Orissa High Court
Prasanta Kumar Majhi vs Managing Director, Orissa Mining ... on 2 March, 2001
Equivalent citations: 2002ACJ942, [2001(91)FLR274], (2001)IILLJ77ORI
Author: Pradipta Ray
Bench: Pradipta Ray, A.S. Naidu
JUDGMENT Pradipta Ray, J.
1. The appellant is a Truck driver in the Orissa Mining Corporation (in short 'Corporation'). At the material time he was working as the driver of a Truck beating No, ORY 3350 of the Corporation. On July 9, 1990 while he was driving the said Truck, an accident took place on National Highway No. 5. The appellant filed a claim case before the Assistant Labour Cominissioner-cum-Commissioner for workmen's Comensation, Cuttack claiming compensation of Rs. 1 lakh alleging that he had suffered 100% loss of earning capacity. By the judgment and order dated April 27, 1992 the Workmen's Compensation Commissioner assessed the loss of earning capacity at 35% and awarded a compensation of Rs. 34,895/-. The Insurance Company. filed Misc. Appeal No. 374 of 1992 in this Court. By judgment and order- dated February 16, 1995 the Hon'ble Single Judge allowed the said appeal and set aside the judgment and order of the Commissioner for Workmen's Compensation. Being aggrieved the present appellant has filed this Letters Patent Appeal.
2. Admittedly, even after the accident the appellant has been working as Truck driver in the Corporation and has not suffered any loss of earning The Commissioner assessed the loss of earning capacity merely on the basis of the Doctor's evidence without considering acceptability of the same in the light of other materials on record. It appears that after the accident the appellant himself wrote a letter to the Corporation (Ext. A/1) in which he did not mention anything about the injuries sustained by him. Even the injury report does not reveal any compound fracture or serious injury. The appellant himself gave a statement on July 9, 1990 (Exc. A-2/1). In the said statement also he did not mention about any major injury. He merely mentioned some minor injuries on left leg. No X-Ray report was exhibited in support of the story of fracture. As already mentioned, he has been continuing as Truck driver and has not been shifted to any other job because of any incapacity or inability to act as the driver.
3. A compensation under the Workmen's Compensation Act is to be given if the workman concerned has suffered any loss of earning capacity in any accident in course of his employment. Loss of earning capacity is the basis for grant of compensation. Where there is no loss of earning capacity, an employee is not entitled to get compensation under the Workmen's Compensation Act. In the impugned judgment the Hon'ble Single Judge held that the present appellant did not suffer any loss of earning capacity. We have also perused the undisputed materials on record and do not find any reason to differ from the view taken by the Hon'ble Single Judge.
4. Mr. T. C. Mohanty, learned Advocate for the appellant has submitted that appeal u/s. 30 of the Act can be filed only if a substantial question of law is involved, that a finding regarding loss of earning capacity is a finding of fact and that an appeal questioning assessment of loss of earning capacity should not have been entertained. In the Miscellaneous Appeal the question involved was that if an injured continues in the same employment and earns same salary and allowances, whether he can complain of loss of earning capacity? The said question was definitely a substantial question of law to be settled for guidance in Workmen's Compensation Cases. We are unable to accept the contention that the question involved in the appeal was not within the scope of section 30 of the Workmen' Compensation Act. He has further pointed out that the compensation awarded was not deposited before filing of the appeal and the appeal should have been dismissed on that ground. Mr. Mohanty has urged that as the loss of earning capacity is different from loss of earning, compensation cannot be denied merely because the concerned workman is getting same emolument after the accident.
5. In the present case the Hon'ble Single Judge found that the present appellant was not entitled to any compensation. The present appellant has not in fact suffered any prejudice for non-deposit of the awarded compensation. Moreover, it does not appear that any such question was raised in the Miscellaneous Appeal.
6. In support of his submission that extent of loss of earning capacity is a question of fact, Mr. Mohanty has cited a decision of the Punjab & Haryana High Court in Maghar Singh v. Jaswant Singh, 1994(2) T. A C. 194 and a decision of the Karnataka High Court in Aslam Sirdar Ahmed Bepari v. Mohammed Ghouse Kutubuddin Dharwadkar & another, reported in 1998 A C. J. 836. In Maghar Singh (supra) the question involved was a pure and simple question of fact. The said decision does not apply to the present case. Aslam Sirdar's case does not support the submission of Mr. Mohanty. It has been held therein that even a finding of fact which has been arrived at ignoring relevant material is a finding vitiated by substantial error of law and an appeal u/s. 30 of the Act is maintainable.
7. To buttress his argument that Appeal without deposit of the awarded amount was not entertainable. Mr. Mohanty has referred to a decision of this Court in National Insurance Company v. Narendra Samal and another reported in 1993(1) T. A. C. 368. The said decision shows that the provision for deposit of the compensation is not mandatory in all kinds of appeals. It is mandatory and fatal only when it causes substantial loss or prejudice to the claimant. The said decision does not apply to the facts and circumstances of the present case.
8. In support of his submission that earning full salary and continuation in employment cannot be a ground for denial of compensation on account of loss of earning capacity. Mr. Mohanty has placed reliance on a decision of this Court in Chief Workshop Manager (P) Carriage Repair Workshop, Bhubaneswar v. Akshaya Kumar Rout (1996 A. C. J. 444). In the said decision relying upon several decisions the Hon'ble Single Judge of this Court held :
"In considering loss of earning capacity in case of 'permanent partial disablement' the comparison between the wages drawn by the workman before and after the accident, from his employer at the time of the accident is not a determinative factor. If that be so, a cunning employer to tide over liability may offer a temporary employment in the claimant workman to deprive the latter his entitlements under the Act. That would be against the legislative intent. This Court also had occasion to deal with an almost similar case where a plea of existing job allotment and non-reduction in wages was involved. The employer-appellant was the employer in that case. A view similar to the one taken by the above decision was taken (see Debaki Swain v. Executive Engineer, Electrical Division, Bhawanipatna, Orissa State Electricity Board, 1988 A. C. J. 836 (Orissa). Therefore, the plea that there being no loss in the wages, compensation could not have been awarded is not acceptable."
with due respect it is not possible for us to agree as, a general proposition that continuation in same employment without any loss in wages cannot mean that there is no loss of earning capacity. It depends upon facts of each case. For example, if a person injured is shifted to another kind of job with same wages/salary as the injury has made him unfit for continuing in the work he was performing before accident, he can claim loss of earning capacity even though there is no actual loss of earning. There can be loss of earning capacity even if there is no actual loss of wage. But when the injured-workman continues to do the same work without any difficulty and earns the same wage, he cannot be said to have suffered any loss of earning capacity.
8. For the foregoing reasons, we do not find any merit in this appeal. Accordingly, the same is dismissed.
A.S. Naidu, J.
I agree.
9. A. H. O. dismissed.