JUDGMENT P. Subramonian Poti, J. 1. Despite the non appearance of respondent and counsel in this case we had occasion to hear both sides of the case as counsel Mr. V. Rama Shenoi appearing for the appellant fairly placed all aspects of the case before us in this appeal. The Workmens' Compensation Commissioner, Ernakulam has awarded the respondent compensation of a sum of Rs. 3780 for partial disablement suffered by him as a result of an injury caused in the course of his employment. The appellant is the Superintendent of Pullikanam Estate at Peermade and the respondent was a workman in that estate. On 31st May 1977 while the respondent was pruning the tea bushes an injury was caused to his left index finger. One phalanx of the left index finger was cut off. Injuries were sustained by the middle and ring fingers by which according to the respondent those fingers were incapacitated so that no work could be done with the use of those fingers. Based on the monthly wages at Rs. 143.52, 20 per cent for permanent partial disablement was claimed. That was allowed and consequently a sum of Rs. 3780 was awarded as compensation. That is the subject of this appeal. 2. There is the medical certificate issued by the doctor who treated the respondent workman. That showed that one phalanx of the left index finger had been cut off and there were injuries to the other two fingers. Further the certificate mentioned that a total permanent disability of 20 per cent according to the Workmen's Compensation Act had resulted from the accident. The doctor who issued the certificate was not examined. 3. It may be noticed that there was no dispute as to the nature of the injury suffered by the respondent. The written statement filed by the appellant categorically admitted the loss of the phalanx of the index finger and the injuries to the other fingers. It further categorically admitted that because of such injury the workman would not be able to carry on the work which he was attending to at that time. But alternative work was offered for the workman. Whether this is sufficient answer is one of the questions that we will have to consider 4. Learned counsel Sri Rama Shenoi mainly stressed two points.
But alternative work was offered for the workman. Whether this is sufficient answer is one of the questions that we will have to consider 4. Learned counsel Sri Rama Shenoi mainly stressed two points. First, without medical evidence in the form of a statement of the doctor on oath the certificate would be of no use. The second point is evidently that the employer having offered alternate employment on the same wages loss of earning capacity cannot be found in this case and if so the award of compensation would be unjustified. 5. It is true that if the medical certificate is necessary to be proved in this case the examination of the doctor, who issued the certificate, would be necessary. The counsel referred to the decision of the Travancore - Cochin High Court in M. S. N. Company v. Mohammed Kunju ( AIR 1956 TC 55 ) and that of the Calcutta High Court in Kali Das v. S. K. Mondal ( AIR 1957 Cal. 660 ). We need not go into this question for we are not called upon in this case to treat the certificate of the doctor as evidence. The doctor would be competent to speak to the injury and the consequence of the injury. He would be competent to say how far the person who had suffered the injury, has been immobilised by the said injury. But what is the extent to which the injured has lost his earning capacity must primarily be a matter for other evidence. In this case the evidence of the doctor is not necessary to establish the injury. The nature of the injury suffered by the respondent is admitted in the written statement. There is no controversy. There is no controversy even as to the fact that such injury had resulted ia the disablement of the workman so much as he could no longer attend to the work he has used to do. There is no averment in the objection statement in categorical terms that the workman's earning capacity was not affected. We are saying this because this assumes considerable relevance on the facts of this case. Whether an offer of other employment at.
There is no averment in the objection statement in categorical terms that the workman's earning capacity was not affected. We are saying this because this assumes considerable relevance on the facts of this case. Whether an offer of other employment at. the same wages would be sufficient answer in the absence of a plea that earning capacity has not been affected is a question which will have to be considered in the light of the arguments advanced before us by counsel Sri Rama Shenoi. 6. Reference was made to a case King v. Port of London Authority (1920 Appeal Cases 1) in support of the contention of the learned counsel that where there is no present incapacity but that is reasonable probability of future incapacity the proper course for a court to adopt would be the suspension of the pronouncement on the question so as to leave it to be adjudicated on a later occasion when loss of earning capacity actually arises. Whether within the framework of the Workmens' Compensation Act in force in India such a decision would be possible is a matter of some interest. But the examination of that may not be called for in this case, for, the question is not whether there is a likelihood of loss of earning capacity later, but whether there is loss of earning capacity at present. The plea is that there is. The claim for compensation is on that account. In answer there is an offer to employ the person concerned on the same wages as if that would be our answer to the plea of loss of earning capacity. 7.
The plea is that there is. The claim for compensation is on that account. In answer there is an offer to employ the person concerned on the same wages as if that would be our answer to the plea of loss of earning capacity. 7. S.2(g) of the Workmens' Compensation Act, 1923 defines "partial disablement" thus: "'Partial disablement' means where the disablement is of a temporary nature, such disablement as reduces the earning capacity of a workman in any employment in which he was engaged at the time of the accident resulting in the disablement, and, where the disablement is of a permanent nature, such disablement as reduces his earning capacity in every employment which he was capable of undertaking at that time: provided that every injury specified in Part II of Schedule I shall be deemed to result in permanent partial disablement." S.3 provides that if personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of Chap.2. S.4 provides for determining the amount of compensation. We are concerned in this case with S.4(c) which deals with a case of permanent partial disablement resulting from the injury. If the injury is one specified in Part 2 of Schedule I of the Act such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as the percentage of loss of earning capacity caused by the injury could be recovered as compensation. If the injury is one not specified in Schedule I it would be such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity permanently caused by the injury. Therefore the first question would be whether an injury is one which falls within Part II of Schedule I or not. If this falls within it irrespective of any question whether there is loss of earning capacity the compensation is to be determined in accordance therewith. Where it does not fall within Schedule I the proportion will depend upon loss of earning capacity caused by the injury. 8. In this case the loss of the phalanx of the left index finger falls within Schedule.1, Part II.
Where it does not fall within Schedule I the proportion will depend upon loss of earning capacity caused by the injury. 8. In this case the loss of the phalanx of the left index finger falls within Schedule.1, Part II. It is Item No, 29 and the percentage of loss is 9. The other two fingers if they have become completely useless for work must be treated lost in view of the note to the schedule which reads: "Complete and permanent loss of the use of any limb or member referred to in this schedule shall be deemed to be the equivalent of the loss of that limb or member," In the petition it is categorically averred that the middle and ring finger which were cut had consequently become incapacitated to do any work. There is no categorical reply to this and if that be so the pleading remains uncontroverted. This may be sufficient to treat the plea as one of loss of use of the fingers which by reason of the note is equivalent to the loss of the fingers. The loss of two such fingers would attract loss of earning capacity at 20 per cent and the aggregate would thus be 29 per cent. Only 20 per cent has been found by the order under appeal. This will be sufficient to answer the appellant's case. 9. Even otherwise, when the plea of loss of earning capacity has not been denied categorically in the objection statement and the only answer is one offer of alternative employment, the workman will be entitled to compensation. S.2(g) refers to the reduction in the earning capacity in other employment which the injured workman is incapable of undertaking at the time and not merely the loss of earning capacity in the employment in which he was at the time he suffered the injury. Therefore it is not sufficient to say that in the particular employment in which he was at the time he suffered the injury he would earn lesser wages, but in any other employment in which he is capable of engaging himself his earning capacity would be reduced. That means that if the person is to offer himself for work of a kind which his qualification and capacity would justify whether he would get the same wages is the matter to be considered.
That means that if the person is to offer himself for work of a kind which his qualification and capacity would justify whether he would get the same wages is the matter to be considered. The respondent herein can engage himself in manual unskilled work. There is no case that he is literate so that he can engage in occupations other than those requiring only manual work. The question is whether as a manual labourer if he offers himself for work he would get the same wages as others are generally offered. The answer by the employer is not that he would get the same wages generally but that he has offered the same wages. The appellant may perhaps out of his good sense offer this, but that will not answer the question whether there would generally be such an offer for him. May be the appellant may change his mind or his successors in the office may not show a similar attitude. In other words the question is not whether the injured person is offered a job at the same wages by the employer but whether despite the disability he has suffered he would generally get same wages. If that be the situation the mere offer by the employer will not be the answer. On the pleadings no other aspect of the question would arise. In the circumstances we dismiss the appeal. We direct the parties to suffer their respective costs.