Madras High Court
Parasurama Oil Mills vs S. Kannan on 19 September, 1990
Equivalent citations: II(1991)ACC409, 1992ACJ95
JUDGMENT K.M. Natarajan, J.
1. This appeal is directed by the management against the award of Rs. 4,116/- passed by the Commissioner for Workmen's Compensation, Madras in W.C. No. 109 of 1981.
2. The case of the respondent is that he was a workman under the appellant right from the year 1970 and he was paid a sum of Rs. 480/- per month as wages. Apart from this, he was paid daily a sum of Rs. 3/- covering tea expenses and bus fare. On 12.12.1980 at 6 a.m. he met with an accident during the course of his employment in the oil mills belonging to M/s. Parasurama Oil Mills, the appellant herein and got his right hand index finger severely injured. He was thereafter immediately taken to the hospital by a co-worker by name Krishna and consequent upon the injury sustained by him, it became permanent disability and the movement of his finger was completely paralysed. Hence, he claimed compensation of Rs. 4.500/-.
3. The said application is resisted by the appellant herein and he has filed a counter-affidavit. The fact that the respondent was employed under the appellant and that he met with an accident is not seriously disputed. It was contended that the respondent never used to work continuously and he had worked only periodically and that the accident was only a minor accident. The allegation that the disability caused to the appellant was permanent and that the movement of his finger was completely paralysed was denied. It is stated that the respondent is not entitled to any compensation for the same much less Rs. 4.500/- as alleged. It is also stated that the respondent herein borrowed Rs. 500/- from the appellant and he was unable to pay the same. Hence he prayed for dismissal of the petition.
4. On the side of the respondent, he was only cross-examined and Exhs. A-1 to A-6 were marked. The Commissioner for Workmen's Compensation, namely, the Tribunal below, came to the conclusion that the employment of the workman, namely, the respondent, under the appellant and his getting injured during the course of his employment was not disputed by the appellant and what was disputed was the amount of monthly wages paid to the respondent herein. As such, he framed two points, one with regard to the amount of monthly wages and another with regard to the quantum of compensation payable. The respondent produced Exhs. A-4 and A-5 which are registers for wages from 5.4.1977 to 8.1.1979. The appellant herein has not produced any contra evidence or registers. Hence, under issue 1, on the basis of Exhs. A-4 and A-5, the Tribunal came to the conclusion that the monthly wages received by the respondent was Rs. 480/-. As regards the quantum of compensation, the Commissioner arrived at the percentage of loss of earning capacity at 14 per cent as per item 27 of Part II of Schedule I under Sections 2(1) and 4 of the Workmen's Compensation Act and worked it out to Rs. 4,116/-. It is only against the same the present appeal is filed.
5. The learned Counsel for the appellant, Mr. P.K. Gopal Raj submitted that as per medical certificate Exh. P-1 issued by the Plastic Surgeon, the loss of earning capacity of the respondent has been assessed at 7 per cent while the Commissioner fixed the loss of earning capacity at 14 per cent and as such, the quantum awarded by the Commissioner is excessive and beyond proportion and that the order of the Tribunal requires modification on the basis of Exh. A-1, medical certificate issued in this case.
6. Per contra, the learned Counsel for the respondent submitted that in Section 4(1)(c) of the Workmen's Compensation Act, it is provided that in the case of an injury specified in Part II of Schedule I, such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury, and in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury. In the instant case, the injury sustained by the respondent would clearly fall under item 27 of Part II of Schedule I and the percentage of loss of earning capacity as per the said Schedule comes to 14 per cent. The court below took into consideration the nature of the injury sustained by the respondent and correctly applied the provisions of the Workmen's Compensation Act, 1923 and the rules framed thereunder and fixed the compensation. There is no contra view possible. Further there is no substantial question of law in this appeal, for this Court to interfere with the finding of the Tribunal as required under Section 30 of the Act and as such the appeal has no merit and is liable to be dismissed. The case of the respondent is that as a result of the accident, he sustained severe injury on his right hand index finger, that it caused total and permanent disability and that the movement of the finger has been completely paralysed. The finding of the Tribunal is that the disability caused to the workman is a partial permanent one and as a result of the injury his right hand index finger has become useless amounting to amputation. It is only on the basis of the same, the Tribunal came to the conclusion that the percentage or loss of earning capacity of the respondent is 14 per cent as per item 27 of Part II of Schedule I. Under Section 2(1)(c) compensation has been defined as one provided for by the Act. In this connection, the learned Counsel for the respondent drew the attention of this Court to the decision in Proprietor, Swarnambiga Motor Service v. M. Muthuswami (1959) 3 MLJ Criminal 802, wherein it was specifically held that the jurisdiction to decide the loss of earning capacity of an injured workman is with the Commissioner and that medical evidence being only opinion evidence would not be decisive of the question and that the Commissioner had to independently give a finding as to the extent of the loss of earning capacity. In Jowala Prosad v. Bhola Routh AIR 1963 Assam 7, a Division Bench held:
The question whether there was a permanent partial disablement of the finger is a question of fact and when there is a clear finding on the point by the Commissioner, the High Court will not examine evidence on that point.
Hence it is clear that even assuming that the medical officer who issued the certificate Exh. A-1 opined that the loss of the earning capacity of the respondent would be 7 per cent in view of the nature of the injury noticed by the Commissioner, it is open to the Commissioner to assess the compensation as per the provisions of the Act and he is not bound by the opinion regarding the loss of earning capacity given in the medical certificate. As already stated, from the nature of the injury sustained by the respondent and the evidence adduced in the case, the Commissioner has determined the nature of the injury and assessed the loss of earning capacity as per the provisions of the Act and that it is purely a question of fact and no interference is called for on that score. In this connection, the learned Counsel for the respondent drew the attention of the court to the provisions under Section 30 of the Act which deals with appeals to the High Court. In that section there is a proviso to the effect that no appeal shall lie against any order unless a substantial question of law is involved in the appeal. In this connection, the learned Counsel drew the attention of this Court to the decision in N.L. Lalan v. V.A. John 1972 ACJ 248 (Kerala), wherein V.R. Krishna Iyer, J. (as he then was) held as follows:
There is an initial obstacle in the way of the appellant because the first proviso to Section 30 which confers the appellate power on the High Court, restricts appeals to cases where a substantial question of law is involved.
The learned Judge also observed:
I should construe the proviso to Section 30 as to inhibit appeals at the instance of the employers even if there be some question of law or gross errors of fact unless very substantial legal issues arise.
In view of the proviso to Section 30, following the ratio laid down in the above decision, there is no difficulty in holding that there is no substantial question of law in this appeal and hence this Court ought not to interfere with the award of compensation by the Commissioner. I have no hesitation in holding that the appeal is liable to be dismissed.
7. In the result, the appeal fails and stands dismissed. However in the circumstances of the case, there will be no order as to costs.