20 per cent. is certainly erroneous. In this connection the learned counsel for the appellant submitted the decision reported in Executive Engineer, P.W.D. (B & R) v. Narain Lal (52 F.J.R. 67). In the said decision it has been stated that the fact that the workman continued in the same employment with all the benefits and normal increments will not be a decisive factor for loss in the earning capacity. It has been laid down that the loss in the earning capacity has to be calculated in terms of the permanent partial disability which the workman has been subjected to. What has to be found out is the reduction in earning capacity suffered by the workman in every employment which he was capable of undertaking at the time of the accident. In Schedule I, Part I, Item 6 of the Workmen's Compensation Act, which deals with absolute deafness, the percentage of loss of earning capacity is shown as cent per cent. In this case the evidence of the Doctor Ganapathi, who was examined as A.W. 1, along with the certificate Ex. A-8, will clearly make it clear that the appellant is having cent per cent. sensorineural hearing loss on right ear and 73.5% hearing loss on the left ear. No doubt the appellant has been shown to have continued in the employment of the respondent and he had been discharging his duties as a conductor without any complaint and the respondent also is shown to have supplied a hearing aid. In the case reported in Executive Engineer, P.W.D. (B & R) v. Narain Lal (supra) the decision reported in Commissioner for Port of Calcutta v. Prayag Ram (1967-II-LLJ-302) has been quoted, which is as follows (p. 305) :
"The physical defect, if it occurs as a result of the accident, may not in fact reduce his capacity to do work, but if as a result of disfigurement or otherwise it makes his labour unsaleable to any market reasonably accessible to him, then also there will be diminution or loss in the earning capacity. 'Incapacity for work' is not the same thing as 'incapacity to work'. It means the loss or diminution of wage-earning capacity and it includes inability to work if that be the result of the accident."
It is also pointed out further, as laid down in the Calcutta decision, that the fact that he is still holding the old post and getting old wages because his employer is giving them to him by way of grace it would be a complete misunderstanding of the Workmen's Compensation Act to hold that in such circumstances the workman will not be entitled to any compensation Pointing out the theme in the Workmen's Compensation Act to provide security to the workman who received partial incapacity resulting in a loss in the earning capacity, it has been held therein that the extent of loss in the workman's capacity has to be calculated under the Workmen's Compensation Act having regard to all facts. Applying the principles laid down therein. I feel the fixing of loss of earning capacity at 20 per cent. by the learned Additional Commissioner for Workmen's Compensation cannot be upheld. Having regard to the fact that the appellant had lost the hearing in the right ear at 100% and in the left ear at 73.5%, the loss of earning capacity, I feel, could be fixed at 60 per cent., which will come to Rs. 17,640/-.
9. In the result the Civil Miscellaneous Appeal is allowed enhancing the compensation awarded by the learned Additional Commissioner for Workman's Compensation to Rs. 17,640/- (Rupees seventeen thousand six hundred and forty only) with costs.