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2004 DIGILAW 31 (MP)

Rajesh v. M. P. Electricity Board

2004-01-13

P.C.AGARWAL

body2004
JUDGMENT This appellant had been working for 4 years as an employee of Madhya Pradesh Electricity Board (Board for short) (R-1) on Rs. 950/per month as wages. On 26.7.1994 the appellant with other employees Dilip and Suresh had been loading big bundles of wires in a truck. Suddenly one such big bundle slipped from the shoulder of co-workers Dilip and Suresh and fell on the chest and right leg of the appellant fracturing both tibia and fibula bones. Appellant became unconscious and was taken to Ambedkar Hospital, Mhow and after providing first aid was sent to M.Y. Hospital, Indore where be remained admitted for 5 days. His right leg was put to plaster. Later his leg was put to plaster 4 times but his right leg was shortened. He has become disabled and can walk only with the help of crutches. Despite notice he was neither re-employed nor his back wages were paid. Thus, a claim was filed under Workmen Compensation Act, 1923 (Act for short) for 1.58 lacs. Board (R-l) had taken the stand that the appellant had been a daily wager. He had suffered a fracture which was cured after the same was put to plaster. According to Board (R-1) there had been no diminution in his earning capacity and the appellant was not entitled to get any compensation for mental strain, medical expenses, special diet, etc. The Commissioner holding that permanent disablement was only to the extent of 15% and awarded Rs. 15,454/- as compensation with interest @ 6% per annum. This appeal under section 30(i) of the Act on following substantial question of law are involved: (a) Could the Commissioner hold the extent of disability at 15% only against the certificate of Doctor. (b) The Commissioner erred in not imposing penalty on the Board (R-1). Appellant had examined himself Rajesh as (A W-1) and Dilip Solanki (A W-3) to prove the accident. From Their evidence it is amply proved that the appellant had sustained injury during the course of his employment. Dr. Sapan Kumar Banerjee (A W 2) has proved that due to fractures of tibia and fibula of right leg, appellant had suffered permanent disability which he had assessed to the extent of 30% calculated by macbride formula and other formulae. His certificate had been on record with other medical record and X-ray plates. Dr. Sapan Kumar Banerjee (A W 2) has proved that due to fractures of tibia and fibula of right leg, appellant had suffered permanent disability which he had assessed to the extent of 30% calculated by macbride formula and other formulae. His certificate had been on record with other medical record and X-ray plates. Appellant had remained admitted in M.Y. Hospital, Indore between 6.12.1994 to 14.12.1994. Dr. Sapan Kumar Banerjee (PW 2) had assessed the permanent disability to the extent of 30%. He had noted diminution in quickness of motion, coordination, strength, security, endurance, safety as workman and prestige of normal physic on socurity and passing employment. The method used by him has been scientific and based on data available. The Commissioner held that diminution in coordination, strength and security are not factors of permanent disability. In my considered opinion the Commissioner had been clearly at error in giving such a finding. Diminution of coordination, strength and security are definitely important factors affecting the physical fitness of a labour. Thus, in my considered opinion, the Commissioner should have assessed the permanent disability to the extent of 30% instead of 15%. Prahlad Gupta (NAW-l) had admitted that the appellant used to work on muster roll that is on dally wages. According to him appellant was not expelled from the work but he himself did not return to work. Appellant himself Rajesh (A W-l) has admitted that he is still working as a labour in construction work in other words admitting he is not fully disabled. On this evidence the present is not a case of 100% disability unlike G. V. Venkatesh Babu v. Krishna Kumar 2002 ACJ 1998 , Pratap Narain Singh Deo v. Srinivas Sabata 1976 ACJ 141 (SC). It is well settled that loss of earning capacity has to be adjudged or determined looking both to the nature of injury sustained, as per the opinion of Doctor and the nature of work carried out by the labour as far Anwar Hussain v. Khalif Mohd. 2000 (1) MPWN 50 based on Bharat Singh v. Pluton Cement Pvt. Ltd. 1999 ACJ 496 , Shankarlal v. General Manager, Central Railway Bombay 1990 ACJ 1028 . Medical evidence as to loss of physical capacity is an important factor to determining loss of earning capacity Sarat Chatterjee and Co. v. Mohd. Khalil 1979 ACJ 106, Bangal Coal Co. 2000 (1) MPWN 50 based on Bharat Singh v. Pluton Cement Pvt. Ltd. 1999 ACJ 496 , Shankarlal v. General Manager, Central Railway Bombay 1990 ACJ 1028 . Medical evidence as to loss of physical capacity is an important factor to determining loss of earning capacity Sarat Chatterjee and Co. v. Mohd. Khalil 1979 ACJ 106, Bangal Coal Co. Ltd. v. Barhan Gope 1983 (II) ILLJ 86. In the facts of the present case, the learned Commissioner had certainly been wrong in discarding the opinion of Doctor Sapan Kumar Banerjee (AW 2) as in sufficient reasons. Certainly, the extent of diminution in earning capacity had been to the extent of 30% as per medical evidence. Thus, an enhncement of Rs. 15,454/- with interest @ 6% per annum since the date of accident i.e. 26.7.1994 has to be allowed. As the Board (R-1) had failed to pay the compensation within a month of accident, the Board (R-1) is liable to pay penalty also @ 10% of the awarded amount. Thus, this appeal allowed in part. The respondent shall pay additional compensation of Rs. 15,454/- with interest @ 6% per annum since 26.7.1994 besides the amount already awarded by the commissioner to the appellant. The Board (R-1) shall further pay an amount of Rs. 3,090/- as penalty to the appellant.